O'Sullivan and Australian Federal Police [2011] AATA 188 (22 March 2011)

CATCHWORDS – FREEDOM OF INFORMATION - effect of amendments to FOI Act on applicable law – whether disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law – whether disclosure of methods would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures - effect of disclosure on proper and efficient conduct of the AFP’s operations – whether documents subject to legal professional privilege – whether irrelevant matter deleted under s 22 – decision affirmed.

PRACTICE AND PROCEDURE – confidential hearing – principles relevant to exercise of discretion – relationship between s 35 AAT Act and s 63(1) FOI Act.

PRACTICE AND PROCEDURE – obligation to give reasons – effect of s 63(2)(a) of the FOI Act on that obligation.

PRACTICE AND PROCEDURE – whether applicant entitled to ask for reasons to be divided according to categories of documents he identified in his request – whether one request or six.

ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/6159
GENERAL ADMINISTRATIVE DIVISION )

Decision: The Tribunal affirms the decision of the respondent dated 21 November 2008.

Under the Freedom of Information Act 1982 (FOI Act), Mr Dale O’Sullivan made a request to the Australian Federal Police (AFP) for access to a number of documents. His request has been set out in the following paragraphs. I have decided to affirm the decision under review but note that the provisions of
s 63(2)(a) of the FOI Act prevent me from setting out my reasons in full. To do so would be to contravene that provision for I would have to include matter or information of a kind referred to in s 63(1) i.e. information that is of a kind that is exempt matter contained in a document to which the proceedings relate or information of a kind referred to in s 25(1).[1]

2. In a letter dated 25 June 2008 and addressed to the AFP, Mr O’Sullivan requested:

“1. All documents pertaining to be the Australian Federal Police files and records of Dale Gary O’Sullivan D.O.B. ...

2. All documents made available to Australian Federal Police by Victoria Police from their conduct of Operation Loops, against Dale Gary O’Sullivan D.O.B. ...

3. All documents made by Australian Federal Police about assisting Victoria Police in their Operation Loops, against Dale Gary O’Sullivan D.O.B. ...

4. All documents made by Australian Federal Police Agent Andrew Sullivan D.O.B. ... about and involving the affairs and investigations into Dale Gary O’Sullivan D.O.B. ...

5. All documents used and obtained by Australian Federal Police Freedom of Information Unit to process and make decisions pertaining to Dale O’Sullivans [sic] (D.O.B. ...) F.O.I. Request 2008/7257.

6. All documents and correspondence made and received to process F.O.I. Request CMS 2008/7257.

N.B. Please note all 6 F.O.I. Requests involve the affairs of Dale O’Sullivan (D.O.B. ...) and each Request is to be answered separately, as each request is uniquely different.

3. Mr O’Sullivan enclosed an application fee of $30 with his request. As the AFP rightly pointed out in its reply to Mr O’Sullivan on 7 July 2008, six separate requests required six separate fees.[3] Given that the documents he sought in his requests numbered 2 to 4 fell within the scope of his request numbered 1, the AFP told him that it could treat the first four requests as one and regard his application fee as applying to that one. As for his requests numbered 5 and 6, the AFP told Mr O’Sullivan that it could treat them as one but that it would require a further application fee. If Mr O’Sullivan did not agree with its interpretation of the requests and with its proposal to reduce the number of application fees payable, the AFP asked him to send it five further application fees for the requests numbered 2 to 6.[4]

4. In his reply of 9 July 2008, the substance of Mr O’Sullivan’s response was that he agreed with the approach suggested by the AFP.[5] He recast his request by stating that the first paragraph was to remain but that the following words were to be added to it:

“1. All documents pertaining to be the Australian Federal Police files and records of Dale Gary O’Sullivan D.O.B. ... including

A Documents made available to Australian Federal Police by Victoria Police from their conduct of Operation Loops against target Dale O’Sullivan D.O.B. ...

B Documents made by Australian Federal Police about assisting Victoria Police in their Operation Loops against target Dale O’Sullivan ...

C All documents made by the Australian Federal Police Agent Andrew Sullivan ... about and involving the affairs and investigations into Target Dale O’Sullivan ...”

“ I agree F.O.I. Request 1 by its nature will automatically capture “including items A, B & C.”

However to identify Question 1, it is agreed that without “sub sections A, B & C” your right to release information would suffer if the question 1 remained without clarification of “A, B & C”, because it invites the use of a blanket reply covering all documents, when in fact the reply must still cover the one question (1) but will pertain to 3 levels of A B & C so as to make it clear the areas of any one objection or releases come from.

6. In relation to the first request, the AFP has identified 336 documents, which comprised 937 folios, as coming within it.[7] The AFP granted Mr O’Sullivan’s request for access in relation to some folios. Those to which it granted him access in full are set out in Schedule E to these reasons. I have not set out those to which it granted Mr O’Sullivan access in part but they will become clear from the Schedules in which I have identified those to which the AFP refused him access either in full or in part. It did so on the basis of one or other of a number of exemption provisions under the FOI Act.

7. The AFP has also relied on s 22 of the FOI Act to delete part of the information in the folios listed in Schedule 5.

8. The FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[8] (FOI Amendment Act). I considered their effect in Re LJXW and Australian Federal Police.[9] Of significance in this case are the amendments it made to the exemption provisions in Part IV of the FOI Act. Those amendments were made by Part 2 of Schedule 3 to the FOI Amendment Act, which is entitled “Main exemption amendments”. Those amendments commenced operation on 1 November 2010[10] but they apply only in relation to requests for access made under s 15 of the FOI Act and received at or after that day. That is the effect of item 39 of Part 4 of Schedule 3 of the FOI Amendment Act. As Mr O’Sullivan made his request for access before 1 November 2010, I have reviewed the decision made by the AFP on the basis of the exemption provisions as they applied before their amendment.

9. In Re LJXW and Australian Federal Police, I also considered whether I should have regard to the amendments to provisions that are made by an item that is found in a Part other than Part 2 of the FOI Amendment Act and said:

“8. ... Some of those amendments relate to sections that may inform the construction of an exemption provision amended by Part 2 of Schedule 3. An amendment of that sort is found in item 3 of Schedule 1 when it repeals s 3 of the FOI Act and substitutes another[11]. Section 3 sets out the objects of the FOI Act.[12] It is a provision that has been referred to in cases such as Chandra and Minister for Immigration and Ethnic Affairs[13] (Chandra) and Colakovski v Australian Telecommunications Corporation[14] (Colakovski) in interpreting s 41. Each case referred to the object of the FOI Act consistently with the principle stated by Bowen CJ and Fisher J in The News Corporation Ltd v National Companies and Securities Commission[15] that:

“... The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.”[16]

9. Section 14[17] of the FOI Act was also referred to in Colakovski in the interpretation of the exemption in s 41. That section has been repealed by the FOI Amendment Act.[18] Its substance finds expression in a different form in
s 3A[19] which has been inserted.[20]

10. The amendments to ss 3 and 14 appear in Schedule 1 to the FOI Amendment Act. No transitional provisions are made in relation to them but I am mindful of s 8 of the Acts Interpretation Act 1901 (AI Act) which provides:

“Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed, or anything duly done or suffered under any Act so repealed; or

(d) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;

and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”

11. The application of s 8 depends very much on the particular terms of the amending legislation and of the legislation it is amending but a starting point is the identification of the right, privilege, obligation or liability that has been acquired, accrued or incurred under the repealed provisions. In this case, the right that has been affected is the right of access. This is given by
s 11 but I will refer only to s 11(1)(a) for the moment:

“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

The right is a right to obtain access to a document of an agency but is not an unlimited right. First, it is a right that is subject to other provisions of the FOI Act. They include provisions such as s 22 to which I will return.[21] Second, it is a right that does not extend to an exempt document. As it does not extend to it, the correlative duty of the agency does not require it to give access to an exempt document.

