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Federal Court of Australia - Full Court |
Last Updated: 12 December 2008
FEDERAL COURT OF AUSTRALIA
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188
ADMINISTRATIVE LAW – Cabinet
documents – document prepared for purpose of submission to Cabinet –
internal working documents –
public interest – onus of proof –
findings of fact made by Tribunal – no question of law
Administrative Appeals Tribunal Act 1975
(Cth) s 44
Freedom of Information Act 1982 (Cth) ss 34, 36
Australian Broadcasting Tribunal v Bond
[1990] HCA 33; (1990) 170 CLR 321 considered
Australian Gas Light Co v
Valuer-General (1940) 40 SR(NSW) 126 cited
Australian National
Railways Commission v Collector of Customs (SA) [1985] FCA 312; (1985) 8 FCR 264
considered
Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA
1457 applied
Birdseye v Australian Securities and Investments Commission
[2003] FCAFC 232, 76 ALD 321 applied
Bradshaw v McEwans Pty
Ltd (HCA (1951) unreported) cited
Brown v Repatriation Commission
[1985] FCA 194; (1985) 7 FCR 302 applied
Brown v Repatriation Commission [2006] FCA
914 cited
Casey v Repatriation Commission (1995) 60 FCR 510
cited
Colby Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165
FCR 133 followed
Collector of Customs (NSW) v Brian Lawlor Automotive Pty
Ltd [1979] FCA 21; (1979) 41 FLR 338 applied
Collector of Customs v Pozzolanic
Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 cited
Collector of Customs,
Tasmania v Flinders Island Community Association [1985] FCA 232; (1985) 7 FCR 205
cited
Comcare v Etheridge [2006] FCAFC 27, 149 FCR 522
applied
Commonwealth v Construction, Forestry, Mining and Energy Union
[2000] FCA 453, 98 FCR 31 cited
Drake v Minister for Immigration and
Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 applied
Federal Commissioner of
Taxation v Cainero (1988) 88 ATC 4427 cited
Federal Commissioner of
Taxation v Dalco [1990] HCA 3; (1990) 168 CLR 614 cited
Harris v Australian
Broadcasting Corporation [1983] FCA 242; (1983) 78 FLR 236 applied
Hope v Bathurst
City Council [1980] HCA 16; (1980) 144 CLR 1 cited
Hussain v Minister for Foreign
Affairs [2008] FCAFC 128, 169 FCR 241 cited
Jorgensen v Australian
Securities and Investments Commission [2004] FCA 143, 208 ALR 73
applied
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 cited
McKinnon v
Secretary, Department of Treasury [2006] HCA 45, 228 CLR 423
applied
McPhee v S. Bennett Ltd (1934) 52 WN(NSW) 8
cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6; (1996) 185 CLR 259 applied
Minister for Immigration and Multicultural
Affairs v Jia [2001] HCA 17, 205 CLR 507 applied
Pochi v Minister for
Immigration and Ethnic Affairs (1979) 36 FLR 482 cited
Purvis v Dairy
Adjustment Authority (No 2) [2006] FCAFC 38; (2006) 150 FCR 48 cited
R v Australian
Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Company Pty
Limited [1953] HCA 22; (1953) 88 CLR 100 applied
Rana v Military Rehabilitation &
Compensation Commission [2005] FCA 6 cited
Re Aldred and Department of
Foreign Affairs and Trade (1990) 20 ALD 264 applied
Re Anderson and
Department of Special Minister of State (1986) 4 AAR 436 applied
Re
Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659
doubted
Re Fisse and Department of Treasury [2008] AATA 288, 101 ALD
424 cited
Re Haneef and Department of Immigration [2008] AATA 587
cited
Re Howard and Treasurer of the Commonwealth (1985) 3 AAR
169, 7 ALD 626 applied
Re Hudson and Department of the Premier, Economic
and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 cited
Re Porter and
Department of Community Services and Health (1988) 8 AAR 335 cited
Re
Reith and Attorney-General’s Department (1986) 11 ALD 345
cited
Re Saverio Barbaro and Minister for Immigration and Ethnic
Affairs (1980) 3 ALD 1 cited
Re Toomer and Department of Agriculture,
Fisheries and Forestry [2003] AATA 1301, 78 ALD 645
applied
Secretary to the Department of Infrastructure v Asher [2007]
VSCA 272 cited
Secretary to the Department of Treasury and Finance v
Dalla-Riva [2007] VSCA 11 distinguished
Secretary, Department of
Family and Community Services v Verney [2000] FCA 570, 60 ALD 737
cited
Secretary, Department of Social Security v Jordan (1998) 83 FCR
34 cited
The Victorian Public Service Board v Wright (1986) 160 CLR
145 cited
TNT Skypack International (Aus) Pty Ltd v Federal Commissioner
of Taxation [1988] FCA 119; (1988) 82 ALR 175 applied
Vetter v Lake Macquarie
City Council [2001] HCA 12; (2001) 202 CLR 439 cited
Waterford v Commonwealth of
Australia [1987] HCA 25; (1987) 163 CLR 54 cited
Whitlam v Australian Consolidated
Press Ltd (1985) 73 FLR 414 cited
Workcover Authority (NSW) v Law
Society of New South Wales [2006] NSWCA 84, 65 NSWLR 502 cited
Aronson, Dyer and Groves, Judicial Review of Administrative
Action (3rd ed, 2004)
Bagehot W, The English
Constitution (2nd ed, 1909)
Cossins A, Revisiting Open
Government: Recent Developments in Shifting the Boundaries of Government Secrecy
under Public Interest Immunity and
Freedom of Information Law (1995) 23 FL
Rev 226
Hodgson D, Recent Developments in the Law of Public Interest
Immunity: Cabinet Papers (1987) 17 Victoria U Wellington L Rev 153
BRENT FISSE v SECRETARY, DEPARTMENT OF THE
TREASURY and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 632 OF
2008
STONE, BUCHANAN AND FLICK JJ
11 DECEMBER
2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The application be dismissed with
costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY GD
WALKER DEPUTY PRESIDENT
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BETWEEN:
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BRENT FISSE
Applicant |
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AND:
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SECRETARY, DEPARTMENT OF THE TREASURY
First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
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JUDGES:
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STONE, BUCHANAN AND FLICK JJ
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DATE:
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11 DECEMBER 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
STONE J:
1 I have had the advantage of reading in draft the reasons for decision of Buchanan J and Flick J and gratefully rely on their exposition of the facts relevant to this application. I agree with their Honours that the application should be dismissed however, I would like to express briefly my own reasons for this decision.
2 In summary, my reasons are that the Tribunal’s decision relied on its findings of fact with which this Court is not entitled to interfere. The factual findings made by the Tribunal were open to it, irrespective of whether this Court would, in the Tribunal's position, have made the same findings. That being so, there is no error of law revealed in the Tribunal's reasons, and therefore the application must be dismissed.
The executive summary
3 Section 34(1)(a) of the Freedom of Information Act 1982 (Cth) exempts from disclosure a document that meets the following two criteria:
1. the document "has been submitted to the Cabinet for its consideration, or is proposed by a Minister to be so submitted"; and 2. the document "was brought into existence for the purpose of submission for consideration by the Cabinet".4 In paragraph [74] of its reasons, the Tribunal correctly identified these requirements. It noted that the "purpose" requirement applied to documents that have been submitted to Cabinet, as well as to those which a Minister proposed to submit to Cabinet. It was not in dispute that the executive summary was in fact submitted to Cabinet. Therefore, as the Tribunal observed, the issue was whether the document was "brought into existence for the purpose of submission for consideration by the Cabinet". Furthermore, the Tribunal understood that if the document "was created for a different purpose, the fact that it was subsequently decided to submit it to Cabinet does not bring it within the exemption".
5 In considering this issue, the Tribunal referred to the Treasurer's letter of 24 July 2003 to the Prime Minister. The Treasurer sought the Prime Minister’s agreement to the proposed arrangements for a working party "to examine criminal penalties for cartel behaviour". The Treasurer wrote:
I propose that the working party report to me by the end of the calendar year. I would then bring the issue to Cabinet early in the New Year, having obtained the support of the Minister for Justice and Customs for any recommendations to be put forward for Cabinet's endorsement.6 The Tribunal commented that, as well as seeking the Prime Minister's approval to establish a working party that would report to him, the Treasurer was also seeking approval for his proposal that the issue be brought to Cabinet. The Tribunal further noted that the Prime Minister, in his reply of 4 September 2003, said "I look forward to Cabinet considering the recommendations in early in 2004". In that context, the Tribunal relied on the evidence of Ms Croke, Assistant Secretary, head of the Cabinet Secretariat (who interpreted the correspondence in the same way as the Tribunal) to the effect that "in accordance with usual practice, the executive summary would be attached to, and form part of, the Cabinet submission". Ms Croke also stated that irrespective of whether the Treasurer supported all the recommendations of the working group, the executive summary would be attached to the Cabinet submissions made by the Treasurer. On the basis of all this evidence the Tribunal reasoned:
As Cabinet had itself sanctioned the establishment of a working group to consider implementation of the Dawson Committee recommendations, it would be most unlikely that Cabinet would not expect to see at least the executive summary when the issue was brought back to it in the manner contemplated.7 In view of this evidence the Tribunal concluded, at [94], that the executive summary satisfied the requirements for exemption laid down by s 34(1)(a); see [2] above. In so concluding the Tribunal clearly accepted that the respondent had discharged the onus of proof. The Tribunal also held that the document in the possession of the first respondent was a copy of the executive summary, and therefore satisfied the requirements of s 34(1)(c). This subsection extends the exemption under s 34(1)(a) to a copy of a document protected by s 34(1)(a).
The working party report
8 The Tribunal then considered whether the working party report (other than the parts already released) was exempt from release under s 36 of the Act. The Tribunal held that the evidence showed that the report was created "for the purpose of assisting the government to deliberate on the question of criminalising serious cartel conduct and indeed was actually called for by Cabinet for that purpose at the meeting of 15 April 2003". This is a clear statement of the Tribunal’s finding of fact. This Court has jurisdiction in relation to a decision of the Tribunal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) "on a question of law". Its jurisdiction to set aside the Tribunal’s findings of fact or to make its own findings of fact is severely limited; see s 44(7). It is entitled to set aside a factual finding if that finding is based on an error of law (for instance if there is no evidentiary basis for the Tribunal’s finding) however, it may not interfere with a finding that is simply a wrong finding of fact; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356; see also Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J.
9 While there may be real difficulty in distinguishing between legal and factual error (see generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action 3rd ed, 2004 at 187 et seq) and legitimate controversy about exactly how to distinguish a finding of fact that is made in error from one that is entirely without an evidentiary foundation or is based on irrelevant considerations, this is not something that need trouble the Court in this case. The evidence satisfied the Tribunal that the summary prepared for submission to Cabinet also supported the above conclusion in relation to the whole working party report. That evidence is fully described separately in the reasons of Buchanan J and Flick J. The issue of criminal penalties for cartel behaviour arose out of the Dawson Committee Report and its proposal that such penalties be introduced. The working party report was commissioned by the Treasurer in response to this and was to be submitted to him. The Treasurer’s letter of July 2003 addressed to the Prime Minister makes it quite clear, however, that its purpose was to assist the government in its deliberations on the question of such penalties.
10 As the Tribunal recognised, for the working party report to be exempt from disclosure such disclosure must also be "contrary to the public interest"; s 36(1)(b). The Tribunal expressed the view that deciding whether disclosure is contrary to the public interest requires a balancing approach. The Tribunal observed:
It was common ground here that three factors tended to favour disclosure of the report. They were that there is a general right of access to government information recognised by ss 3 and 11 of the Act, and upholding that right is in the public interest (subject to the statutory exceptions). Secondly, disclosure of government information helps individuals to participate meaningfully in the democratic process through discussions on matters of public policy and law. Thirdly, there is a public interest in promoting transparent and accountable decision-making in government. It was also agreed that proposals to criminalise serious cartel conduct, and the ability of interested parties to participate in free and open discussion of it, are matters of public interest.11 The Tribunal accepted that all of these considerations indicated that disclosure of the working party report would not be contrary to the public interest. Despite this, however, the Tribunal accepted that the importance of Cabinet confidentiality outweighed all of these factors. It accepted that releasing the report,
... would disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision. Disclosure would breach the convention of Cabinet confidentiality, which is pivotal to the proper functioning of the executive and the parliament of the Commonwealth.12 The Tribunal found support for the weight it attached to Cabinet confidentiality in the fact that s 34 of the Act exempts documents submitted to Cabinet (after having been brought into existence for that purpose) irrespective of the content of the documents. In the Tribunal’s view, this indicates that the Act itself "recognises a paramount public interest in preserving the confidentiality and secrecy of Cabinet submissions". Accordingly, the Tribunal found that disclosure of the working party report would be contrary to the public interest, and hence, the document was exempt from disclosure under s 36(1).