12. In view of the fact that Parliament has not amended s 11 of the FOI Act, which refers to the right, and has expressly provided that the amendments to the exemption provisions in Part 2 of Schedule 3 apply only in relation to requests for access made under s 15 of the FOI Act and received at or after that day, it seems to me that Parliament has intended that the boundaries of a person’s right of access are to be determined by reference to the day on which that person’s request was made. This is confirmed by item 65 of Part 3 of Schedule 4 of the FOI Amendment Act. Part 1 of Schedule 4 deals with amendments relating to the Information Commissioner, his powers, appeals to the Federal Court and review by the Tribunal. Subject to two exceptions that are not of consequence in this regard, the amendments apply only to requests for access made under s 15 that are received after 1 November 2010.[22] As the boundaries of the right of access under the FOI Act are determined not simply by reference to the words of the particular exemption provision under consideration but by the other provisions in the legislation, it seems to me that Parliament intended that any section that is relevant in the interpretation of the exemption provisions should be read in its unamended form when interpreting the exemption provisions in their unamended form.”

11. Mr O’Sullivan complained that he had made four requests but had been given only one decision. By the four requests, I understand Mr O’Sullivan to be referring to the first four requests set out in his letter of 25 June 2008 or to the first request in that letter and the three paragraphs to that request - (a), (b) and (c) – which he identified in his letter of 9 July 2008. Although he had agreed to have his four requests grouped together, Mr O’Sullivan wanted the AFP to identify the particular documents it found by reference to the paragraphs of his request. At the hearing, Mr O’Sullivan said that the AFP had cunningly mixed up the four parts of his request. By refusing to give him access to documents coming within (b) or (c) of his request, he submitted, the AFP can deny him access to documents coming within paragraph 1 of it. He is entitled to all of the documents in paragraph 1 because they are all of the documents in the AFP’s files and records relating to him. Any person can write to the Victorian Police, Mr O’Sullivan said, and get his own file. He has obtained files from the Victoria Police and they did not take him to VCAT,[23] as he put it. These days, it is possible to obtain a police report on other people.

12. There is a question whether the AFP was required to respond to Mr O’Sullivan in this way. I think that the answer is that it is not required to do so. My reason for reaching that conclusion lies in the right of access that Mr O’Sullivan is given by the FOI Act. In so far as it relates to documents of the AFP, s 11(1) expresses the right in this way:

“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(b) the agency’s ... belief as to what are his or her reasons for seeking access.”

13. It is immediately apparent from the wording of the section that the right to obtain access is not an absolute right. It is a right that is qualified by the remaining provisions of the FOI Act. That is apparent from the opening words of both ss 11(1) and (2): “Subject to this Act”. The qualifications take several forms. One is that the right does not extend to exempt documents.[24] Another is that the right does not extend to access to documents when processing the request would substantially and unreasonably divert the agency’s resources from its other operations.[25] Yet another relates to the timing of any access that may be granted. Section 21 permits access, though granted, to be deferred in certain circumstances.

14. Another important qualification relates to the request itself. In order to “activate” that right, as it were, a person must make a request in accordance with the FOI Act. Unless the person wishes to obtain access to his or her own personnel records:[26]

“... a person who wishes to obtain access to a document of an agency ... may request access to the document.”

An application fee may be payable when the request is made.[27] The request must comply with the requirements of s 15(2). Apart from being in writing,[28] being sent by post to the agency or delivered to an officer of the agency at any of the agency’s addresses specified in a current telephone directory[29] and specifying an address to which notices may be sent, the request must:

“provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency ... to identify it”.[30]

15. The request that is made for access becomes the constant point of reference in an agency’s processing a request. Subject to qualifications of the sort I have mentioned, the person is entitled to the documents described in the request but no more. This is the document to which an agency will refer in identifying the documents requested. Only when it is refusing access on the basis that it is “... apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents”[31] and either no obligation would arise under s 22 or the person would not wish to have access to an edited copy, may the agency proceed without having identified any or all of the documents to which the request relates.

16. The central and defining role played by the request is clear from the way in which the right of access is framed in s 11 and the requirement that the request provide sufficient information to identify it as required by s 15(2)(b). It is further underlined by the provisions of s 24(6). Under that provision, an agency must not refuse to grant access to a document on the ground that the request does not comply with s 15(2)(b) unless it has first complied with ss 24(6)(c), (d) and (e). In summary, the agency must give the person a reasonable opportunity to consult with an officer of the agency with a view to putting the request in a form that complies with s 15(2)(b) and providing the person with any information that would assist in doing so.

17. That the request is the constant point of reference is also clear from
s 22. Regard is had to that section when part of a document is an exempt document or part of a document contains information that would reasonably be regarded as irrelevant to the request. The agency may decide to grant access to that part of the document for there is nothing in the FOI Act that prohibits disclosure of a document. Prohibition may be found in other legislation but, if it is not, disclosure is a matter entirely within the agency’s discretion.

18. What s 22 does is to recognise that the right of access of the person requesting it does not extend to exempt documents or to information that is irrelevant within the meaning of s 22(1)(a)(ii). At the same time, it creates a right that is subordinate to, but separate from, the right of access given by s 11. The right is the correlative right to the duty imposed by s 22 on the agency to make and grant access to a copy of the document from which deletions have been made in the circumstances set out in ss 22(1)(b) and (c). Those circumstances relate to the possibility of making such a copy, whether it is reasonably practicable to do so and whether the person would wish to have access to such a copy.

19. Together with s 20(3), s 22 also qualifies a further right that the FOI Act confers upon the person requesting access to a document. That right is found in s 20(2) and again it is a correlative right to the duty imposed upon an agency. That duty is subject to ss 20(3) and 22. It is a duty to give access to a person in the form requested by that person if that person in fact requests it in a particular form. The form that a person chooses is limited to one of those listed in s 20(1):

“Access to a document may be given to a person in one or more of the following forms:

(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document.”

The qualification found in s 20(3) is a qualification based either on workload considerations or on considerations relating to the preservation of the document or relating to infringement of copyright.

20. Form relates to the manner of access and not to the order in which documents are presented for access in the chosen form. There is nothing in the FOI Act that requires an agency to present the documents in any particular order.

21. That means that, when the AFP processed Mr O’Sullivan’s request, it was obliged to identify the documents coming within his request. After initially making four individual requests, he recast it into a single request. The opening words of his request described a very broad range of documents. The only feature that they had to have was that they were files or records of Mr O’Sullivan. By that I understand Mr O’Sullivan to have requested all documents held by the AFP that related to him. All that paragraphs A, B and C did was to identify three specific categories of documents that he thought the AFP might hold.

22. Subject to the exceptions and exemptions to which I have referred, Mr O’Sullivan had a right to have access to those documents in the form he specified provided it was a form specified in s 20(1). The AFP was not under a duty to present the documents it identified in any particular way and so Mr O’Sullivan had no right to have them presented in any particular way. Had he wanted to have them presented to him in a way that indicated whether the documents had been identified in response to paragraph A, B or C of his request, Mr O’Sullivan should have chosen to make three separate requests and to have paid three separate application fees. He did not do so and the AFP is not under any duty to treat his request as if he had.

23. Part of the hearing was held in the absence of Mr O’Sullivan. The AFP had given notice to both Mr O’Sullivan and the Tribunal that it wanted to make submissions in his absence when it lodged its Statement of Facts and Contentions on 15 April 2009. In relation to seven exemption provisions, it wrote:

“The respondent is unable to put forward submissions in relation to the remaining exemption claims as to do so would disclose the nature of the exemption information. The respondent accordingly seeks to make oral submissions in private in relation to those claims.”[32]

By the time the matter came to a hearing, the AFP had refined its position regarding exemptions but still wanted to present evidence and make submissions in Mr O’Sullivan’s absence.

Proceedings generally held in the presence of both parties and open to the public

24. The Administrative Appeals Tribunal Act 1975 (AAT Act), which establishes the Tribunal, provides for applications to be made to it for review of decisions. Its provisions set out a framework within which the parties proceed when an application is lodged. They also set out a framework within which the Tribunal reviews the decision that is the subject of an application. The AAT Act contemplates that, generally, the framework will remain consistent regardless of the type of decision under review. Consistency is one thing and rigidity another. The framework has sufficient flexibility to permit the Tribunal to adapt its procedures to the needs of the case or class of case.[33] Its rigidity comes in such things as the manner of applying for review of a decision, the persons who may do so and their representation before the Tribunal. It comes in such things as the constitution of the Tribunal, its obligation to give the parties a reasonable opportunity to present their cases and to inspect documents in all of its Divisions other than the Security Appeals Division[34] and its obligations in relation to the manner in which it reaches its decision.[35] If there is to be a variation in the framework itself, as distinct from any flexibility built into that framework, that variation must be made by Parliament itself. Any variation comes if Parliament itself adds to, excludes or modifies the provisions named in s 25(6) of the AAT Act.

25. An essential plank in the framework (applying to all proceedings other than those in the Security Appeals Division) is provided for in s 35(1):

“Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.”

Inherent in the proposition that a hearing shall be in public is the proposition that it shall be held in the presence of all of the parties. Section 35(1A) assumes that when it requires the Tribunal to take such steps as are reasonably necessary to preserve the public nature of a hearing when, under s 35A, the Tribunal permits a person to participate in a hearing by a means of communication other than personal attendance.[36]

26. Section 35(2) of the AAT Act gives flexibility to this part of the framework. It provides:

“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

27. Section 35(2) confers a discretion on the Tribunal to make all or any of the orders it sets out. It may only exercise that discretion if satisfied of the desirability to do so because of the confidential nature of any evidence or matter because of some other reason. Even if satisfied in this way, it is not obliged to exercise that discretion. The desirability of preserving confidentiality is but one consideration. There may be equally weighty reasons that favour the Tribunal’s refusing to preserve confidentiality.

28. Parliament has recognised that there are competing concerns in exercising the discretion it has conferred upon it. In s 35(3), it tells the Tribunal how it is to go about its consideration of whether it should make one or more of the four orders referred to in s 35(2). It restates the four by placing them into two groups when it provides:

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

29. Section 39 recognises that an order restricting the disclosure of evidence to some or all of the parties is inconsistent with the Tribunal’s obligation to act with procedural fairness to the parties.[37] It does that by qualifying its statutory statement of part of that obligation in s 39(1):

“Subject to sections 35 ... the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

30. As permitted by s 25(6) of the AAT Act, Parliament has modified the operation of s 35 in relation to proceedings to review decisions under Part VI of the FOI Act. It has done so in two ways. First, it has dealt with the disclosure of exempt matter contained in a document to which the proceedings relate and of the existence of information of the kind referred to in s 25(1) of the FOI Act. “Exempt matter” is “... matter the inclusion of which in a document causes the document to be an exempt document.”[38] Information of the kind referred to in s 25(1) is:

“... information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or subsection 37(1).”

“In proceedings under this Part, the Tribunal shall make such order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:

32. Section 63(1) refers to the Tribunal’s making an order under s 35(2) of the AAT Act. The exercise of its power to make an order is informed by the matters set out in s 35(3). The practical effect of s 63 is to implicitly modify that part of s 35(3), requiring the Tribunal to take as the basis of its consideration of whether to make an order under s 35(2), “... that it is desirable that ... the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to ... all the parties ...”. It has done so by providing in s 63(2)(b) that:

(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in subsection (1).”

33. Parliament has chosen to use the word “may” in s 63(2)(b) of the FOI Act. In ordinary usage, the word “may” is:

“... 1 used to express permission 2 ... used to express a possibility ⁭ I may come with you if I get this finished. ...”[39]

34. A passage from the judgment of Gummow, Hayne, Heydon and Crennan JJ in Leach v R[40] illustrates that, in some circumstances, the word “may” is regarded as giving permission or power that must be exercised and, in others, is regarded as giving permission or power that is within the decision-maker’s discretion to choose whether to exercise it or not. The context of the High Court’s consideration was s 19(5) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT). It provided that:

“The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.”

35. Their Honours concluded that the word “may” was not used to convey a discretion but to confer a power that a court was obliged to exercise once it was satisfied of the matters specified in s 19(5).[41] They referred to a passage to the same effect from the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation.[42] His Honour had considered whether the Commissioner of Taxation was obliged to allow a rebate when satisfied that certain conditions had been met as to the non-payment of dividends. As explained by Gleeson CJ and McHugh J in Samad v District Court (NSW),[43] the High Court in Finance Facilities Pty Ltd v Federal Commissioner of Taxation had decided that:

“... The context indicated that it was not intended that the Commissioner should have a discretionary power to defeat that right or entitlement. The word ‘may’ conferred a power; and the statutory intention was that the power be exercised if the condition was fulfilled. ...”[44]

36. When a statutory power is conferred by words of permission, Gleeson CJ and McHugh J said, questions whether it is a mandatory or discretionary power and, if discretionary, the issues that may taken into account in its exercise:

“... are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation ...”[45]

Their Honours cited the judgment of Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ in Ward v Williams[46] with approval. We refer to one passage from their Honours’ judgment in that case:

“... One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case [Julius v Bishop of Oxford (1880) LR 5 AC 214 at 235]. His Lordship spoke of certain cases and said of them ‘[they] appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.”[47]

37. The principles to be drawn from these cases require me to look to the purpose for which the power was conferred. I should do that having regard to the principle stated by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:

“... The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.”[48]

38. Regard may be had to the context in which legislation was enacted to ascertain the mischief that Parliament intended to remedy and so ascertain the legislative intent:

“ It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure .... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy .... Instances of general instances in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain meanings of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ...”[49]

39. When I have regard to the context in which the word “may” is used in s 63(2)(b), it is clearly used to confer a power which the Tribunal must use to ensure that neither exempt matter contained in a document to which the proceedings relate nor matter that is information of a kind referred to in s 25(1) is revealed to an applicant. As it is a power that is conferred “notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975”, it clearly cuts across what would otherwise be the Tribunal’s obligation under s 35(3) to take as the basis of its consideration under s 35(2) the desirability of making the content of all documents lodged with, or received in evidence by, the Tribunal available to the parties. That it does cut across it is consistent with the obligation imposed on the Tribunal by s 63(1) not to reveal either exempt matter contained in a document to which the proceedings relate or matter that is information of a kind referred to in s 25(1). It is also consistent with s 25(1) itself. In view of that, it seems to me that s 63(2)(b) not only confers power on the Tribunal but obliges it to exercise that power to exclude the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure of the matter or information to which it refers to the applicant. Parliament has decided that it will not leave it to the Tribunal’s discretion to decide where the balance lies between the public interest in protecting the confidentiality of the information and the public interest in making documents available to the applicant. It will decide the matter and, in doing so, has decided that the public interest in ensuring confidentiality of the specified information outweighs the public interest in according procedural fairness to an applicant.[50]

40. Consideration must be given to the extent to which s 63(2)(b) is intended to protect confidentiality. It is easy to identify the exempt matter contained in a document to which the proceeding relates. During the hearing of the application, that is all of the matter claimed to be exempt in the documents that meet an applicant’s request. Reading ss 63(2)(b) with s 63(1)(a), the protection also extends to “information of a kind referred to in subsection (1)” (emphasis added) i.e. information of a kind that is exempt matter contained in a document to which the proceedings relate. In the same way, protection is given to matter or information of a kind referred to in s 25(1). What is information of this kind?