13 For these reasons I agree that the application appealing from the orders
made by the Tribunal should be dismissed with costs.
Associate:
Dated: 11
December 2008
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IN THE FEDERAL COURT OF AUSTRALIA
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|
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NEW SOUTH WALES DISTRICT REGISTRY
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NSD 632 OF 2008
|
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY GD
WALKER DEPUTY PRESIDENT
|
|
BETWEEN:
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BRENT FISSE
Applicant |
|
AND:
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SECRETARY, DEPARTMENT OF THE TREASURY
First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
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JUDGES:
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STONE, BUCHANAN AND FLICK JJ
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DATE:
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11 DECEMBER 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BUCHANAN J:
14 These proceedings challenge a decision of the Administrative Appeals Tribunal (‘the AAT’) refusing a request by the appellant for access to the report of an interdepartmental working party concerned with the possible introduction of criminal sanctions for serious cartel conduct. The request was made under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’). The report included an executive summary. For reasons which will become apparent it will be necessary to deal with the executive summary in its own right.
15 According to evidence accepted by the AAT, the working party report and its executive summary came into existence in the following circumstances:
• On 15 October 2001 the then Prime Minister, Mr Howard, announced that there would be an independent review of the competition provisions of the Trade Practices Act 1974 (Cth) and their administration. In May 2002, the Federal Treasurer, Mr Costello, appointed a committee, known as the Dawson Committee (the committee), to undertake the review. The committee reported to the government in January 2003 and its report was released in April 2003.
• The committee recommended that criminal sanctions be introduced for serious cartel conduct, subject to solutions being found to various problems it identified. Those problems included developing a satisfactory definition of ‘serious cartel behaviour’ and implementing an effective leniency or immunity policy in the Australian context.
• At a Cabinet meeting on 15 April 2003 Cabinet agreed that a working group would consider those issues.
• By an exchange of correspondence in July and September 2003 the Prime Minister and the Treasurer agreed that the working party would report to the Treasurer by the end of 2003 and that the Treasurer would bring ‘the issue’ to Cabinet early in the new year.
• In October 2003, the Treasurer publicly announced the terms of reference of an official working party to consider the issues identified by the committee. The working party comprised officials from the Treasury Department, the Attorney-General’s Department, the Australian Competition and Consumer Commission (‘the ACCC’) and the Commonwealth Director of Public Prosecutions.
• The working party submitted its report in April 2004. The report included an executive summary.
• The executive summary of the report was attached to a Cabinet submission that was presented to Cabinet for its consideration on 21 June 2004.
16 The request for access to the report of the working party arose from a wider request for documents on 13 March 2007 which was dealt with in part by the ACCC and in part by the Treasury. The request for a copy of the working party report was denied by Treasury on 12 April 2007, except as to three pages which revealed the working party’s terms of reference. Those terms of reference had been made public in October 2003.
17 The appellant sought an internal review on 9 May 2007. The decision of the reviewing officer was made on 7 June 2007. As a result of that review further parts of the working party report which were considered to contain ‘purely factual material’ were made available. However, a substantial part of the report remained withheld. Release of the document with some material deleted was authorised by s 22 of the FOI Act which permitted deletion of material which was either irrelevant to the FOI request or was in an exempt category. In the present case material was deleted because it was regarded as falling into an exempt category established by s 36 of the FOI Act.
18 Section 36 of the FOI Act, so far as immediately relevant, provides as follows:
36(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
19 The following is an extract from the decision of the reviewing officer:
Disclosure of the entire Working Party report Your letter requests an internal review of the refusal to release the entire Working Party report. Upon careful consideration of the contents of the Working Party report, I consider that the document contains material that if released, would disclose matters in the nature of, or relating to, opinions, advice and recommendations prepared for the purpose of the deliberative processes involved in the functions of the Government. The Working Party was established by the Government for the purpose of considering a workable definition of a proposed criminal cartel offence, and an appropriate method of combining a clear and certain leniency policy with the criminal regime. The document contains opinions, advice and recommendations relating to consideration of these issues. The Working Party was part of a whole of government analysis of the issues. Ultimately the issues that were debated by the Working Party were referred to Cabinet for consideration and may also be seen as a part of the deliberative processes of the Government in this light. In other words, disclosure of the report in its entirety would reveal advice prepared for the Government regarding a workable definition of cartel behaviour, the framing of a criminal offence, and the operation of a leniency policy for cartel conduct. I am also required to consider whether disclosure of the document would be contrary to the public interest. There is a public interest in understanding the reasons for Government decisions. There is also a public interest in ensuring the public has access to information in the possession of Government, subject to protecting essential public and private interests. However, in this case the disclosure of the document would undermine the important convention that the deliberations of Cabinet be kept confidential. This convention is fundamental to the proper functioning of the parliamentary process. I also strongly consider that disclosure of the report would have the effect of reducing the likelihood that such a written report would be produced by officials in the future, which would deprive the Government of the sort of deliberative analysis contained in the report. As discussed, ultimately the matters deliberated in this report were provided to Cabinet. It is the nature of the work of working parties whose participants are drawn from multiple agencies that it will be subject to review, constructive criticism and revision. The effect of this is that the working party report may not reflect the government’s final position. This disjuncture may in my view discourage working parties from generating ideas and options that may not ultimately be approved if the participants believe, through the release of this document, that their deliberations will be publicly accessible. Finally, the reasons for the Government’s decision to criminalise serious cartel conduct are clearly enunciated in the Treasurer’s press release dated 2 February 2005. Disclosure of the report would not add to the public’s understanding of the Government’s decision in a significant enough manner to justify the potential to breach cabinet confidentiality and to inhibit cooperative policy-making processes. Partial release of sections of the report Section 36(5) of the FOI Act states that the exemption does not apply to a document by reason only of purely factual material contained in the document. Having reviewed the decision, I consider that some sections of the report can be released on the ground that they contain purely factual material that do not reveal the deliberative processes of the Government in considering the appropriate development of the criminal cartel policy legislation and policy. In addition, some sections of the report are sourced from publicly available information and do not contain assessments by officials, draw conclusions, or make recommendations. Accordingly, I have released these sections of the report. Therefore, I consider that the pages of the report details in the revised Schedule (attached) should only be exempt in part. I therefore vary the decision of Mr French in relation to material in the report which I consider to be purely factual in nature but affirm Mr French’s decision in relation to the rest of the report, which I consider to be exempt under section 36. (Emphasis added)20 Three matters should be noted arising from the passages I have emphasised. First, there was no separate mention of the executive summary contained within the report. The focus of the reviewing office’s attention was upon the character and content of the report as a whole. Secondly, although it was of substantial importance in the reasons given by the reviewing officer that the matters dealt with in the report were the subject of Cabinet consideration, there was no suggestion of the kind which was, as will be seen, later made that the working party report, or any part of it, was brought into existence for the purpose of direct consideration by Cabinet. Rather, it ‘was part of a whole of Government analysis of the issues’. Those ‘issues’ were ‘ultimately’ referred to Cabinet and ‘ultimately’ the matters ‘deliberated’ in the report were brought before Cabinet. On that basis the reviewing officer concluded that Cabinet confidentiality would be breached if the whole report was released. Thirdly, any assumption that the working party report was necessarily predictive of the government’s final position was refuted. None of that reasoning bound the AAT but it is a useful background against which to assess subsequent events.
21 On 26 June 2007 the appellant applied to the AAT for review of the decision of the reviewing officer. Section 58(1) of the FOI Act empowered the AAT to review the decision and decide any matter that could have been decided by the reviewing officer. Section 64 of the FOI Act permitted the AAT to examine the working party report for itself as the reviewing officer had obviously done. However, in the present case, the AAT did not examine the working party report for itself. Instead, it relied upon the evidence of a witness (Ms Myra Croke, Assistant Secretary, Cabinet Secretariat, Department of the Prime Minister and Cabinet) who had read the report.
22 Before the AAT the respondent claimed that the executive summary in the report was an exempt document in its own right. It relied on s 34(1)(a) of the FOI Act. Section 34(1)(a) provides:
34(1) A document is an exempt document if it is:(Emphasis added)(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; ...
23 The whole report was not placed before Cabinet but the executive summary was, as earlier indicated, attached to a submission to a Cabinet meeting on 21 June 2004. The respondent relied upon the evidence from Ms Croke, which I shall discuss in greater detail, to argue firstly that the AAT should conclude that the executive summary had been ‘brought into existence for the purpose of submission for consideration by the Cabinet’ as required by s 34(1)(a). The second limb of the argument, as recorded by the AAT, then suggested that release of the whole report would breach Cabinet confidentiality because it would ‘disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision’, namely the executive summary.
24 The AAT accepted those arguments. It concluded that the executive summary of the report was exempt under s 34(1)(a) of the FOI Act. As part of that conclusion it accepted that the executive summary was brought into existence for the purpose of being placed before Cabinet for its consideration. The AAT also decided that disclosure of the whole working party report would be contrary to the public interest under s 36(1)(a) of the FOI Act because disclosure of it would breach Cabinet confidentiality and erode the protection given to the executive summary by s 34. That was a more limited finding than was made by the reviewing officer. The AAT’s finding about public interest proceeded from its earlier conclusion that the executive summary was an exempt document in its own right.
25 Ms Croke’s evidence gave some support to the general thrust of the respondent’s arguments as recorded by the AAT. However, she did not express any opinion (for opinions they were; she did not say that she had direct knowledge) that either the executive summary or the report as a whole were prepared to ‘support a recommendation’. Rather, she opined in a number of places that the report would ‘support a submission to the Cabinet’. The distinction is, to my mind, an important one. The reviewing officer, for example, was clearly of the view that the report should not be regarded as necessarily reflecting the government’s final position. Rather, reports of this kind provided ‘ideas and options that may not ultimately be approved’. Ms Croke also spoke of the Minister ‘recommending which matters should be progressed’ from amongst the options considered, and proposals formulated, by a working party.
26 Ms Croke’s evidence assumed that knowledge of the character and purpose of an executive summary would be possessed by the AAT. That assumption was justified in my view. I think the character and normal function of an executive summary in a written report can be taken to be a matter of common or ordinary knowledge (see eg. s 144 of the Evidence Act 1995 (Cth)). Ms Croke’s evidence did not suggest that the executive summary in the present case did not fulfil the usual function of providing a summary of at least the principal conclusions of the report. Had it been intended to suggest that the executive summary in the present case was not intended to fulfil such a function, whatever other use it may have been put to, that would, in my view, have needed to be clearly and specifically established. As I have said, Ms Croke’s evidence assumed knowledge and appreciation of the function of an executive summary in a report. Her evidence, properly understood, was directed to the contention that, in the present case, it was brought into existence for an additional purpose or use separate from its function as part of the report.
27 Knowledge of the function of an executive summary was also assumed in documents attached to Ms Croke’s affidavit. Two kinds of executive summary need to be distinguished – an executive summary prepared for a minister or by a department as part of a Cabinet submission and an executive summary of a report or discussion paper which might be attached to a Cabinet submission, as it was in the present case, to convey the substance of the report or discussion paper. The Cabinet Handbook, 5th edition March 2004, a copy of which Ms Croke attached to her affidavit, provided:
Preparation of Cabinet submissions and memoranda 4.5 Cabinet submissions and memoranda are strictly limited to 10 pages, including the cover sheet, recommendations/conclusions, body and any media release, with the co-ordination comments contained in an additional attachment. Other attachments may be added but must not be attached to the submission or memorandum (NB special arrangements apply to Budget submissions and memoranda). 4.6 The cover sheet, which contains the minister’s or department’s executive summary, should enable ministers to grasp the essential issues on which they are being asked to make a decision:(a) Purpose – the statement of purpose must state why Cabinet needs to consider the proposal and indicate any timing constrained (eg proposal needs to be considered prior to a Premiers’ Conference); and
Recommendations and conclusions should be as stand-alone as possible. 4.7 The Drafter’s Guide sets out in detail for departmental policy advisers and Cabinet liaison officers the process for the preparation of Cabinet submissions and memoranda.(b) Key Issues – this section must focus on the critical matters for decision, determination, political sensitivities or possible criticisms; it must not be just a summary of the text that follows.