41. The expression “of a kind” has been considered in the context of laws relating to taxation, trade practices and customs and excise. Bunnings Group Ltd v Laminex Group Ltd[51] was a case concerned with the fitness for purpose and merchantable quality of goods in the context of Part V of the Trade Practices Act 1974 (TP Act), which has now been renamed the Competition and Consumer Act 2010. Section 74(2)(a) of the TP Act provides that a reference to goods should, unless a contrary intention appeared, be read as a reference to goods “of a kind ordinarily acquired for personal, domestic or household use or consumption.” Young J referred at one stage to a passage from the judgment of Tamberlin J in Air International Pty Ltd v Chief Executive Officer of Customs[52] in which his Honour had considered whether, for the purposes of the Customs Tariff Act 1995, certain goods were of a kind used as replacement components in passenger vehicles. Tamberlin J had said:

“It is helpful to look at actual use, if any, when deciding whether goods are of a kind used as replacement components. When they are so used, then that points to a conclusion that they are “of a kind” so used. The words “of a kind” add a further level of generality to the expression “used” so that even if ... the goods are not so used but are within a range of goods of a type which are used, then they satisfy the required description.”[53]

42. Having analysed the approaches taken by other cases considering the words “of a kind”, Young J accepted that a broad range of evidence might be relevant in answering the statutory question. At the same time, he underlined the need to keep the statutory question in mind to ensure that the evidence does not blur the question or distract a court from it:

“... It would, for example, be a mistake to become so focused on the properties, attributes and intended and advertised uses of the particular goods that the Court fails to address the statutory question. This risk would materialise if the kind of goods were to be identified so narrowly that it amounted to little more than a description of the particular goods.”[54]

43. Although considered in a very different context, Young J’s observations regarding the interpretation of the words “of a kind” are equally applicable to them when they are used in s 63(2). The power given to the Tribunal in s 63(2)(b) to prevent disclosure to the applicant of “matter or information of a kind referred to in subsection (1)” is a power that enables it to protect more than just the exempt matter contained in a document to which the proceedings relate and so to the matter claimed to be exempt in the document to which the applicant has sought access. It extends to information or matter that is “of the same sort”[55] as that in the document for which exemption is claimed. Therefore, for example, it would extend to information or matter that paraphrases or summarises it. It would extend to matter that would, if included in a document of an agency, be of the same sort as that in the document to which the proceedings relate and be exempt from disclosure under the same exemption provisions. It would not extend to matter that would be exempt from disclosure under other exemption provisions. Where information is of a kind referred to in s 25(1), it is necessary to engage in a hypothetical exercise to determine whether the information would, if included in a document of an agency, cause that document to be an exempt document by virtue of ss 33, 33A or 37(1) of the FOI Act.

44. I am satisfied that this is a case in which I must exercise the power in
s 63(2)(b) in so far as the evidence and material was of the same sort as the matter for which exemption was claimed under those provisions i.e. matter or information of a kind referred to in s 63(1) of the FOI Act. If, and in so far as it does, contain any matter or information that does not come within that description, it is matter or information that is inextricably interwoven with matter or information of a kind referred to in s 63(1).

45. The onus of proof imposed on an agency by s 61(1) of the FOI Act is not irrelevant in considering a claim for exemption. That is an onus imposed on an agency to establish that a decision it has given in respect of a request was justified. Taking a decision that a document is an exempt document, the practical consequence of the onus is that, if the agency is to succeed in those proceedings, it must ensure that the Tribunal has sufficient evidence to establish its claim on the balance of probabilities. Generally, an agency will want to produce that evidence itself to the Tribunal. There is, however, nothing to prevent it from relying on evidence produced during the proceedings by the applicant for review or any party joined to the proceeding. When it makes its initial decision, the agency’s position is no different. Rather than satisfying the Tribunal, the decision-maker must satisfy him or herself on the balance of probabilities that the document is an exempt document. That will mean that the decision-maker must look to the evidence before making a decision. If the decision is not supported by the evidence, the decision should not be made. A decision to refuse access on the basis that a document is an exempt document without a proper evidentiary basis, for example, would be a decision that would seek to diminish the right that Parliament has given to every person by means of s 11(1) i.e. the right, subject to the other provisions of the FOI Act to obtain access in accordance with this Act to a document of an agency or an official document of a Minister other than an exempt document.

46. The evidentiary basis on which a decision is made in applying the exemption provisions in the FOI Act underpins the comments made by the Tribunal in Re Williams and Registrar of the Federal Court of Australia[56] of the difficulties faced by an agency when there is no proper evidentiary basis in the first place. The Tribunal was considering a claim that assessments of the work capacity of the four applicants most highly-rated for a position in the Registry of the Federal Court and a document showing the order of merit of five of the applicants were exempt under
ss 41(1) and 40(1)(c). It said:

“ As has been mentioned, it is possible that s 40(1)(c) of the Act could justify the refusal of access in the present circumstances. However, in my opinion, no case has been made out here for the application of that provision. No attempt was made here to demonstrate, by evidence or otherwise, that the ‘substantial’ adverse effect contemplated by s 40(1)(c) would or could reasonably be expected to occur (see Harris v Australian Broadcasting Corp [1983] FCA 242; (1983) 50 ALR 551 at 564; [1983] FCA 242; 5 ALD 545; Public Service Board v Scrivanich (1985) 8 ALD 44; cf Re Witheford v Department of Foreign Affairs (1983)
5 ALD 534 at 544). The difficulties in now establishing such a case are formidable (Science Research Council v Masse [1980] AC 1029 at 1065, 1070-1, 1080-1, 1085; cf Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 40, 62-3, 97). It follows, in my view, that the documents now in question are also not protected by this provision.”[57]

47. In Sankey v Whitlam,[58] to which the Tribunal referred in this passage, Stephen J spoke of the difficulties of relying on evidence that was directed to a class of document rather than to the particular document under consideration. That case concerned, in part, a claim that certain documents were privileged from disclosure in criminal proceedings on the basis that their disclosure would be prejudicial to the public interest. The evidence in support of the claim for privilege was in the form of affidavit evidence sworn by members of the then ministry and senior public servants. It was evidence directed to the class to which the particular documents could be characterised rather than to their contents. It was not suggested that disclosure of their contents would itself result in detriment to the public interest. The:

“... detriment perceived is, rather, that generalized form of apprehended harm which, it is said, will flow from a realization by Cabinet Ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge.

Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. As Lord Reid said in Rogers v Home Secretary[[59]] the speeches in Conway v Rimmer[[60]] have made it clear “that there is a heavy burden of proof” on those who make class claims. ...”.[61]

48. Quite apart from any common law obligation to do so, s 43(2) of the AAT Act requires the Tribunal to give reasons, either orally or in writing, for its decision. It is qualified only by ss 35 and 36D of that legislation. I have referred already to s 35. Section 36D is concerned with public interest questions under ss 36, 36A and 36C. In broad terms, those provisions relate to circumstances in which the Attorney-General or a State Attorney-General has certified or informed the Tribunal that disclosure of certain information would be contrary to the public interest. Those circumstances do not arise in this case.

49. Section 63(2)(a) of the FOI Act qualifies the operation of s 43(2) of the AAT Act by providing:

(a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in subsection (1); ...”.

50. I have already set out the information of a kind referred to in s 63(1). In view of my finding in [44] above that I cannot separate from the matter or information presented in support of the AFP’s case, any matter or information that is not of a kind referred to in s 63(1), I am faced with a difficulty in giving reasons in relation to the exemption claims made by the AFP under ss 33A(1)(a), 33A(1)(b), 36, 37(1)(b), 37(2)(b), 40(1)(d) and 43(1)(c)(ii) of the FOI Act. Any reasons I would give would need to refer to matter or information of a kind that is exempt matter in one or more of the documents to which the proceedings relate. On the face of s 63(2)(a), I am prohibited from including any matter or information of that kind in my reasons.

51. I have written these reasons bearing in mind the restrictions imposed upon me by s 63(2). In the past, I have given reasons, protected by a confidentiality order made under s 35 of the AAT Act and having regard to s 63(1) of the FOI Act, to the respondent. Those reasons would have been available to the Federal Court on any appeal or application for judicial review. On reflection, I do not think that s 63(2)(a) condones my previous practice. It is a blanket prohibition cutting across “anything contained in the” AAT Act. “Anything” includes the obligation that the Tribunal would otherwise carry under s 43(2) of the AAT Act or at common law. It is not limited by the provisions of s 63(1) which are concerned with avoiding disclosure to the applicant of exempt matter in a document to which the proceedings relate or information of a kind referred to in s 25(1).

52. When I test that view of the law against policy considerations, it makes sense. I do not proliferate the number of documents claimed to be, and perhaps found to be, exempt by including information or material that is itself exempt. I do not do so outside the agency with whose functions the subject-matter of the document would be more-closely connected than would be the functions of the Tribunal. Clearly, this view of the law means that considerations of transparency and of open justice are sacrificed. Parliament may, however, choose to make such sacrifices and it seems to me that it has done so in this case. By clearly and unequivocally putting the provisions of the AAT Act to one side, it has decided that this is a case in which it has decided that the public interest in maintaining confidentiality outweighs the public interest in the administration of justice.[62]

53. My conclusion does not absolve me from giving any reasons at all. I have set them out as fully as I think I am able consistently with my understanding of
s 63(1)(a).

“A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

· the document must disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters;

· disclosure of those methods or procedures would, or would reasonably be likely to, prejudice their effectiveness; and

56. It is difficult to take the first two components further in a theoretical sense. They must be a matter for the evidence and findings of fact on that evidence. The third and fourth can be considered further.

57. Section 37(2)(b) requires consideration to be given to the effect of disclosure in two instances. First, it requires consideration to be given to whether disclosure would, or could reasonably be expected to disclose lawful methods or procedures of the kind described in the provision. If it would, the exemption will not be applicable unless disclosure of those methods would, or would be reasonably likely to prejudice the effectiveness of those methods or procedures.

58. The expression “would, or could reasonably be expected” is used as a measure of the relationship that must exist between disclosure under the FOI Act and disclosure of the lawful methods or procedures of the sort described in s 37(1)(b) before an exemption may be claimed under that provision. The evidence must either establish that disclosure must as a logical or necessary consequence have the ability to cause that prejudice (so that it “would” do so) or establish that it is reasonable. The word “could” is “used to express a possibility”.[63] It differs from the word “would” which is used “to express a probability”.[64]

59. The distinction becomes critical when regard is had to the criteria used to describe the lawful methods or procedures whose disclosure is under consideration. Among the criteria they must meet is the criterion that their disclosure “would, or would be reasonably likely” to prejudice their effectiveness. The word “reasonably” is common to both. It derives from the word “reasonable” whose ordinary meanings are those of “sensible; rational; showing reason or good judgment ...”[65]. The word “likely” is a word whose meanings are more nebulous. Its ordinary meanings include that of “probable”,[66] “... having an appearance of truth or fact; seeming as if it would happen, or prove to be as stated; probably ...”[67] and “.... probably or apparently going or destined (do, be, etc): likely to happen. ... seeming like truth, fact or certainty, or reasonably to be believed or expected; probable ...”[68]

60. I will begin with the expression “could reasonably be expected to”. The Full Court of the Federal Court considered that expression in Attorney-General’s Department v Cockcroft[69] when it considered s 43(1)(c)(ii) of the FOI Act. That provision exempts from disclosure that information which concerns certain business or professional matters and which “could reasonably be expected to” prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency. Bowen CJ and Beaumont J said:

“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason J).”[70]

“... stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[71]

62. Cockcroft’s case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another.[72] It said:

“In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.”[73]

63. Returning to the expression “would be reasonably likely”, I note that one of the earliest authorities to consider the word “likely” was Australian Telecommunications Commission v Krieg Enterprises Pty Ltd[74] (Krieg) decided by Bray CJ. His Honour considered the meaning of the word “likely” in the context of whether an employee of the respondent had reasonable cause to believe that the doing of certain work was likely to interfere with or damage property under the control of the Postmaster-General. Bray CJ said, in part:

“ As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word “probable” and both words mean, to adopt the expression of Lord Hodson in the passage previously quoted, that there is an odds-on chance of the thing happening. That is the way in which statutes containing the words have usually been construed: see, for example, Re Bayer Products Ltd’s Application [1947] 2 All ER 188, per Lord Green M.R. at p.191, per Asquith L.J. at p. 193” Dowling v South Canterbury Electric Power Board [1966] N.Z.L.R. 676, Transport Ministry v. Simmonds [1973] 1 N.Z.L.R. 359. Particularly is this so when the statute is a penal statute (see Transport Ministry v Simmonds [1973] 1 N.Z.L.R. 359), or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.

I think that is the meaning which should be attached to the word “likely” in sub-s. (1)(a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned Special Magistrate, therefore, I think that “likely” in the sub-sections means “probable” and I think that that means that there is a more than fifty per cent of the thing happening.”[75]

64. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others[76] (Tillmanns Butcheries) the Full Court of the Federal Court considered whether certain conduct had the likely effect of causing substantial loss or damage to the business of the appellant in the context of the Trade Practices Act 1974. Bowen CJ, with whom Evatt J agreed, reviewed the authorities but was not prepared to prefer one interpretation of “likely” to another. Deane J reviewed the authorities and concluded:

“The conclusion which I have reached is that, in the context of s45D(1), the preferable view is that the word “likely” is not synonymous with “more likely than not” and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage. Whether or not such conduct is likely (in that sense) to have that effect is a question to be determined by reference to well-established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, it will be relevant that the persons engaging in the conduct did so with the purpose of causing such loss or damage.”[77]

65. Franki J in Trade Practices Commission v TNT Management Pty Ltd[78]was concerned with the meaning of the words “is likely to have” in connection with the words “significant effect on competition” as they appeared in s 45(4) of the Trade Practices Act 1974. His Honour's consideration took place in the context of penal proceedings brought under that Act. He canvassed previous authorities and said

“In my opinion, it is desirable to note the warning given by Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union (supra), and not to place a gloss on the section by preferring one meaning of a particular case. If, however, I am required to adopt a view, I consider that the word in s45(2) now under consideration is to be read with due regard to the fact that it appears in a penal statute, that it is linked with the word ‘significant’ and that this means that, whilst the meaning need not be restricted to a situation where the odds are greater than equally balanced or somewhat less than equally balanced, the probability must be something not very far short of ‘more probably than not’, except in unusual circumstances ...”[79]

66. The Tillmanns Butcheries case was again referred to by the High Court in Boughey v The Queen[80] (Boughey). The High Court considered s 157(1) of the Tasmanian Criminal Code which provided that culpable homicide was murder if committed, inter alia, by means of an unlawful act or omission which the person “... knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person”. Gibbs CJ said

“It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word “likely” in ss.156 and 157 of the Criminal Code Act means “probable” and not “possible”. That is its natural meaning. It is the meaning which a draftsman, familiar with common law rules regarding malice aforethought, might be expected to attribute to it. In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject. If “likely” in s.157(1)(c) were regarded as meaning “possible”, that provision would have a very drastic operation, since it would treat as murder a culpable homicide caused by an unlawful act which the offender knew would possibly cause death. A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder.”[81]

67. Mason, Wilson and Deane JJ referred to previous authorities, including Tillmanns Butcheries, and concluded that, in their view, the word “likely” was used with what they:

“... apprehend(ed) to be its ordinary meaning, namely, to convey the notion of - a substantial or “real and not remote” - chance regardless of whether it is less or more than 50 per cent: cf Sheen v Fields Pty Ltd (51 ALR 345 at 348) and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at pp166-167.