28 The Drafter’s Guide, 2nd edition December 2006, which was also attached to Ms Croke’s affidavit, provided:
Page limits 33. There are strict requirements on page limits. Submissions and memoranda have internal page limits: the summary is limited to two pages, followed by recommendations/conclusions (which should focus on matters which require agreement), a media release (generally one page) and coordination comments (which are to be as short as possible). 34. The Attachment template for a submission or memorandum is limited to a maximum of 50 pages in total, including a limit of eight pages for the supporting argument. Other than attachments for new policy proposals, which are essential for proposals with financial implications, information may be attached only if it is essential to the key decisions sought. In most cases, an executive summary of relevant reports or discussion papers is more appropriate for the Cabinet’s consideration than the full text of lengthy documents.29 Those instructions confirm the commonly understood function of an executive summary. They also emphasise the need for rigour and discrimination at the time a Cabinet submission is prepared. The respondent’s contention that the executive summary in the present case was intended, in advance of or at the time of its creation, to be placed before Cabinet before the government had even received the report which it summarised deserved to be met with some reserve, as the appellant contended.
30 Section 61 of the FOI Act imposed the onus on the respondent to either justify the decision of the reviewing officer or persuade the AAT to give a decision adverse to the appellant. The reviewing officer relied only upon s 36 of the FOI Act. He did not rely on s 34. The respondent, therefore, bore the onus of establishing, for the first time, that the executive summary was an exempt document in its own right. It bore the onus of establishing that it was brought into existence for the particular purpose contemplated by s 34(1)(a). Correspondingly, the AAT was bound by s 61 of the FOI Act to evaluate the respondent’s contention upon a proper approach to the question of proof. That approach could accommodate the circumstance that the AAT is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’)) but it could not substitute, for the necessity of making out a case on the preponderance of probabilities, some lesser test (see Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73 at [65] per Weinberg J; see also in relation to an analogous provision the apparent approval by Foster J of statements by the AAT in Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 at 4433 and per Deane J in Federal Commissioner of Taxation v Dalco [1990] HCA 3; (1990) 168 CLR 614 at 626).
31 No suggestion was made on the appeal that s 34 required the identification of a sole, or even a dominant, purpose before it was engaged. The author of ‘Freedom of Information and Privacy in Australia’ (Paterson, M; Lexis Nexis Butterworths 2005) expresses the view, with respect to a provision similar to s 34 of the FOI Act (s 28(1)(b) of the Freedom of Information Act 1982 (Vic)), at [8.43] that ‘[t]he purpose which is referred to in these provisions does not have to be the sole purpose for which the document is created’. I will accept that is so. No submission to the contrary was made. Neither did the appellant in the present case, or apparently before the AAT, submit that purpose suggested by the respondent had to be causative in the sense that, but for its presence the executive summary would not have been brought into existence (cf the remarks in the Victorian Court of Appeal by Buchanan JA, with whom Ashley JA and Smith AJA agreed, in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 (‘Dalla-Riva’) at [13]). The AAT did not address the possibility that such a test governed its deliberations. It clearly did not apply such a test. Such a test would have been difficult to satisfy in the present case given the intrinsic character of an executive summary, the fact that it was not an independent document but was a part of the whole report, which had not been placed before Cabinet, and that no such causative purpose within the terms of s 34 could be claimed for the whole report. However, the appellant did not suggest, relying upon the remarks in Dalla-Riva, that any question of law arose in the present appeal about the test to be applied or that the AAT had, in that respect, applied the wrong test. It is therefore not necessary, in this case at least, to give further consideration to Dalla-Riva, where it is apparent also that the point was not fully argued.
32 The appellant argued principally, so far as s 34 was concerned, that the AAT distracted itself from examination of the real issues arising under s 34 by dealing with other matters, some relating to the application of s 36 and some dealing with an examination of public interest immunity, none of which were relevant to its task concerning the proper construction and application of s 34. In my view these arguments should not be accepted. A fair reading of the decision of the AAT shows that it understood, and addressed itself to, the particular requirements of s 34.
33 However, it is convenient at this point to identify two questions which have exercised my mind considerably about the AAT’s findings on the question of ‘purpose’. The first question is whether there was any evidence capable of supporting the conclusion of the AAT about the purpose for which the executive summary of the report was brought into existence and, as a related issue, whether there was any evidence capable of supporting a conclusion that a purpose or intention of placing the executive summary, as such, before the Cabinet for its consideration could reasonably be inferred to have been formulated at or before the creation of the executive summary rather than later.
34 As no argument was advanced that s 34 contemplates a sole purpose, a dominant purpose or a purpose which is causative in the sense suggested in Dalla-Riva, the fact that a purpose of the executive summary was to provide a convenient synthesis in the body of the report itself does not necessarily deny that it may also have been brought into existence with the purpose that it be considered by Cabinet in its own right. Nevertheless, the proposition that use of a common report writing technique (of providing a synthesis within the report of its principal features) was accompanied, in the present case, by the specific purpose upon which s 34(1)(a) of the FOI Act operated, was far from self-evident and had to be established to the requisite standard.
35 The second question arises from the last observation. As earlier indicated, the respondent bore the onus. The AAT was obliged to deal with the issues and the evidence accordingly. It will become clear from the discussion which follows that my own view of the evidence before the AAT is that it was insufficient to discharge that onus. The AAT did not, in terms, state its satisfaction that the onus had been discharged. Rather, it said (in a passage I will later set out in full) that ‘the evidence as it stands is sufficient to support the conclusion that the executive summary was brought into existence for the requisite purpose, and I so find’.
36 Arguably, this stated a lesser test than was required. A mere sufficiency of evidence to provide some support for the conclusion would not satisfy a burden of proof on the balance of probabilities. However, there are a number of reasons which outweigh a conclusion that the wrong test was used. First, and importantly, the AAT expressly referred to the onus borne by the respondent in its decision. Secondly, the appellant did not raise the argument. Thirdly, not too much should be made, with the benefit of hindsight, about the fact that the conclusions of the AAT could have been differently expressed or in terms that more clearly stated the AAT’s satisfaction on the balance of probabilities (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287). The second question may therefore be put aside.
37 Examination of the first question I identified must proceed by reference to limitations which arise from the character of an appeal under s 44 of the AAT Act. An appeal under s 44 of the AAT Act must be one ‘on a question of law’. That limitation has a significance which will require attention. Leaving aside for the moment, however, the necessity to formulate appropriate questions of law the underlying issues in the appeal concern the following broad topics:
• The purpose for which the executive summary was brought into existence. Was it for ‘the purpose of submission for consideration by the Cabinet ...’?
• If the executive summary was an exempt document, was it contrary to the public interest for the whole working party report to be disclosed?
• If the executive summary was not an exempt document was the working party report exempt under s 36 nevertheless?
38 The second and third of these issues concern the application of the statutory tests in s 36 to relatively uncontroversial considerations. They may be disposed of briefly.
39 Inevitably, disclosure of the working party report would reveal the substance, if not the precise text, of the executive summary. Any protection given by s 34 (assuming the executive summary was exempt in its own right) would thereby be negated. Whether the question is approached on the basis of preserving the confidentiality of a document found to have been created for the purpose identified by s 34 or is approached on the basis of facilitating the effective operation of the statutory scheme in the FOI Act it is, to my mind, clear that the test in s 36(1)(b) would be met in those circumstances, as the AAT found.
40 On the other hand, as the respondent accepted, whether or not there might be a broader foundation for a conclusion that the working party report was independently exempt under s 36, in the AAT decision that conclusion depended upon the preceding conclusion that the executive summary was an exempt document under s 34. If the preceding conclusion was set aside on the appeal the derivative conclusion could not be sustained but would require further consideration.
41 In the circumstances, the possible outcomes of the appeal turn on the question whether the decision that the executive summary was an exempt document should be set aside. If that part of the decision is not set aside the appeal must be dismissed. If it is set aside the matter should be returned to the AAT for further consideration. Such further consideration might clearly extend to whether the requirements of s 36 were met even if the executive summary was not an exempt document in its own right under s 34.
42 Before the first issue identified above (concerning the purpose of the executive summary) is examined some further attention is required to the character of the present appeal. The necessity to identify a question of law in an appeal under s 44 of the AAT Act has been frequently stressed (see e.g. Colby Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165 FCR 133 (‘Colby’) citing Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178). It is not enough that the Court might take a different view of the conclusions to be drawn from facts before the AAT or the weight to be given to the opinions of witnesses before the AAT. Nor could the fact that opinions upon which the AAT might rely were not strictly admissible as evidence necessarily disqualify such opinions from attention by the AAT because it is not bound by the rules of evidence (see s 33(1)(c) of the AAT Act and Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-3). Nevertheless, the position is not completely at large. There must have been some evidence before the AAT which was capable, as a matter of law, of sustaining its conclusions.
43 It is well established that ‘whether facts fully found fall within the provisions of a statutory enactment’ properly construed is a question of law (see e.g. Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 (‘Hope’) at 7). Similarly, ‘whether facts as found answer a statutory description’ will often be a question of law (see Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 (‘Vetter’) at [24]). On the other hand, a conclusion about which minds might reasonably differ does not raise a question of law unless ‘on the facts found only one conclusion is open’ (Hope at 8, Vetter at [27]).
44 A Full Court of this Court in Collector of Customs, Tasmania v Flinders Island Community Association [1985] FCA 232; (1985) 7 FCR 205 at 214 applied Hope (at 7) saying:
Where facts are fully found or undisputed the question whether they fall within the terms of a statutory provision, properly construed, is a question of law.45 Similarly, in Australian National Railways Commission v Collector of Customs (SA) [1985] FCA 312; (1985) 8 FCR 264 Sheppard and Burchett JJ said (at 277):
In reaching our conclusion, we have considered whether the matters relied upon by counsel for the applicant raise a question of law for decision. Unless they do, the tribunal’s decision must stand. We are of opinion that a question of law is involved because the question is whether facts which have been fully found (though as to broad categories rather than specific instances) fall within the provisions of the relevant enactment; see Hope v Bathurst City Council [1980] HCA 16; (1980) 29 ALR 577 at 581[1980] HCA 16; ; 144 CLR 1, per Mason J at p 7.46 The question whether there is any evidence of a particular fact is also a question of law. That proposition has been accepted as applying to issues arising in appeals under s 44 of the AAT Act (see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 at [29] and Colby at [16]). The proposition, so far as it concerns judicial review more generally was articulated by Mason CJ (with whom Brennan agreed, Deane J agreed generally and Toohey and Gaudron JJ agreed on this point) in Australian Broadcasting Commission v Bond [1990] HCA 33; (1990) 170 CLR 321 (‘Bond’) at 355. His Honour said (at 355-356):
The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd; Australian Gas Light Co. v. Valuer-General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v. Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden. But it is said that [t]here is no error of law simply in making a wrong findings of fact": Waterford v. The Commonwealth, per Brennan J. Similarly, Menzies J observed in Reg. v. District Court; Ex parte White:Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. (Footnotes omitted)"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."
47 The judgments in McPhee v S. Bennett Ltd (1934) 52 WN(NSW) 8 (‘McPhee’) and Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 (‘AGL’), to which Mason CJ referred, were both judgments of Jordan CJ.
48 In McPhee, Jordan CJ said (at 9):
The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v. Lipton Ltd and Mersey Docks and Harbour Board v. West Derby Assessment Committee. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. (Citations omitted)49 In AGL, Jordan CJ said (at 137-138):
In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: ... (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: ... (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences ... (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: ... Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: ... If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law: ... (Citations omitted.)50 The consequence of the legislative arrangement whereby an appeal from the AAT to this Court is only available ‘on a question of law’ is that the assessment of factual matters is left to the AAT. In a different context but by way of a sufficient analogy (i.e. satisfaction on the part of a tribunal) the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Limited [1953] HCA 22; (1953) 88 CLR 100 drew attention (at 119-120) to:
... the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.51 The evidence upon which the AAT’s conclusion, that the executive summary was an exempt document because it had been prepared for the purpose of submission for consideration by the Cabinet, depended was that provided by Ms Croke. In part her evidence relied upon examination of identified correspondence, in part it relied upon her experience in her position (which she had held since September 2003) and earlier positions and in part it reflected her opinions. It is important to maintain a distinction between matters about which Ms Croke gave evidence from her own knowledge and experience and those which depended upon the formation and declaration of an opinion, particularly an opinion about any intention or purpose to be imputed to others.
52 Before setting out the relevant parts of her evidence it will be useful to identify some of the documentary material which formed the backdrop against which her evidence was given and her opinions stated. As earlier indicated, the Dawson Committee Report was released in April 2003 and, as appears from the correspondence to which reference will shortly be made, was the subject of attention at a Cabinet meeting on 15 April 2003. On 24 July 2003 the Treasurer, Mr Costello, wrote to the Prime Minister, Mr Howard, in terms which included the following:
The Dawson Review suggested that these issues be examined by a working party, comprising officials from Treasury, the Attorney-General’s Department, the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission. The draft terms of reference have been prepared following consultations between officials from these agencies. Cabinet Minute of 15 April 2003 notes that the arrangements would be settled by an exchange of letters. I propose that the working party report to me by the end of the calendar year. I would then bring the issue to Cabinet early in the New Year, having obtained the support of the Minister for Justice and Customs for any recommendations to be put forward for Cabinet’s endorsement. (Emphasis added)53 The terms of reference provided that:
... the working party is to consider and report on whether an appropriately defined criminal offence or offences can be introduced into Commonwealth law proscribing some or all of the activities that comprise cartel behaviour. (Emphasis added)54 The working party was directed to specifically consider a number of particular aspects and factors. The terms of reference say nothing about the particular use which would be made of its report (which was to be made to the Treasurer) or about the form its report should take. It was not directed that it should provide an executive summary for consideration by Cabinet or otherwise.