There is a further reason why one should not superimpose upon the word ‘likely’ in either s.156(2) or s.157(1) of the Code refinements of meaning which the word does not convey as a matter of ordinary language. A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary: see Jolowicz, Historical Introduction to the Study of Roman Law (1939), pp.491-492; Gray, The Nature and Sources of the Law (1909), pp.176-177. The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty. To bury the word ‘likely’ in s.157(1) of the Code beneath the gloss of ‘more likely than not’ and the explanation of ‘a more than 50 per cent’ or an ‘odds on' chance would be to succumb to that danger. It would also, in our view, be to attribute to the word ‘likely’ a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s.157(1) of the Code.”[82]

68. Both Tillmanns Butcheries and Boughey’s case were referred to by Gummow J in Poignand v NZI Securities Australia Ltd and Others.[83] The case concerned, in part, the standing of unit holders to bring a representative action seeking damages, declaratory relief, an injunction and certain other orders. Their action was brought pursuant to Part IVA of the Federal Court of Australia Act 1976 and required consideration of sub-section 87(1A) of the Trade Practices Act 1974. Sub-section 87(1A), wrote Gummow J:

“... authorises applications of persons who have suffered or are ‘likely
to suffer’ loss or damage by conduct of another person that was engaged
in contravention of the relevant provisions of the TP Act. The phrase ‘likely to’ is susceptible of various meanings, and takes its colour from the statutory context. It may indicate a degree of contingency falling short of probability. This and other shades of meaning are discussed in Boughey v R [1986] HCA 29; (1986) 161 CLR 10; 65 ALR 609, in the context of s157(1) of the Criminal Code (Tas).

One evident purpose of the inclusion of the phrase ‘likely to suffer loss or damage’ in s87(1A) is to afford the opportunity to an applicant to move quia timet by analogy to the obtaining of injunctive relief against the commission of apprehended wrongs. Section 87(1A) is expressed as being without limit to the generality of s80. The power of the court to grant prohibitory or mandatory injunctions may be exercised whether or not there is an imminent danger of substantial damage to any person: see s80(4), (5).

In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’
Union [1978] FCA 45; (1979) 27 ALR 367; 42 FLR 331 at 346-8, in a passage referred to
in Boughey at CLR 20, Deane J discussed the sense to be given to ‘likely’ in s45D of the TP Act. His Honour held that it would suffice for the purposes of that provision if the conduct in question was such that, in the circumstances, there was a real chance or possibility that if pursued it would cause loss or damage.

As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents. It may be that some lesser degree of contingency will suffice for s87(1A) and for s45D. But that is a question for another day.”[84]

His Honour did not need to consider the matter further for he found that the applicants had already sustained loss or damage.

69. I note that, in Department of Agriculture and Rural Affairs v Binnie[85] (Binnie), Marks J, with whom Young CJ and Teague J agreed, considered s 31(1)(e) of the Freedom of Information Act 1982 (Vic). It provided that a document is an exempt document if its disclosure under that Act “would, or would be reasonably likely to ... endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.” Marks J concluded:

“ The expression “reasonably likely” is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real – not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is “odds on”, or where between nil and certainty it should be placed. A chance which in common parlance is described as “reasonable” is one that is “fair”, “sufficient” or “worth noting”. It is not inapt to attribute such meaning to the expression in s. 3(1) of the Act.”[86]

70. Although not directly in issue in the case, this interpretation did not find favour with a later Victorian Court of Appeal. In RJE v Secretary to the Department of Justice and Others,[87] Maxwell P and Weinberg JA preferred the view of Bray CJ in Krieg.[88]

71. Section 37(2)(b) uses both “would, or could reasonably be expected to” and “would, or would be reasonably likely to” and, apart from the common use of the word “would”, it is to be presumed that there is a difference. The word “would”, when used alone, signifies that disclosure of the lawful methods or procedures described in s 37(2)(b) is the logical or necessary outcome of disclosure under the FOI Act and that prejudice to the effectiveness of those lawful methods or procedures is the logical or necessary outcome of that disclosure.

72. The expression “could reasonably be expected to” requires an assessment to be made, on a rational and sensible basis, of what is likely to happen if the lawful methods or procedures described in s 37(2)(b) are disclosed under the FOI Act.

73. Apart from an assessment of what “would” be so, any prejudice resulting from that disclosure is assessed by reference to what “would be reasonably likely” to follow from disclosure under the FOI Act. While retaining the need to make an assessment on the basis of what is reasonable, and so on a basis that is not irrational, absurd or ridiculous, s 37(2)(b) uses the words “would” and “likely” rather than “could” and “expected” as are used in the opening words to s 37(2). Their presence draws me to the conclusion that the expression “would be reasonably likely” requires an assessment to be made, on a rational and sensible basis, of the probable outcome of disclosure and whether that probable outcome would be prejudice of the effectiveness of the lawful methods or procedures.

74. Assessing prejudice to the effectiveness of the methods or procedures referred to in s 37(2)(b) was considered by the Tribunal in Re Mickelberg and Australian Federal Police[89] when it said:

“... in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility. Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies (sic), own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.”[90]

75. I am satisfied that disclosure of the documents, parts of documents, in relation to which exemption has been claimed by the AFP under s 37(2)(b), would, or could reasonably be expected to disclose information of the sort described in s 37(2)(b). Therefore, I am satisfied that the documents, or parts of documents in relation to which the claim is made, are exempt under s 37(2)(b).

EXEMPTION PROVISION: SUBSTANTIAL ADVERSE EFFECT ON PROPER AND EFFICIENT CONDUCT OF OPERATIONS OF AN AGENCY

“Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(c) have a substantial adverse effect on the management or assessment by personnel by the Commonwealth or by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

“This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”

77. The exemption provided for in s 40 is framed in terms of whether disclosure under the FOI Act “would, or could reasonably be expected” to have a certain outcome. In the case of s 40(1)(d), the outcome is that of “a substantial adverse effect on the proper and efficient conduct of the operations of an agency.” My earlier consideration of the words “would, or could reasonably be expected” is equally apposite in this context.

78. The words “substantial adverse effect” have been considered in a number of cases. Beginning with the word “substantial”, its ordinary meanings include that of “... considerable in amount, extent, importance, etc ...”.[91] In considering the meaning of the expression “substantial loss or damage”, Bowen CJ said in Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors[92]:

“The word “substantial” would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling [1984] 1 ALL ER 1; [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.”[93]

“The word “substantial” is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size ... As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word “substantial” in s45D(1).”[94]

79. In Harris v Australian Broadcasting Corporation and Others,[95] Beaumont J considered whether reports of an independent review of the Legal Department of the respondent were exempt within the meaning of paragraph 40(b) of the Act. His Honour found that it was possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say:

“... However, I am not persuaded that any such effect, even if adverse, could fairly be described as ‘substantial’ in its impact .... In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out.”[96]

80. Muirhead J has also considered the expression “substantial adverse effect” as it appears in s 40 in the case of Ascic v Australian Federal Police.[97] He made specific reference to Beaumont J’s use of the word “gravity” which caused him some difficulty. In Muirhead J’s view:

““Substantial” is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees’ Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s. 45D of the Trade Practices Act 1974 which refers to “substantial loss or damage” his Honour’s words that “substantial loss or damage ... includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal” appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations.”[98]

81. In the same year as Muirhead J published his judgment in Ascic, the Tribunal reached the conclusion that a “substantial adverse effect” “connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person”.[99]

82. Deputy President McMahon summarised the effect of these authorities when he considered the same expression, “a substantial adverse effect”, when used in the context of s 39 of the FOI Act. He did so in Re Connolly and Department of Finance[100] when he said:

“... There must be a degree of gravity before this exemption can be made out (Harris v Australian Broadcasting Corp ...); the effect must be “serious” or “significant”: Re James ... Normally a value judgment has to be made as to whether an adverse effect is or is not substantial when considering exemptions claimed under other sections. ...”[101]

83. If a claim under s 40(1)(d) is to succeed, the substantial adverse effect that would, or could reasonably be expected to occur must be on the “proper and efficient conduct of the operations of an agency”. The ordinary meaning of the word “operations” in this context is:

“...4a An act of a practical or technical nature, esp. one forming a step in a process. ... b ...Also, a business concern or enterprise...”[102]

84. In Jorgensen v Australian Securities and Investments Commission,[103] Weinberg J pointed out that:

“ Section 40(1)(d) deals with the “proper and efficient conduct” of agencies. It is concerned with the effect that the disclosure of documents will have on the manner in which an agency conducts its operations, and not with the contents of those documents per se. See for example Re Boehm & Commonwealth Ombudsman (1985) 8 ALN N29. In Searle, the Full Court held that this section was not limited to matters relating to the internal administration of the agency, such as a consultant’s report upon its operations, but extended to the way in which the agency discharged or performed any of its functions. ...”[105]

85. In Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another,[106] Davies, Wilcox and Einfeld JJ rejected a submission that the “conduct of an agency” could be limited to matters related to the internal administration of an agency such as a report by an outside agency or a consultant on its operations. They adopted the view of Deputy President Hall in Re James and Australian National University[107] that the expression extends “to the way in which an agency discharges or performs any of its functions”.[108] The issue for the Tribunal in Re James and Australian National University was considered in the context of a request for documents recording lecturers’ comments in student record sheets together with the names of examiners of honours theses and their tentative grades. Deputy President Hall said that:

“ The question, in the present case, therefore, is whether the expression ‘the conduct of the operations of an agency’, when applied to the University, extends not only to the way in which it carries out its 'administrative' operations, but also its ‘academic’ operations. ...

As a matter of ordinary English I think that the expression ‘the conduct of the operations of an agency’ is capable of extending to the way in which an agency discharges or performs any of its functions. So construed, I agree with Mr Toper that it is capable of extending to the discharge by the University of its academic functions in relation to the awarding and conferring of degrees and diplomas (see s. 6 of the Australian National University Act 1946 (Cth)).”[109]

86. Section 40(2) provides that the section “... does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.” The public interest is relevant in a number of provisions of the FOI Act. They take two forms. A provision such as
s 36(1)(b) sets out one of the two criteria that a document must satisfy in order to be exempt as what is colloquially described as an internal working document. It provides that the disclosure of the document under the FOI Act would be contrary to the public interest. Section 40(2) provides an example of the second form. It requires me to consider whether disclosure under the FOI Act “would, on balance, be in the public interest.” Whichever form is adopted, identification of what is the public interest is common to both. As the leading cases have considered the matter in the context of s 36(1)(b), I will refer to them.

87. What is meant by “contrary to the public interest” was considered by the High Court in McKinnon v Secretary, Department of the Treasury (McKinnon).[110] A conclusive certificate had been issued in relation to a claim that disclosure of certain documents would be contrary to the public interest within the meaning of
s 36(1)(b). Although focused in the main on the conclusive certificate and the Tribunal’s task, some mention was made of the general notions of public interest in their Honour’s judgments. There were three different approaches in the three judgments in McKinnon.

88. Gleeson CJ and Kirby J examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:

“ 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 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)).”[111]

89. Their Honours’ reference to the fact that “judgment” is required in determining where the public interest lies and to that judgment’s being made in a particular context found expression in a later passage in their judgment:

“... This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, or example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of the documents .... The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a ‘general right of access to information ... limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]’ (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to ‘balancing’ create a danger of losing sight of that context. ...”[112]

90. Gleeson CJ and Kirby J were in the minority on the final result but their views are not incompatible with those of Hayne J, who was a member of the majority. Hayne J made the following observations on the meaning of “public interest”:

“ It may readily be accepted that most questions about what is in ‘the public interest’ will require a consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest. As was pointed out in O’Sullivan v Farrer ...[[113]]:

‘[T]he expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects of the legislature could have had in view” ...[[114]].

That is why a question about ‘the public interest’ will seldom be properly seen as having only one dimension.”[115]

91. In contrast to these expressions of the public interest, Callinan and Heydon JJ made the following observations regarding the public interest:

“ Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. ... Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious.”[116]

92. Callinan and Heydon JJ went on to consider the various grounds of public interest that had been claimed by the respondent in that case and said:

“ ... The reference to ‘ongoing sensitivity’ in the first place is not entirely clear. We would be inclined ourselves to think that the fact that the documents have continuing sensitivity, are controversial and affect a minister’s portfolio would not alone provide a reasonable ground for continuing confidentiality. The use of the word ‘ongoing’ strongly suggests currency, and the use of the word ‘controversial’ might well at least imply public interest.

The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed, and it seems to us that this is a matter upon which a minister’s opinion and experience are likely to be well informed and valuable as those of anyone else, including senior officials.

The third ground raises an issue of tentativeness; that is to say, that the documents were concerned with matters that were not settled and recommendations that were not adopted. This too, on its face, is a cogent ground. It is difficult to see how it would not be reasonable for a minister to take the view that the release of the material of that kind would not make a valuable contribution to public debate.

The fourth ground has so much in common with the third that nothing further need be said about it.[[117]]

The fifth ground is far less persuasive. It claims that the difficulty of putting financial data into context provides reason for the non-disclosure of otherwise relevant documents. It is, we think, unrealistic for any minister to believe that he or she can control, or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible.

The sixth ground takes the point that such documents as are prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government, that is to say, responsible government to which we have earlier referred. This cannot be said to be an unreasonable view. The minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.

The seventh ground is at least arguably not reasonable, in effect, that the public may not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist ....

The grounds taken did not clearly articulate something that the oral evidence suggested, namely that the respondent was concerned that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way. Indeed, cross-examination of the appellant’s witnesses certainly did go some way towards demonstrating lack of balance, indeed, lack of balance even in the reporting of the particular issue with which the Tribunal was concerned. That would not however be a ground that we would regard as reasonable, for the same reasons we would not reject a ground based upon an asserted lack of technical expertise, or inability to understand jargon on the part of each and every member of the public.”[118]

93. The discussion by Callinan and Heydon JJ of the seventh ground needs to be read with their observations regarding their third ground. It would seem to be consistent with other observations they made earlier in their judgment regarding the opinion evidence given by Mr Dennis Rose, who has formerly been Secretary of the Attorney-General’s Department and President of the Australian Law Reform Commission, and Professor Peter Dixon, who is an applied economist. Mr Rose had expressed an opinion that disclosure of documents that were provisional in nature or that were superseded would make a very useful contribution to the public debate. Callinan and Heydon JJ said:

“... Contrary to Mr Rose’s opinion that the exposure of these would make ‘a very useful contribution to the public debate’, in our opinion documents of that kind are more likely to mislead or confuse, or to make no contribution to any useful, or currently relevant debate.