55 The Prime Minister replied to the Treasurer on 4 September 2003 saying:
Your proposal is consistent with Recommendation 10.1 of the Review of the Competition Provisions of the Trade Practices Act 1974, and the government response. Accordingly, I agree to the establishment of a working group, as you have outlined, to further consider the proposal to introduce criminal penalties for serious cartel behaviour and to the proposed draft terms of reference. While I note that the working group will comprise officials from Treasury, the Attorney-General’s Department, the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission, I would encourage the working group to consult my department, especially on the development of significant proposals. I understand that you propose that the working group reports to you by the end of the year, and I look forward to Cabinet considering the recommendations early in 2004. (Emphasis added)56 In a press release issued on 3 October 2003 the Treasurer publicly announced the terms of reference and stated:
On 16 April 2003, the Government announced its in principle acceptance of the recommendation of the Dawson Review, that criminal sanctions be introduced, subject to further consideration of these issues. The working party will comprise officials from the Treasury, the Attorney-General’s Department, the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions. The working party is expected to report to the Treasurer by the end of 2003. (Emphasis added)57 From these documents some matters were clear and were not in dispute. One was that the working party was to report to the Treasurer. Another was that nothing in the terms of reference informed the working party that it was to prepare its report for Cabinet, or prepare any executive summary of the report for Cabinet. However, there can be no doubt that the issues to be addressed by the working party were ones which were intended for Cabinet consideration.
58 Less clear, perhaps, having regard to the Prime Minister’s reply was whether the recommendations referred to in the Treasurer’s letter and the Prime Minister’s response which were to be ‘put forward for Cabinet’s endorsement’ were to be recommendations by the working party or by the Treasurer with the support of the Minister for Justice and Customs. If it were a matter for me to decide I would prefer the view, as a matter of construction, that the recommendations being referred to were those which would be formulated by the Treasurer after consideration of the working party report. That view accords also with the approach earlier taken by the reviewing officer to the character of reports of this kind. The AAT came to the opposite view. The first paragraph I have set out below from Ms Croke’s evidence suggests, I think, that she read the correspondence as I did. It was the Treasurer who was to make the necessary submission and recommendations to Cabinet. In due course that is what occurred, although the executive summary was provided to Cabinet as an attachment to the Treasurer’s submission.
59 The course which was followed was in accordance with the requirements of the Cabinet Handbook and the Drafter’s Guide. The Cabinet Handbook said:
Cabinet considers policy proposals that are brought before it by a sponsoring minister, usually the portfolio minister who sits in the Cabinet ...60 The Drafter’s Guide said:
Submissions are taken to the Cabinet by ministers seeking a decision on a proposed course of action. They contain the minister’s recommendations, couched in terms of agreeing to the preferred approach and, where absolutely necessary, noting critical contextual information. (Emphasis added)61 Ms Croke confirmed, in her oral evidence, that the practice directed by the Cabinet Handbook was required to be adhered to by all Commonwealth departments and agencies at the relevant time. That provides a further reason to doubt that the Prime Minister contemplated that recommendations would be made to Cabinet, directly or indirectly, by the working party or that recommendations it might make to the Treasurer would necessarily be put before Cabinet for approval.
62 Ms Croke’s evidence about these matters was, firstly, as follows:
19. I read the exchange between the Prime Minister and the Treasurer as indicating an intention that the Report be brought into existence for the purpose of forming the basis of a submission by the Treasurer for consideration by the Cabinet. In accordance with usual practice (see paragraph 25 below), the executive summary to the Report would be attached to and form part of the Cabinet submission. The Treasurer’s statement that he would bring the issue to the Cabinet after the Working Party reported to him indicated that he intended that the Report support the submission to the Cabinet. It is also indicated by the Prime Minister’s response that he looked forward to the Cabinet considering the recommendations consequent upon the Report.(Emphasis added for later discussion)
63 Ms Croke’s appreciation of the position accords with my own reading of the correspondence. The working party was to report to the Treasurer. It was expected that the Treasurer would formulate a submission for consideration by Cabinet after receipt of the working party report. The recommendation to be made would be ‘consequent upon’ the report – i.e. would be formulated after the report was received and taken into account. The same appreciation, that it was a matter for the Treasurer to formulate appropriate recommendations after receipt and study of the working party report, pervades the discussion in Ms Croke’s evidence which followed. However, there are other matters which now require specific emphasis.
64 Ms Croke went on:
20. Tribunal document T9 is an email sent on 1 June 2007 by Angelo Anagnostis, PM&C’s FOI Contact Officer to Bronwen Urban of the Department of the Treasury. It was created in my absence on two months’ leave. I have read document T9 (the email).
21. In the email Mr Anagnostis says that, in his opinion, there may not be a strong case that the executive summary of the Report is exempt from release under s 34(1)(c) of the FOI Act.
22. The email outlines the exchange of correspondence between the Prime Minister and the Treasurer, as it appears above in paragraphs 17 and 18.
23. I can see from the email that Mr Anagnostis was not satisfied that the exchange between the Prime Minister and the Treasurer sufficiently indicated an intention that the Report was "brought into existence for the purpose of submission for consideration by the Cabinet". Mr Anagnostis stated that one possible interpretation is that the Report was to be brought into existence for the purpose of submission for consideration by the Treasurer in order to enable the Treasurer to make recommendations to the Cabinet. Mr Anagnostis noted, however, that a claim could be made if the Treasury could satisfy itself that the Report was brought into existence for the purpose of submission for consideration by the Cabinet. As I have stated above (paragraph 20), the email was created in my absence on leave.
24. There is another, and in my view preferable, interpretation of the correspondence which I consider better reflects the way in which matters are in fact dealt with by the Cabinet. I base my interpretation of the correspondence on my experience as the head of the Cabinet Secretariat in PM&C since September 2003. In the course of that experience, I have observed that Ministers often use indirect language to indicate that a document is intended to be submitted to the Cabinet or may not even express that they have such an intention. In my opinion, the exchange between the Prime Minister and the Treasurer does not indicate an intention that the Report be created merely for the purpose of consideration by the Treasurer. Rather, as outlined at paragraph 19 above, the exchange indicated an intention that the Report would canvass a range of options to support a submission by the Treasurer to the Cabinet.
25. In my experience it is often the case that a minister will seek a detailed examination of complex matters by a working group to assist the minister in canvassing all the options and refining proposals to take forward to the Cabinet. In such cases, a submission may assess the proposals considered by the working group with the Minister then recommending which matters should be progressed. It is generally the practice in such cases that the executive summary of the report is attached to the Cabinet submission regardless of whether or not the proposing minister supports all the proposals of the working group. The full report is available to Cabinet ministers but usually not attached to the Cabinet submission.
26. The issue with which the Report was concerned was initially the subject of Cabinet discussion at its meeting of 15 April 2003. At that meeting the Cabinet agreed that a working group would consider the issue with the detailed arrangements for the working group to be agreed by an exchange of letters, which is the correspondence at MC3. It is clear that the issue in question was to return for Cabinet’s further consideration and this occurred at the meeting of 21 June 2004. I consider that this sequence of events supports my view that the executive summary was brought into existence for the Cabinet’s consideration.
27. Only the Executive Summary of the Report was actually submitted to the Cabinet. The remainder of the Report, however, has a close connection to the Cabinet process and while not actually submitted, it provides the detailed information that formed the basis for the Executive Summary.
65 I have emphasised (in paragraphs 19, 25, 26 and 27) the only four sentences in which some mention was made of the executive summary in a way which might conceivably support a conclusion about the purpose for which it was created. The reference in paragraph 19 depended entirely upon the statement in paragraph 25. The statement in paragraph 25 was a statement of fact but it disclosed no more than a general practice in some circumstances. That statement of general practice was made about circumstances where a working party might examine complex matters for the assistance of a minister making recommendations to Cabinet. The minister’s subsequent submission often attached the executive summary even if he did not support all the proposals. The statement in paragraph 27 made clear that only the executive summary of the report was actually placed before Cabinet. The statements in paragraphs 19, 25 and 27 rose no higher than recording a general practice in some cases. In my view, they were not capable of supporting a conclusion that, in the present case, the executive summary was actually brought into existence for the purpose of consideration by Cabinet. That would be mere surmise, based on the matters stated by Ms Croke.
66 The statement in paragraph 26 was an opinion based upon a sequence of events which I have already outlined. The opinion in paragraph 26 may be contrasted with that offered in the last sentence in paragraph 24 that (referring to statements in paragraph 19) the working party report (i.e. the whole report) would be the document that would form the basis of, or support, a submission by the Treasurer to the Cabinet. Such a circumstance was insufficient to attract an exemption for the whole of the report under s 34. The additional circumstance, so far as it concerned the executive summary, that it was actually placed before the Cabinet was also insufficient, on its own, to endow the executive summary with exempt status. A further characteristic was required. That characteristic (that the executive summary was brought into existence for the purpose of consideration by the Cabinet) was supplied only by Ms Croke’s statement in paragraph 26, based upon the sequence of events set out in the correspondence, namely, that a working group would consider ‘the issue’ and that ‘the issue in question’ would return for Cabinet’s further consideration. In my view, the opinion in paragraph 26, likewise, was not capable of supporting the requisite conclusion because it could take on no greater probative nature than the identified facts on which it was based.
67 The only evidence about the purpose for which the executive summary was brought into existence was the opinion offered by Ms Croke. There was no specific evidence at all about why an executive summary was prepared in this case, much less that it was prepared for the particular purpose of being placed before Cabinet as opposed to serving, in the usual way, as a convenient distillation of the conclusions reached in the main body of the report. No other evidence about the intention of Cabinet, the Treasurer, the Prime Minister or the members of the working party was before the AAT.
68 The critical passages in the AAT decision dealing with this issue are the following:
74. For a document to be exempt under s 34(1)(a), two requirements must be satisfied:• The document must have been submitted to Cabinet, or proposed by a minister to be so submitted; and
... 77. The time at which the document was brought into existence is the time at which the purpose must be ascertained: Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264 at 265-266. Consequently, if it was originally created for a different purpose, the fact that it was subsequently decided to submit it to Cabinet does not bring it within the exemption: Re Hudson and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at 135. ... 81. As regards the purpose for which the summary was created, while the Treasurer’s letter of 24 July 2003 does seek the prime minister’s approval to establish a working party that would report to the Treasurer himself, part of the arrangements for which approval is sought is the proposal that the issue be brought to Cabinet, together with any necessary expressions of support from the justice minister or [sic] any recommendations put forward for Cabinet’s endorsement. 82. In his reply of 4 September 2003 (MC3), the prime minister notes that the working group is to report to the Treasurer by the end of 2003 and proceeds to say "I look forward to Cabinet considering the recommendations early in 2004". The word "recommendations" appears to refer to the working party’s report on the topics listed in its terms of reference, or at least those of them which the Treasurer, in consultation with the justice minister, has decided to support. Ms Croke’s evidence interprets the correspondence in the same way and adds that in accordance with usual practice, the executive summary would be attached to, and form part of, the Cabinet submission. ... 87. Also material, as Ms Croke pointed out, is the fact that the establishment of the working group was itself discussed at a Cabinet meeting on 15 April 2003. That adds cogency to her interpretation that the issue was clearly intended to return for Cabinet’s further consideration, as in fact happened on 21 June 2004. She considers that the sequence of events itself supports the view that the executive summary was brought into existence for Cabinet’s consideration. 88. As Cabinet had itself sanctioned the establishment of a working group to consider implementation of the Dawson Committee recommendations, it would be most unlikely that Cabinet would not expect to see at least the executive summary when the issue was brought back to it in the manner contemplated. ... 93. As the applicant pointed out, there is no evidence before the tribunal from any of the members of the working party, and the failure to call such evidence has not been explained. The Federal Court has recently held, however, that the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 does not apply to this tribunal’s proceedings, which are inquisitorial in nature: Green v Minister for Immigration and Citizenship [2008] FCA 125 at para 41. Further, the evidence as it stands is sufficient to support the conclusion that the executive summary was brought into being for the requisite purpose, and I so find. (Emphasis added)• The documents must have been brought into existence for the purpose of submission for consideration by the Cabinet.
69 In my view there is no doubt that the AAT correctly appreciated the nature of the issue for its consideration and decision (paragraphs 74 and 77). When, however, it turned to whether the statutory test was satisfied it appeared to rely on four principal matters. First, that ‘the issue’ would be brought back to Cabinet (paragraphs 81, 87, 88). Secondly, that the ‘recommendations’ referred to by the Prime Minister related ‘to the working party’s report on the topics listed in its terms of reference, etc’ (paragraph 82). It suggested that Ms Croke’s evidence interpreted the correspondence in the same way. Thirdly, that Cabinet would expect to see at least the executive summary when the issue was brought back to it (paragraph 88). Fourthly, it is apparent that the AAT’s conclusions depended, in part at least, upon general acceptance of Ms Croke’s opinions and in particular her opinion on the very matter the AAT was required to decide.
70 The first and third of those matters could not be decisive, or even particularly influential in their own right. A conclusion that ‘the issue’ was to be brought back to Cabinet says nothing, in its own right, about the purpose for which the executive summary was brought into existence. An expectation that Cabinet might have a particular document available to it, likewise, does not prove the purpose for which the document was created, particularly when it is, properly regarded, part of a larger document. In my view the conclusion reached by the AAT depended ultimately on two critical matters: the opinion stated by Ms Croke at the end of paragraph 26 of her affidavit and its own apparent conclusion, based on the correspondence, that the Prime Minister contemplated that ‘recommendations’ would be made by the working party for consideration by Cabinet.
71 In my view Ms Croke’s opinion about the matter which the AAT had to decide should not be regarded as evidence providing support for that conclusion, as I have already said. She very properly identified the matters upon which the opinion was based but they were inadequate to sustain it. She gave no evidence that she was privy to, or had even indirect knowledge of any requisite intent. Her opinion was based, as she said, on a preference for one reading of the correspondence over another, earlier, interpretation of it. The other evidence she gave of general practice was equally consistent with either interpretation on the facts of this case. Even allowing that the AAT was not bound by the rules of evidence (s 33(1)(c) of the AAT Act) I do not think Ms Croke’s opinion should be regarded as any evidence at all on the question.
72 In Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457 Middleton J said (at [14]):
In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. Whilst sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one...His Honour’s observations, with respect, state a fundamental and well established distinction which is not always observed. (See also Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358, quoting Bradshaw v McEwans Pty Ltd (HCA (1951) unreported).
73 In my view there was no evidence given by Ms Croke directly supporting the conclusion expressed in paragraph 93 of the AAT decision about the purpose for which the executive summary was created and no evidence was given by her which might reasonably support an inference to that effect. However, that is not the end of the matter.
74 The attribution by the AAT of some form of intent to the Prime Minister raises different issues. Paragraph 82 of the AAT decision does seem to contain a finding of fact that it was in the contemplation of the Prime Minister, when he agreed to the Treasurer’s proposals, that Cabinet would consider recommendations made by the working party in its report to the Treasurer. If the recommendations to which the Prime Minister (and the Treasurer) had referred were those to be made by the working party then there is some support for a conclusion that a document, later created, conveying the working party’s ‘recommendations’ might have been created for the purpose of consideration by Cabinet. One difficulty is that the description given by the AAT in paragraph 82 does not really accord with that possibility. The reference to ‘the working party’s report on the topics listed in its terms of reference, or at least those of them which the Treasurer, in consultation with the Justice Minister, has decided to support’ is not apt to isolate the executive summary as a separate document. Despite the AAT’s observations I can see no support either in Ms Croke’s own evidence for a construction of the word ‘recommendations’ in the Prime Minister’s letter to that effect. On the contrary, I read her evidence as being in substance to a different effect.
75 The appellant argued that any purpose to be served by the working party making recommendations was distinct from identification of the purpose for which the executive summary was created. I think the submission has a good deal of force, particularly as in the relevant paragraph (paragraph 82) the AAT’s observations were expressed by reference to topics to be dealt with in the working party report, rather than specifically in an executive summary. Nevertheless, the question does not turn on the preferable construction of the Prime Minister’s letter but upon whether it is capable of bearing the meaning attributed to it by the AAT.
76 The correspondence between the Treasurer and the Prime Minister was plainly relevant. The AAT was entitled to come to a view about whether it suggested the purpose for which the respondent contended. Although, in my view, the interpretation placed on the correspondence is too strained to be accepted as correct, and although it did not, contrary to the AAT’s statement, receive support from Ms Croke, that interpretation may not be dismissed as one incapable of being reached. Although, in my view, the AAT’s conclusion about its meaning was erroneous I could not say that it was an inference so unreasonable that it could not be drawn or that the correspondence necessitated the opposite conclusion. As a result, slender though in my view the support was, there was some support for the AAT’s conclusion that the executive summary was prepared for the purpose of consideration by Cabinet. My exploration of the issue has done no more, ultimately, than identify a question about the sufficiency, rather than the absence, of evidence. On the authorities that is not a question of law. The AAT’s conclusion must be regarded as raising only a factual question. It follows that the conclusion reached by the AAT is not reviewable in the present proceedings.
77 The appeal faces a further difficulty. In a number of recent cases in this Court the jurisdictional limitation upon appeals under s 44 has been emphasised (see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; Comcare v Etheridge [2006] FCAFC 27 (‘Etheridge’); Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38; (2006) 150 FCR 48; Brown v Repatriation Commission [2006] FCA 914 (‘Brown’) and Colby. Identification of a question of law is not only a fundamental prerequisite but, as many authorities confirm, a question of law so identified is the subject matter of the appeal.
78 The questions of law which are said to be raised on the appeal (as stated in a further amended notice of appeal) are as follows:
THE QUESTIONS OF LAW raised on the appeal are:(a) In relation to the Executive Summary, did the Tribunal misconstrue s 34(1) of the FOI Act, namely, the requirement that the document was brought into existence for the purpose of submission for consideration by Cabinet, by taking into account the purpose or effect of the document at a time after the document was brought into existence and by taking into account whether disclosure of the document could disclose a minister’s position and by so deciding in circumstances where on the facts as established it was not open to it so to decide.
(b) In relation to the Working Party Report, did the Tribunal misconstrue the statutory expression ‘the disclosure of which [document] ... would be contrary to the public interest’ in s 36(1)(b) of the FOI Act by so deciding in circumstances where on the facts as established it was not open to it so to decide.
79 I need, for present purposes, only give attention to the first question formulated. The question of law purportedly expressed in (a) depends, in all of its alternative modes of expression, upon the possibility that the AAT misconstrued s 34(1) of the FOI Act. Although, as I have indicated, there was a question about whether the AAT misapplied s 34 to the facts available there is no reason to suppose that it misconstrued s 34(1) or misunderstood its requirements (see paragraphs 74 and 77 of the AAT decision earlier set out).
80 The contention that the AAT took ‘into account the purpose or effect of the document at a time after the document was brought into existence’ could be understood as a contention intended to deny that the evidence was capable of showing that the statutory condition in s 34(1)(a) was met. The related contention that ‘on the facts established it was not open to it to so decide’ could be understood, so far as it applied to the question of purpose, in the same way. Such contentions, even reading them in that way, only raise a question of law if the principles earlier addressed are satisfied. If the contentions are read more narrowly they do not raise a question of law at all. On either view no question of law is ultimately presented for decision in this case.
81 In my view the appeal should be dismissed. It would be appropriate to dismiss it with costs.
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I certify that the preceding sixty-eight (68) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Buchanan.
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Associate:
Dated: 11 December 2008
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IN THE FEDERAL COURT OF AUSTRALIA
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NSW DISTRICT REGISTRY
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NSD 632 OF 2008
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY GD
WALKER DEPUTY PRESIDENT
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BETWEEN:
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BRENT FISSE
Applicant |
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AND:
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SECRETARY, DEPARTMENT OF THE TREASURY
First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
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JUDGES:
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STONE, BUCHANAN AND FLICK JJ
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11 DECEMBER 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
FLICK J:
82 In October 2001 the then Prime Minister announced that there would be an independent review of the competition provisions of the Trade Practices Act 1974 (Cth). In May 2002 the then Government established a committee to review the operation and effectiveness of the competition provisions of the 1974 Act. That Committee, which became known as the Dawson Committee, reported in January 2003 and the Government accepted in principle the proposal to introduce criminal penalties for serious cartel behaviour. The report of the Dawson Committee was released in April 2003.
83 In July 2003 the then Treasurer, the Hon Peter Costello, wrote to his Prime Minister seeking agreement to proposed arrangements for a working party to examine criminal penalties for cartel behaviour. The Treasurer proposed that the working party was to report back to him by the end of the year and that the issue could then be brought before Cabinet early in the new year.
84 The then Prime Minister agreed to that proposal and in October 2003 the then Treasurer announced the establishment of the Working Party. As established, the members of that Working Party comprised officials from the Department of Treasury, the Attorney-General’s Department, the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions.
85 The Working Party provided its report in April 2004.
86 In February 2005, the Treasurer announced that the then Government would seek amendments to the 1974 Act and subsequently announced that the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill would be introduced into the Parliament in 2007.
87 The origins of the present appeal occurred on 13 March 2007. On that date a request for access to documents was sought pursuant to the Freedom of Information Act 1982 (Cth). That request was made by Lexpert Publications Pty Ltd and its managing director, Mr Fisse. Mr Fisse is also a solicitor who has practised extensively in trade practices and competition law.
88 The request for access was framed in the following terms:
On behalf of Lexpert Publications Pty Ltd and W.B. Fisse, we seek access to: 1 All submissions prepared by the Australian Competition and Consumer Commission (ACCC) and provided to either the Dawson Committee or the Department of the Treasury that fall within the description of a "later submission" as referred to on page 155 of the Dawson Committee’s Report dated January 2003 titled "Review of the Competition Provisions of the Trade Practices Act" (Dawson Committee’s Report). A copy of page 155 of the Dawson Committee’s Report is attached to this letter. 2 All documents comprising or constituting reports prepared by the working party referred to in the press release from the Treasurer dated 2 February 2005 (working party) and provided to either the Dawson Committee or the Department of Treasury. A copy of the press release is attached to this letter. We enclose a cheque for $30 payable to the Department of Treasury in accordance with statutory requirements. Please advise should you require further information.89 Access to some documents was refused pursuant to s 36 of the Freedom of Information Act. Internal review was thereafter sought. Mr Fisse applied to the Administrative Appeals Tribunal and that Tribunal published its reasons for decision on 10 April 2008: Re Fisse and Department of Treasury [2008] AATA 288, 101 ALD 424. In issue before the Tribunal were exemptions claimed pursuant to s 34(1)(a) and (c) and s 36 of the 1982 Act.
90 The documents for which exemption was claimed and which remain in issue may be described as:
1. the Executive Summary of the report of the Working Party -- for which exemption is claimed pursuant to s 34(1)(a) and (c); and
2. the whole Working Party Report -- for which exemption is claimed pursuant to s 36(1).
91 The onus of making out either of these two claims rested upon the first respondent: Freedom of Information Act, s 61. That section provides as follows:
Onus (1) Subject to subsection (2), 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. (2) In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.The onus is one to be discharged on the balance of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143 at [65], 208 ALR 73 at 86 per Weinberg J.
92 An appeal to this Court from a decision of the Administrative Appeals Tribunal is confined to "a question of law": Administrative Appeals Tribunal Act 1975 (Cth), s 44(1). "The existence of a question of law", it has long been recognised, "is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it": Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. A mixed question of fact and law is not a question of law within the meaning of s 44(1): Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18], 76 ALD 321 at 325 per Branson and Stone JJ (Appl’d: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [32], [2008] FCAFC 128; 169 FCR 241 at 254 per Weinberg, Bennett and Edmonds JJ). Section 44(1), accordingly, limits "the capacity of the Court on an appeal ... to review factual findings of the Tribunal": Comcare v Etheridge [2006] FCAFC 27 at [14], [2006] FCAFC 27; 149 FCR 522 at 527 per Branson J (Spender and Nicholson JJ agreeing).
93 Although expressed as an "appeal", the application now before the Court is not an appeal in the strict sense but rather an application within the original jurisdiction of the Court: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J, at 422 per Smithers J; TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338 at 339 per Bowen CJ.
94 By reason of the fact that the Tribunal whose decision is under review was constituted by a Deputy President, s 44(3) of the Administrative Appeals Tribunal Act requires this Court on appeal to be constituted as a Full Court.
CABINET AS PART OF THE EXECUTIVE GOVERNMENT
95 At the forefront of the applicant’s submissions was a proposition that the Tribunal had erred by informing itself as to the correct construction or application of s 34(1)(a) more by reference to those principles relevant to a determination of a claim for public interest immunity privilege -- or Crown privilege -- rather than by reference to the terms of s 34(1) itself.
96 Although the terms of s 34(1) must be construed and applied, it is not considered that there is such a clear dichotomy between those principles now set forth in s 34 and those common law principles protecting the confidentiality of Cabinet. Section 34 cannot be so easily divorced from its historical origins.
97 The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has been long recognised. But little is known about its workings. Writing in 1872, Walter Bagehot said of Cabinet:
The most curious point about the cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By the present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. No minister who respected the fundamental usages of political practice would attempt to read such a note. The committee which unites the law-making power to the law-executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state--is a committee wholly secret. No description of it, at once graphic and authentic, has ever been given. It is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows: The English Constitution (2nd ed, 1909) at 14.As noted by the Tribunal in the present proceeding (in part), the role of Cabinet and the importance attached to the confidentiality of its deliberations was further summarised in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 by Blackburn CJ as follows (at 421–2):
With no pretensions to qualification as a political theorist, I believe I can propound that aspect of the principle in words which are sufficient for the present purpose. Cabinet is a group of persons who have in common certain political aims. It has to make decisions which must command support in Parliament and, it is hoped, will command substantial support in the electorate. The common political aims are necessarily broad; in their particular applications they may be the subject of disagreement among members of Cabinet. Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the Government. Discussion and persuasion may abolish the disagreement, or they may merely reduce it, or leave it unaltered. If any disagreement remains there must nevertheless be a decision, but it will be one which some members like less than others. Both practical politics, and good Government, require that those who like it less must still publicly support it. If such support is too great a strain on a Minister's conscience, he can resign. So the price of the acceptance of Cabinet office is the assumption of the liability to support Cabinet decision. The burden of that liability is shared by all, and supported by the convention that every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret. The maintenance of the rule of the secrecy of individual contributions to discussion, and votes, in Cabinet, provides a guarantee of the most favourable conditions possible for the utmost frankness in the expression of views. To reveal the view, or vote, of a member of Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of joint responsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for the joint decision, each member is entitled to the assurance that he will be held responsible only for that, and only as one member of the whole Cabinet which made it; and that he will not be held responsible for any different view which he may have expressed. To all this, of course, must be added the obvious and basic fact that it is part of the machinery of the government of the country; it is not the rules or customs of a private society which concern us. Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation.Reference may also be made to the observations of Black CJ, Tamberlin and Sundberg JJ in Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453 at [24]–[32][2000] FCA 453; , 98 FCR 31 at 38–41.
98 The importance of Cabinet as an institution of the Executive Government was obviously not questioned by the applicant. His position simply was that the common law principles relevant to the protection of the workings of Cabinet were of no relevance -- or of limited relevance -- to the construction or application of s 34 of the 1982 Act to such facts as were found by the Tribunal. The common law principles relevant to a determination of privilege in respect to Cabinet papers have been extensively canvassed (eg, Hodgson D, Recent Developments in the Law of Public Interest Immunity: Cabinet Papers (1987) 17 Victoria U Wellington L Rev 153) and need not presently be re-agitated.
99 When determining a claim for exemption made pursuant to s 34 of the 1982 Act, it may readily be accepted that it is the terms of that section which must be construed and applied. But the relevance of the common law principles protecting the secrecy of the workings of Cabinet cannot be divorced entirely from s 34. That section, it has been said, "provides the mechanism whereby that secrecy may be preserved": Re Anderson and Department of Special Minister of State (1986) 4 AAR 436. Deputy President Hall there observed:
[20] Section 34 of the FOI Act recognises the political reality of Cabinet as an institution of the Executive Government of the Commonwealth (cf s 35). It is a long-established principle of responsible government that the deliberations of Cabinet are secret (see Sir Ivor Jennings Cabinet Government 3rd ed, p 267). As Blackburn J said in his decision in Whitlam v Australian Consolidated Press Ltd (unreported, No SC 1899/76, 4 March 1985):Section 34 provides the mechanism whereby that secrecy may be preserved. The protection accorded to documents submitted to Cabinet for its considerations and to official results of Cabinet is not, however, absolute. A document by which a decision of Cabinet was officially published may, of course, be disclosed: see s 34(1)(d). In addition, where a document of a kind referred to in s 34(1)(a), (b) or (c) contains purely factual material, that document is not, to that extent, protected from disclosure, unless the conditions specified in s 34(1a)(a) and (b) are satisfied."Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization."
It must necessarily be recognised, however, that the Freedom of Information Act represents a shift in emphasis away from tendencies of secrecy in government to open government. When reviewing public interest immunity claims and the objectives of Freedom of Information legislation, it has thus been observed that "[o]pen government involves a shift from the assumption that government information is secret unless there are public interest grounds for disclosure (PII) to the assumption that all information held by government is accessible upon request unless there are public interest grounds for withholding it (FOI)": Cossins A, Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law (1995) 23 FL Rev 226 at 256.
100 The established convention as to Cabinet confidentiality and those common law principles relevant to determining a claim for public interest immunity in respect to Cabinet deliberations, it is considered, may inform the legislative objective sought to be achieved -- particularly in relation to s 34 of the 1982 Act. The legislative objective in passing s 34 was self-evidently to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet. The Second Reading Speech of 18 August 1981 thus records in part:
... Only in some cases are the exempt documents defined by reference to the nature of the document itself, such as Cabinet and Executive Council documents. It is of the essence of Cabinet government that the deliberations of Cabinet and of the Executive Council should be protected from mandatory disclosure. Of course, the tenor of many Cabinet decisions, as well as various Executive Council decisions are published. The documents which make these decisions public are not, of course, exempt documents under the Bill.101 It nevertheless remains the task of the Tribunal, and of this Court on appeal, to apply the terms of the 1982 Act to the facts as found. That Act attempts to incorporate (not only in s 34 but also in sections such as ss 37 and 42) claims for withholding information which would have been withheld at common law; it is also an Act which more fundamentally confers a right of access, subject only to those exemptions defined by those statutory provisions in Part IV. Given the legislative objective of ensuring openness in government, it is of fundamental importance that the terms of the 1982 Act providing for exemptions are construed according to their terms.
102 It may also readily be accepted that an assessment as to the "public interest" required under s 36(1)(b) of the 1982 Act involves -- at least in part -- an assessment as to the reasons for and the basis upon which the common law has long recognised the need for confidentiality as to Cabinet decisions, submission and deliberations.
103 The applicant contends that the Tribunal has trespassed beyond the words of ss 34 and 36; the first respondent denies that contention and maintains that the reasons provided by the Tribunal -- properly construed -- expose nothing other than an application of the statutory language to the facts as found.
104 It is considered that the contentions of the applicant are to be rejected.
SECTION 34: GENERAL PRINCIPLES
105 It is s 34 of the 1982 Act which provides for exemptions in respect to what the side note identifies as "Cabinet documents".
106 For present purposes, only s 34(1) need be considered. That sub-section provides as follows:
Cabinet documents (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.107 Section 34 of the Commonwealth Act, it should be noted, is both relevantly narrower in its ambit of operation than its Victorian counterpart and also broader in scope. Section 28(1) and (2) of the Freedom of Information Act 1982 (Vic) provides as follows:
Cabinet documents (1) A document is an exempt document if it is -- (a) the official record of any deliberation or decision of the Cabinet; (b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet; (ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet; (c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); 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. (2) Subsection (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence.Section 28(1), it will be noted, is broader in scope than s 34; s 28(1)(ba) extends to a "document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet"; s 28(2) has no Commonwealth counterpart.
108 There has been a division of opinion as to the qualification effected by the phrase "being a document that was brought into existence for the purpose of submission for consideration by the Cabinet". One approach has been that that phrase only qualifies those documents "proposed by a Minister to be so submitted": Re Porter and Department of Community Services and Health (1988) 8 AAR 335. Another approach has been that the phrase qualifies both those documents and also documents that have in fact been submitted to Cabinet: Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [63], [2003] AATA 1301; 78 ALD 645 at 670.
109 The Tribunal in the present proceeding applied the decision in Re Toomer and there was no submission before this Court urging any different construction of s 34(1)(a).
110 So construed, to fall within the exemption provided for by s 34(1)(a) of the Commonwealth Act, it was thus common ground between the parties that:
(i) merely establishing that the Executive Summary was in fact submitted to Cabinet was not sufficient to attract the exemption provided for in s 34(1)(a);
and that it was also necessary to establish that:
(ii) the purpose for which the Executive Summary was prepared was for its submission for consideration by Cabinet;
and that:
(iii) the purpose for which it was prepared was to be established as at the time the document was brought into existence.
Relevantly, in Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264 the then President of the Tribunal, His Honour Justice Hartigan, observed (at 265–6):
... I accept Mr Tracey's and Mr Bayne's submissions that the Tribunal must look at the document at the time it was created rather than at the time of the hearing. It seems to me that the words of s 34(1)(a) make it clear that the time the document "was brought into existence" is the relevant time at which to look at the document. However, the document must be one of which it can be said that it is proposed to be submitted to Cabinet. I consider that the subsection does not grant an exemption to documents that are not submitted to the Cabinet despite the intention to do so at the time of their creation. It seems to me that the subsection only grants exemption to documents already submitted or proposed to be submitted if they were created with that intention. The subsection clearly grants the exemption to documents that are proposed to be put before the Cabinet not to documents that were proposed to be put before the Cabinet but never were. Thus a document may lose its claim for exemption when it is proposed no longer to submit the document to Cabinet. ...111 When considering the terms of s 28(1)(b) of the Victorian legislation, Vincent JA has concluded that the words of that provision should be given "their ordinary meanings and ... were intended to confine exemption from disclosure to the particular documents which it was contemplated would be placed before Cabinet for their consideration. Preliminary or preparatory material, not constituting a draft or copy, would accordingly not be encompassed": Secretary to the Department of Infrastructure v Asher [2007] VSCA 272 at [40] (Buchanan and Redlich JJA agreeing). In the context of the Queensland legislation, it has also been concluded that the "time of the creation of the document is the time at which the purpose for its creation is to be ascertained": Re Hudson and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at 134. It was there subsequently observed that the "fact that it was subsequently decided to annex to a Cabinet submission, a document that was brought into existence for a purpose other than submission to Cabinet for Cabinet consideration, will not bring the document within" the exemption.
112 In the present appeal it was accepted that the "purpose" to be established referred to the "dominant purpose or one of a number of significantly contributing purposes" or "causative in the sense that, but for its presence" the document would not have been prepared: cf Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 at [13] and [24].
TRIBUNAL’S FINDINGS AS TO "PURPOSE": SECTION 34(1)(A)
113 It is accepted in the present appeal that only the "Executive Summary" was submitted to Cabinet. No question arose before the Tribunal, and no question arises on appeal, as to whether that "Executive Summary" contained purely factual material within the meaning of s 34(1A).
114 The conclusion of the Tribunal was that the Executive Summary had been brought into existence for the "purpose" of it being submitted to Cabinet within the meaning of s 34(1)(a) and, accordingly, was exempt from production. This conclusion was founded upon both:
(i) the terms of correspondence as between the former Treasurer and Prime Minister; and
(ii) the evidence of an Assistant Secretary, Cabinet Secretariat, Department of Prime Minister and Cabinet (Ms Croke), her evidence comprising an affidavit together with her oral evidence.
115 The starting point for both the Tribunal and Ms Croke was the letter from the then Treasurer to his Prime Minister dated 24 July 2003. Relevantly that letter stated:
Dear Prime Minister I am writing to seek your agreement to proposed arrangements for a working party to examine criminal penalties for cartel behaviour, and the attached draft terms of reference for that working party. ... I propose that the working party report to me by the end of the calendar year. I would then bring the issue to Cabinet early in the New Year, having obtained the support of the Minister for Justice and Customs for any recommendations to be put forward for the Cabinet’s endorsement.The response of the Prime Minister on 4 September 2003 relevantly stated:
My dear Treasurer Thank you for your letter of 24 July 2003 regarding the establishment of a working group to examine criminal penalties for cartel behaviour, and the draft terms of reference for that working group. ... I understand that you propose that the working group reports to you by the end of the year, and I look forward to Cabinet considering the recommendations early in 2004. ...116 Read according to the terms employed, it is not considered that that correspondence amounts to anything more than the Treasurer seeking the endorsement of his Prime Minister to the establishment of a working party and advice as to a proposed timetable. What was envisaged was the establishment of a working party to report to the Treasurer so that he could bring "the issue to Cabinet early in the New Year". It was envisaged that Cabinet would consider the "recommendations" to be made. Had it been sufficient to satisfy the requirements of s 28(1)(ba) of the Victorian Act, such evidence may have been sufficient; but, s 28(1)(ba) has no counterpart in the Commonwealth Act.
117 It was presumably in recognition of the prospect that such correspondence may be so read that the first respondent before the Tribunal sought to provide further assistance as to the background against which such an exchange of correspondence should be read. That was the assistance provided by Ms Croke. Her affidavit referred to the exchange of correspondence and continued:
19. I read the exchange between the Prime Minister and the Treasurer as indicating an intention that the Report be brought into existence for the purpose of forming the basis of a submission by the Treasurer for consideration by the Cabinet. In accordance with usual practice (see paragraph 25 below), the executive summary to the Report would be attached to and form part of the Cabinet submission. The Treasurer’s statement that he would bring the issue to the Cabinet after the Working Party reported to him indicates that he intended that the Report support the submission to the Cabinet. It is also indicated by the Prime Minister’s response that he looked forward to the Cabinet considering the recommendations consequent upon the Report. ... 25. In my experience it is often the case that a minister will seek a detailed examination of complex matters by a working group to assist the minister in canvassing all the options and refining proposals to take forward to the Cabinet. In such cases, a submission may assess the proposals considered by the working group with the Minister then recommending which matters should be progressed. It is generally the practice in such cases that the executive summary of the report is attached to the Cabinet submission regardless of whether or not the proposing minister supports all the proposals of the working group. The full report is available to Cabinet ministers but usually not attached to the Cabinet submission. ... 27. Only the executive summary of the report was actually submitted to Cabinet. The remainder of the report has, however, a close connection with the Cabinet process and, while not actually submitted, it provides the detailed information that formed the basis for the executive summaryMs Croke thus sought to put forward both her interpretation of the correspondence and her experience as to the manner in which Ministers prepared matters for the consideration of Cabinet.
118 Before the Tribunal there was a limited -- but focussed -- cross-examination of Ms Croke. Her evidence was that the version of the Executive Summary as provided to Cabinet was marked "Cabinet in Confidence". But that classification was affixed at the time the Executive Summary was put before Cabinet. Her oral evidence was as follows:
But certainly if a document was prepared for consideration by Cabinet, it was the responsibility of the person preparing the document to affix the marking Cabinet in Confidence to it?---Yes. And in your review of the working paper, did you find the marking Cabinet in Confidence on that document?---Not on the version of the full report, but on the version that was submitted to Cabinet, of the executive summary, yes. And when you refer to the full report, you are referring to the entire document including the executive summary in its original form?---Yes. And then when the executive summary itself was put before Cabinet it was, on your understanding, detached from the full report and that marking Cabinet in Confidence was affixed to it at that time?---Yes, it formed part of the submission, so it definitely had that marking on it.The version of the Working Party Report as released did not bear the words "Cabinet in Confidence" and also relevantly had the word "Protected" struck through and had a page at the commencement of the Report reserving copyright to the Commonwealth of Australia. Ms Croke was not involved in the process of striking out the word "Protected" but suggested that that would have occurred at the time the document (with deletions) was released. But beyond that, and not surprisingly, she could not "say what was in the mind of the author". Her evidence in this respect was equally within a narrow compass and was as follows:
May I show you a version of the working paper as released to the applicant in these proceedings. It is exhibit WBF3 to Professor Fisse’s affidavit. Now, if you just look at the first page, or look at the top or bottom of any page, you will see the word Protected struck through. Are you aware of the circumstances in which that redaction occurred?---I believe it would have occurred when the report had - was prepared for release to the applicant to remove any - sorry, this is the redacted version, so any of the areas of concern which the Department of the Treasury is withholding would have been removed, and, therefore, the protected elements would have been removed because, what is remaining here at this point would be purely factual information and it would be common practice to remove a classification at that point when it no longer contains material that’s considered to be protected. Yes. Fair enough. So in giving that answer, you’re relying upon your understanding of common practice within Commonwealth agencies?---Yes. Yes. And you are personally not aware of the circumstances in which the word Protected may have been affixed to the document or redacted from the document?---I personally wasn’t involved in that process because it was something within the Department of Treasury, but the way I’ve explained it is the way it would commonly happen through a FOI process or any other process where release is sought. Yes. Can you turn to the second page of the document, please? You see it’s an introductory page that notes that the work is copyright. ... Yes. Now, you see the contents of that page. It would be unusual, would it not, for an imprint page of that nature to be affixed to a document prepared for submission to Cabinet?---There are occasionally documents submitted to Cabinet which are later released with the Government’s agreement. I can’t say what was in the mind of the author at the time they were affixing in this particular case. And the point is that you really aren’t able to say what was in the mind of the author of the document at all, are you?---I guess, my role or my knowledge is based on what correspondence was around, what was intended to come back to Cabinet. Whether that was fully in the mind of the author at the time they were preparing this, I’m not sure. Someone may have even got overzealous and put this in because they’ve done a previous report of this nature; I really don’t know. And, indeed, an imprint page of this nature is indicative, is it not, generally, of a document that is prepared for public release?---That would normally be the purpose of putting it there.In re-examination, Ms Croke was taken back to the significance to be attached to the classification "Cabinet in Confidence" and the following exchange occurred:
Ms Croke, you were asked some questions about the presence or absence, on the report as a whole, of the words, Cabinet in Confidence, and I understood your evidence to be that they did not appear on the report as a whole, the copy that you saw?---Yes. That’s correct. But the copy of the executive summary that was part of the Cabinet submission bore those words?---Yes, it did. Do you attribute any significance to the presence or absence of those words so far as the opinion that you’ve expressed in your affidavit is concerned?---No, I don’t. I have seen many cases where documents prepared in departments are incorrectly classified, so I don’t think you could rely on the absence or presence of the words on the report itself.119 It was upon the basis of this evidence that the Tribunal concluded that the copy of the Executive Summary was exempt pursuant to s 34(1)(a) and further concluded that the copy of the Executive Summary which was in the possession of the first respondent was a "copy of ... a document referred to in paragraph (a)" within the meaning of s 34(1)(c). Relevantly the Tribunal concluded:
[89] The executive summary was part of the subject matter of the Cabinet meeting’s discussions on that topic and cannot be said merely to have been placed before Cabinet for its information. The treasurer was not bringing the "issue" of criminal penalties before Cabinet in a general or abstract way, but was putting forward concrete proposals developed following a working group or "workshopping" approach that Cabinet had itself discussed and approved. Further, even though the treasurer may not have supported all the working group’s recommendations as set out in the executive summary, the course of events and the language of the various communications make it highly probable that the treasurer’s expressed position on the criminal penalties issue would have been structured in accordance with the recommendations in the executive summary. To that extent, it could disclose the minister’s position in the manner discussed in CFMEU. ... [93] As the applicant pointed out, there is no evidence before the tribunal from any of the members of the working party, and the failure to call such evidence has not been explained. The Federal Court has recently held, however, that the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308[1959] HCA 8; ; [1959] ALR 367 at 371–2 does not apply to this tribunal’s proceedings, which are inquisitorial in nature: Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125 at [41]. Further, the evidence as it stands is sufficient to support the conclusion that the executive summary was brought into being for the requisite purpose, and I so find.120 In reaching this conclusion it is not considered that the Tribunal has committed an appellable error.
121 Some reservation was initially expressed as to whether the Tribunal’s reasons exposed some error in the construction of or application of s 34(1)(a) to the facts before it. This source of reservation emerged from the Tribunal’s references to those decisions relevant to a determination of a public interest immunity claim in respect to cabinet documents and deliberations; the reservation being as to whether the Tribunal had thereby not applied the terms of s 34 of the 1982 Act but rather had applied or reasoned from principles more relevant to a determination of a common law claim to privilege. A further source of reservation emerged from the Tribunal’s repeated references to factual matters of no immediate relevance to a determination as to the "purpose" for which the Executive Summary was brought into existence, such as repeated references to whether the "issue" of imposing criminal sanctions was to be brought back before Cabinet.
122 The applicant’s misgivings with respect to the reasons of the Tribunal were not without substance. It is, however, accepted that the reasons of the Tribunal are not to be read "with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. Brennan CJ, Toohey, McHugh and Gummow JJ there made the following observations as to the proper role of a reviewing court when considering a statement of reasons provided by the Administrative Appeals Tribunal (at 271–2):
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [1993] FCA 456; [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.123 Notwithstanding a "looseness in ... language", it is considered that the Tribunal did properly construe and apply the terms of s 34(1)(a) to the facts before it. A proper reading of the Tribunal’s reasons, it is considered, reveals the Tribunal acknowledging that the "issue" as to imposing criminal sanctions was "clearly intended to return for Cabinet’s further consideration" and an acknowledgment that the "executive summary was part of the subject matter of the Cabinet meeting’s discussions". The Tribunal, in that context, placed reliance upon (and incorporated) the evidence of Ms Croke that "the sequence of events itself supports the view that the executive summary was brought into existence for Cabinet’s consideration". References to the reservation of copyright on the Working Party Report, the Tribunal further reasoned, was "not inconsistent with a purpose of submitting the report, or the executive summary, to Cabinet for its consideration".
124 The reasoning of the Tribunal, it is considered, addresses and applies the terms of s 34(1)(a).
125 A separate source of reservation focussed upon whether there was evidence before the Tribunal upon which it could properly make its finding as to "purpose". In the absence of explanation, it was perhaps surprising that not one member of the Working Party was sought to be called to expose the reason why the Executive Summary was prepared. Presumably it was a member of the Working Party who prepared that Summary. If it was the former Treasurer who gave instructions for the preparation of the Summary, perhaps for the very purpose of the Summary being provided to Cabinet, it was perhaps less surprising that he did not provide such evidence. No inference should too readily be drawn from the fact that he did not give evidence: cf Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [143] per Kirby J, at [284] per Callinan J[2001] HCA 17; , 205 CLR 507.
126 It ultimately remained a matter, however, for the first respondent to discharge the onus imposed by s 61 of the Freedom of Information Act to make out its claims for exemption. How he chose to do so was a matter for him to decide.
127 For whatever reason, the first respondent chose the course of relying primarily upon the text of the correspondence as between the then Treasurer and Prime Minister and the experience of Ms Croke. The position in which Ms Croke found herself was, on one view, unenviable. Her affidavit made it abundantly clear that the basis upon which she was expressing views was her reading of the materials and files and her experience. But, inevitably, she had no direct knowledge of the purpose for which the Executive Summary was prepared.
128 The forensic course pursued by the first respondent before the Tribunal was not a course without its obvious difficulties. Having decided upon that course, however, it was perhaps further surprising that Ms Croke did not apparently attempt to contact any member of the Working Party or that member who prepared the Summary. Reliance upon what Ms Croke described as her "experience" and the "practice" as to the manner in which Cabinet submissions were prepared inevitably involved the Tribunal in a less than satisfactory process whereby inferences had to be drawn from a questionable factual foundation.
129 It cannot be said, however, that such evidence as was relied upon by the first respondent before the Tribunal was not sufficient to deny to the Tribunal the ability to make its finding as to "purpose". In making its findings, the Tribunal was not bound by the rules of evidence: Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c); it was thus open to it to admit evidence which would not have been admissible in accordance with the law of evidence: cf Casey v Repatriation Commission (1995) 60 FCR 510. "The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance": (1995) 60 FCR 510 at 514. Appl’d: Secretary, Department of Social Security v Jordan (1998) 83 FCR 34 at 43–4 per Hill J; Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [37]–[39][2000] FCA 570; , 60 ALD 737 at 746–7 per Cooper J; Rana v Military Rehabilitation & Compensation Commission [2005] FCA 6 at [62] per Finn J.
130 In the present appeal, it may have been open to the Tribunal to have rejected the evidence of Ms Croke, especially that part of her evidence as to the very matter upon which the Tribunal was called to decide: Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1. Davies J there observed at 5:
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.Clearly in the present proceeding there was "better evidence" as to the purpose for which the Executive Summary was prepared. But, and for whatever reason, the present applicant chose not to object to the tender of the affidavit evidence of Ms Croke and advanced no submission that the tender of her affidavit deprived the applicant of the opportunity to properly "test the evidence tendered against him". In such circumstances, the course which the Tribunal pursued in the present proceeding of placing reliance upon the affidavit and oral evidence of Ms Croke was a course open to it.
131 Separate from its consideration of the Executive Summary and s 34 of the 1982 Act, the Tribunal went on to further conclude that the entirety of the Working Party Report was exempt by reason of s 36.
132 To put the Report in context, it was a report provided to the then Treasurer in April 2004. The Report was not a Draft or Preliminary Report. It was not a report provided to Cabinet nor a report which was prepared for the purpose of being submitted to Cabinet.
133 It was a Report, however, which played -- or had the potential to play -- a central role in the deliberative processes being put in motion by the Treasurer in July 2003. His letter to the Prime Minister also relevantly stated:
The Government’s response to the Review of the Competition Provisions of the Trade Practices Act 1974 (Dawson Review) accepts, in principle, the proposal to introduce criminal penalties for serious cartel behaviour, subject to the further consideration of the matter by Government. In particular, solutions must be found to problems identified by the Dawson Review, including the development of a satisfactory definition of cartel behaviour and a workable method of combining a clear and certain leniency policy with a criminal regime. The Dawson Review suggested that these issues be examined by a working party, comprising officials from Treasury, the Attorney-General’s Department, the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission. The draft terms of reference have been prepared following consultations between officials from these agencies. Cabinet Minute ... of 15 April 2003 notes that the arrangements would be settled by an exchange of letters.134 Of present relevance is s 36(1) which provides as follows:
Internal working documents (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act: (a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and (b) would be contrary to the public interest.The Freedom of Information Act contains no definition of the "public interest". Relevant to the right of access conferred by s 11 of the Act, and to the exemptions set forth in the Act -- including both ss 34 and 36 -- is s 3, which sets forth in part the following object of the Act, namely:
Object (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: ... (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; ...Express reference should be made to the phrase "necessary for the protection of essential public interests". In Re Haneef and Department of Immigration [2008] AATA 587 at [38], 103 ALD 336 at 344 Tamberlin J, sitting in the Administrative Appeals Tribunal together with a Deputy President of that Tribunal, observed that it was "apparent from the use of the expressions ‘essential’ and ‘necessary’ in s 3(1)(b) that the exemptions are intended to be of a limited nature and that unwarranted withholding of disclosure can result in significant detriment to the public interest". See also: McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [5], [2006] HCA 45; 228 CLR 423 at 428; The Victorian Public Service Board v Wright (1986) 160 CLR 145 at 153–4 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.
135 The dispute before the Tribunal in the present proceeding sensibly focussed, not upon whether disclosure of the Report in its entirety would involve the disclosure of "deliberative processes" within the meaning of s 36(1)(a), but rather whether disclosure would be "contrary to the public interest" within the meaning of s 36(1)(b).
136 In Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 78 FLR 236 at 246, Beaumont J observed of s 36(1)(b):
In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 52). ...A conclusion as to whether or not disclosure would be "contrary to the public interest" is a conclusion which may be founded upon both questions of fact and opinion: McKinnon v Secretary, Department of Treasury [2006] HCA 45, 228 CLR 423. Gleeson CJ and Kirby J, albeit in dissent in the result, observed:
[5] A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).Determining where the public interest lies is a question of fact and degree: Workcover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84 at [146], 65 NSWLR 502 at 533 per McColl JA (Handley and Hodgson JJA agreeing).
137 A determination of the "public interest" is also to be resolved by a consideration of "the whole of the circumstances": Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169, 7 ALD 626. Davies J there observed at 177–8:
... it is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that: (a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed; (b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest; (c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest; (d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; (e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.138 The principal factor that led the Tribunal in the present proceeding to its conclusion that the document was exempt by reason of s 36 was what was said to be its relevance to Cabinet deliberations. The Tribunal thus concluded in part:
[112] The main public interest factor advanced by the respondent in support of the proposition that disclosure would be contrary to the public interest is that release of the report would disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision. Disclosure would breach the convention of Cabinet confidentiality, which is pivotal to the proper functioning of the executive and the parliament of the Commonwealth. Even though the full report does not fall within the terms of s 34(1), the public interest would not be served by interfering with the convention of confidentiality... ... [114] The working party report was prepared at the request of Cabinet for the purpose of assisting Cabinet to define its policy position. The report is a deliberative document that canvasses the options open to Cabinet. ... [117] For the reasons given above, I conclude that the working party report is inextricably involved with the Cabinet submission. The fact that no deliberations of Cabinet would be directly disclosed and that the report itself did not go to Cabinet (although it was available to Cabinet and was summarised for Cabinet’s benefit) is immaterial. It is a deliberative document. It is also immaterial that the report is self-contained, as that may well be true of many highly confidential Cabinet documents. The applicant seeks only the final version of the working party report, not drafts or other internal records of the working party. Nevertheless, the final report itself remains a deliberative document that provided the foundation for the Cabinet submission and in particular for the executive summary. [118] The fact that later publication may have been contemplated is also of no moment. The timing of the disclosure of a document can be all-important, such as in relation to the federal budget and accompanying budget papers.The Tribunal’s ultimate conclusion was expressed as follows:
[125] In my view the public interest in the preservation of Cabinet confidentiality, a fundamental principle in the operation of the Australian political institution of the collective, indirectly elected executive outweighs the other public interest considerations in this case. I find that disclosure of the working party report would be contrary to the public interest.139 This conclusion of the Tribunal followed what it identified as the "three factors" that favoured disclosure of the Report, namely a "general right of access to government information"; the fact that "disclosure of government information helps individuals to participate meaningfully in the democratic process"; and the "public interest in promoting transparent and accountable decision-making in government".
140 After having set forth these "factors" the Tribunal went on to identify the "main public interest factor advanced by the respondent in support of the proposition that disclosure would be contrary to the public interest", namely, "that release of the report would disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision".
141 Had the applicant succeeded in respect to his challenge to the "purpose" for which the Executive Summary was prepared, his challenge to the conclusion in respect to s 36(1)(b) would have been a far easier task. The rejection of that challenge, however, left the applicant in the position that the Tribunal identified the "factors" both in favour of release and the "main public interest factor" militating against release, and reached a conclusion adverse to the applicant. That conclusion, it is considered, was a conclusion open to the Tribunal and not susceptible to appeal.
142 Two arguments advanced on behalf of the applicant, however, should specifically be mentioned.
143 First, in balancing the "factors" relevant to an assessment of the "public interest", the Tribunal referred to the decision of Deputy President Hall in Re Reith and Attorney-General’s Department (1986) 11 ALD 345 and specifically the observation of the Deputy President that (at 352):
...the FOI Act itself recognises a paramount public interest in preserving the confidentiality and secrecy of Cabinet submissions.The argument was essentially that the Freedom of Information Act was to be construed and applied according to its terms and not by reference to common law claims in respect to confidentiality of Cabinet submissions and, certainly, not by reference to any proposition that the 1982 Act recognised any "paramount public interest" of the kind identified by Deputy President Hall.
144 In using the expression, "paramount public interest", it is not considered that the Deputy President in Re Reith was intending to convey a conclusion that the public interest in preserving the confidentiality and secrecy of Cabinet submissions was a public interest that was "paramount" to, and thereby necessarily prevailed over, any other aspect of the public interest. In using that expression, it is considered that the Deputy President was simply intending to convey that the importance in preserving Cabinet confidentiality was an important consideration and one to be weighed together with all other relevant aspects of the public interest. The relative importance of competing considerations was a matter for the Tribunal to weigh and take into account, with no one particular consideration necessarily prevailing over others.
145 The difficulty confronting the applicant in the present appeal was the simple fact that the Tribunal’s reasons -- read not with an "eye keenly attuned to the perception of error" -- exposed nothing other than an assessment of all "factors" relevant to a determination of the "public interest", including the public interest in preserving the confidentiality of Cabinet submissions and deliberations. In making that assessment of the competing "factors", the Tribunal clearly gave considerable weight to "the convention of Cabinet confidentiality". So much is apparent from its reliance upon the decision of Deputy President Hall in Re Reith and its subsequent observation that the "change of government since the report was commissioned and prepared does not alter the preponderant weight of the public interest in confidentiality". The Tribunal had also elsewhere referred to the 1982 Act as recognising "a paramount public interest in preserving the confidentiality and secrecy of Cabinet submissions".
146 But the weight to be given to those competing factors relevant to an assessment of the "public interest" remains a matter for the Tribunal -- not this Court. The reasons of the Tribunal do not disclose that it gave such weight to one particular "factor" to the exclusion of others. It expressly referred to -- and took into account -- the "three factors" in favour of disclosure, but concluded that those factors did not prevail.
147 Second, it was further contended that the Tribunal had taken an irrelevant consideration into account, namely the convention that new Ministers in an incoming government do not have access to and do not look at documents recording the deliberations of Ministers in the previous government.
148 The relevant conclusion of the Tribunal was as follows:
[122] Similarly, the change of government since the report was commissioned and prepared does not alter the preponderant weight of the public interest in confidentiality. Indeed, it may reinforce it. The convention described by Ms Croke that ministers in a new government do not seek access to documents recording the deliberations of ministers in previous governments is widely known. What may not be so widely known, however, is the thoroughness of the procedures put in place by the Cabinet handbook for implementing that convention. It provides in para 7.35 that before each House of Representatives election, departments are to ensure that all Cabinet documents held by them are accounted for and stored so that access can be controlled appropriately. If there is a change of government, Cabinet documents of the previous government must be destroyed.149 The applicant’s contention was primarily that any reference to the convention was misplaced -- the Working Party Report simply did not record the deliberations of Cabinet and, for that reason, reference to the convention by the Tribunal was an "irrelevant consideration". The convention, it was urged by the applicant, "was not engaged".
150 It was in the context of this further submission that the applicant placed reliance upon Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 where Deputy President Todd observed:
[20] It is very difficult to see how such a convention can be given any weight under the FOI Act. It has to be said that the traditions of government in the United Kingdom appear to be wholly antithetical to the release of the most mundane government information, as perhaps was once the case in Australia. Whether that be so or not, the FOI Act presupposes a situation in which the only claim of accessibility which is to be admitted or denied is one made by a Minister of a new government of a different political persuasion from that of the former government. The coming of the FOI Act in Australia changed entirely the factual substratum upon which the convention is based. There is now an essential presumption that individuals are, subject to legitimate claims of exemption and some other safeguards, entitled to access to government information. It follows that the convention whereby incoming Ministers are placed under a restriction in relation to having access to their predecessors’ documents has to be seen as under considerable strain. Would it not be odd if the new Minister were inhibited from access, whereas a member of the public, seeking access under the Act pursuant to criteria quite different from those applicable to the new Minister under the convention, were not to be so inhibited? Yet the convention, unlike the FOI Act, is not based on the information contained in the document or documents in question, but is rather based on their source. It seems to me to follow that the convention should be left to be worked out as a convention operating as between outgoing and incoming Ministers of different political persuasions under a self-denying ordinance accepted by the latter. It cannot operate of itself to deny to citizens such rights as they otherwise have under the FOI Act. Given the existence of the FOI Act, it is, with respect, hard to predict how much life the convention could have left. For present purposes it is enough to say that in my opinion the existence of the convention does not constitute reasonable grounds for a claim that disclosure of the present documents would be contrary to the public interest.No submission was advanced on behalf of the first respondent that the decision in Re Bartlett was erroneous. Reservation is nevertheless expressed as to the conclusion reached by the learned Deputy President -- but it is unnecessary to make any further comment in respect to this decision.
151 For present purposes it is sufficient to conclude that this final observation of the Tribunal was not material to the conclusion that it had previously reached. Its discussion of the convention arose as but a reason why its conclusion earlier expressed was not affected by that convention. Whether the convention was correct or incorrect was thus not material to the conclusion reached by the Tribunal.
CONCLUSIONS
152 Each of the findings of the Tribunal -- namely its finding as to the "purpose" for which the Executive Summary was prepared under s 34(1)(a) and its finding as to the public interest under s 36(1)(b) of the 1982 Act -- were findings of fact open to it upon the evidence. Although the evidence upon which the finding as to "purpose" was reached may be the subject of considerable reservation, for this Court itself to reach a different conclusion would involve the Court trespassing beyond the "question of law" raised on appeal and would involve this Court in impermissibly reviewing a finding of fact open to the Tribunal on the evidence.
153 It is not for this Court to express its own conclusion as to whether it would have been satisfied that the "purpose" for which the Executive Summary was prepared was for the "purpose of submission for consideration by the Cabinet", nor to express its own conclusion as to whether disclosure of the Working Party Report "would be contrary to the public interest". Given the findings of fact as made by the Tribunal, the upholding of the claims for exemption cannot be said to be an "unwarranted withholding of disclosure" of the documents to which access was sought.
154 The Tribunal concluded that the first respondent had discharged the onus imposed by s 61 of the Freedom of Information Act by establishing the exemptions claimed pursuant to s 34(1)(a) and (c) and s 36(1)(b) of that Act. In the present proceeding, it is not open to this Court to disagree.
155 It is considered that the appeal should be dismissed with costs.
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I certify that the preceding seventy-four (74) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Flick.
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Associate:
Dated: 11 December 2008
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Solicitor for the Applicant:
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Gilbert + Tobin
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Counsel for the First Respondent:
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P Hanks QC with R Graycar
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Solicitor for the First Respondent:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/188.html