Some of Professor Dixon’s evidence made the point, incontestable we think, that the topics were of public interest, as to the way in which, for example, ‘bracket creep’ adversely affected many taxpayers. But a distinction that he too did not make in his evidence was the distinction between provisional or superseded documents, and current ones. The former could do little to advance the analyses which Professor Dixon and other economists would wish to do, of ‘the Treasury’s apparent concern with the number of people who move from one tax bracket to another in any given year’.”[119]

94. Hayne J also appears to support the proposition that there could, on the evidence in that case, be a public interest in refusing disclosure of documents in circumstances where they would be likely to mislead. He said:

“... In the case of those particular documents, the relevant grounds for the claim were grounds asserting that release of the material shown in the documents had ‘the potential to lead to confusion and to mislead the public’. The appellant did not assert that this could not constitute a reasonable ground for the claim that had been made.”[120]

95. I will refer finally to an earlier decision of Davies J as President of the Tribunal in Re Howard and Treasurer of Commonwealth of Australia.[121] His reasons for finding that there existed reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest were summarised in the head note. Mr Howard had requested documents provided to the then Government by an Australian Council of Trade Unions’ (ACTU) Task Force during the formulation of the 1984/85 Budget. When in opposition, the Government had forged an Accord with the ACTU regarding economic policy. In particular, the Government had agreed to consult with the ACTU regarding income and prices policies including taxation. Access was refused to a minute to the Treasurer and a telex to the ACTU. Both documents advised the Treasurer on the implications and estimated cost of certain taxation options. Davies J referred to previous authorities from which he gleaned that the whole of the circumstances needed to be examined. Those circumstances included any public benefit perceived in their disclosure.[122] As general propositions, he drew five propositions to which I referred in Re McKinnon and Secretary, Department of Prime Minister and Cabinet.[123]

96. Mr Howard had framed his submissions around three points. First, the Accord was a political document. Second, the ACTU had not produced any evidence as to whether maintaining the confidentiality of their discussions was important to them. Third, there is a clear public interest in not only the reality, but the appearance, of equal treatment of claimant groups and their representatives in the Australian community. The Government of the day had appeared, Mr Howard submitted, to have treated the ACTU in a special manner. Davies J dealt with these submissions and analysed the evidence in a way consistent with the approach that appears to underpin the judgments of the High Court in McKinnon:

“ In the present case, I think there were and are reasonable grounds for concluding that disclosure of the documents would be contrary to the public interest. In the preparation of the Budget, the Treasurer and officers of his Department would have given consideration to a wide range of options. Some options would have been noted and not further considered, others may have been given scant attention. Some options may have been given serious consideration but not adopted for one reason or another. In the course of the development of the Budget, new options may have come to light. In the end, the Budget would have been formulated. The authorities to which I have referred recognize a public interest in protecting from disclosure such a process of deliberation. Protection of the deliberative process encourages ‘creative debate and candid consideration of alternatives’, to use the words of Wilkey J (Jordan v Department of Justice, supra, [591F (2d) 753 (1978)] at 772). It prevents premature disclosure of possible options and confusion arising between options considered and options adopted. And lastly it protects the integrity of the decision-making process by enabling the government to be judged by what it has decided to do rather than by material it has taken into account. These elements of the public interest are as significant in this country as they are in the United States or in the United Kingdom.”[124]

97. As I have said, s 40(2) requires a consideration of what would, on balance, be in the public interest as does s 33A(5). That section qualifies the exemption specified in s 33A(1) in relation to matters of Commonwealth/State relations and information communicated by a State to the Commonwealth. The relationship between ss 33A(1) and (5) was considered by the Federal Court (Woodward, Wilcox and Burchett JJ) in Arnold (on behalf of Australians for Animals) v. Queensland and Anor[125] (Arnold). Wilcox J said:

“Finally, it is important to bear in mind the significance of sub-s(5) in the scheme of s33A. Sub-section (5) assumes that, as a general principle, there is a public interest in the non-disclosure of a document falling within sub-s(1). But it contemplates that, nonetheless, it may, on balance, be in the public interest for matter in that document to be disclosed. The sub-section does not specify criteria for consideration in the making of that judgment. All relevant circumstances must be taken into account. One of those circumstances will
always be the principle enshrined in s3 of the Act.
...
It will be noted that Parliament was not content merely to espouse a policy of extending access to information, as stated in s3(1). The legislature went further by requiring the implementation of that policy, as far as possible, in the exercise of the discretions conferred by the Act. Although it would not be correct to regard s33A(5) as conferring a discretion, the command of s3(2) is an indication that Parliament regarded the principle constituting a weighty
factor to be taken into account in making a judgment as to the public interest in any decision whether to disclose particular documents. In a particular case, especially where the degree of public disadvantage caused by disclosure is small, or the prospect of any public disadvantage is comparatively remote, that principle may itself be enough to tip the balance in favour of disclosure, notwithstanding that the information falls within s33A(1).”[126]

“Reference has also been made to sub-s(5) of s33A which provides: ‘This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.’ That sub-section does not confer a discretion upon anyone. It requires a determination of a matter of fact, albeit a matter upon which different minds might well, in a particular case, reach different conclusions. Where either branch of sub-s(1) is found to apply, what sub-s(5) does is raise the question whether nevertheless it can be affirmed of matter in the document that its disclosure under the Act would, on balance, be in the public interest. In reaching that determination, it is clear that the tribunal would have regard
to the object of the Act expressed in s3, but it would also have regard to the provision by Parliament of the exemption. It might be expected in practice to look for special features of the instant case which might indicate where, in that particular case, the balance lay. Parliament having provided an exemption, and an escape route from that exemption, I do not think it is very profitable to put a gloss upon the terms which Parliament has itself laid down as a test to be applied - it is for the decision maker to decide whether he can affirm on balance that disclosure would in the public interest.”[127]

99. At the time Arnold was decided, the second of the three objects of the FOI Act (which is the only object relevant to the right of access to information) was expressed in this way:

“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; ...

100. It remained in this form until recently amended by the FOI Amendment Act. Section 3 now makes no reference to the limitations imposed by the “exceptions and exemptions necessary for the protection of essential public interests and private and business affairs of persons ...”. Despite that, they remain in the form of the exceptions in Parts II and III of the FOI Act and in the exemptions in Part IV. The right to access to a document of an agency or an official document of a Minister is not read down in light of the exceptions and exemptions. Rather, it is defined by them. Therefore, an exemption is not read down by reason of a person’s having a right of access. It remains part of the context defining that right and part of the context in which a decision whether disclosure under the Act would, on balance, be in the public interest.

101. Applying the principles to s 40(2), I must make a finding of fact whether disclosure under the FOI Act would be in the public interest. It is not a matter of discretion. I need to have regard to the basis of the exemption provided in s 40(1). That is to say, I need to have regard to the fact that, in broad terms, Parliament has considered that documents are not accessible under the FOI Act if their disclosure in that context would, or could reasonably be expected to affect the operations of an agency in a manner specified in ss 40(1)(a) to (e). Also relevant is the use that will, or may, be made of the documents if they were disclosed. Their proposed use may be for a purpose that favours disclosure but regard must be had to the degree of disadvantage that will, or may, flow to the public.

102. I am satisfied that disclosure of the documents, parts of documents, in relation to which exemption has been claimed by the AFP under s 40(1)(c) and (d), would, or could reasonably be expected to disclose information of the sort described in either ss 40(1)(c) or (d) as the case might be. I am not satisfied that disclosure of the document would, on balance, be in the public interest. Therefore, I am satisfied that the documents, or parts of documents in relation to which the claim is made, are exempt under either ss 40(1)(c) or (d) as appropriate.

“A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”

104. The qualification in s 42(2) refers to documents of the kind referred to in s 9(1). In summary, they are documents provided by an agency to its officers, or used by its officers, for the purpose of making decisions or recommendations under an enactment or scheme and affecting rights, privileges or benefits, to which persons may be entitled, or obligations, penalties or other detriments, to which they may be subject. The documents may be gathered together in some ordered form such as a manual but they may be less ordered and less formally presented. It is enough that they are provided for use or are used for the stated purposes.

105. Section 9(1) is itself subject to a qualification. Excluded from those documents that would otherwise come within its description are those “... documents that are available to the public as published otherwise than by an agency or as published by another agency.” Documents of that sort would include text books published by a private publishing house and available to the public for purchase.

106. The fact that documents of that sort are excluded from the ambit of
s 9(1) does not bring them back into the ambit of s 42(1). That follows from the fact that documents of this sort are excluded from the ambit of the FOI Act altogether. In the case of library material maintained for reference purposes, it is excluded from the definition of “document” in s 4(1). Consequently, the right to obtain access to a document that is given by s 11(1) of the FOI Act does not extend to it. In the case of documents that are available for purchase in accordance with arrangements made by an agency, s 12(1)(c) provides that a person is not entitled to obtain access to them under Part III. That is the Part which sets out the right of access in s 11 and regulates the machinery of access. That is to say, it regulates matters such as the making of a request for access, the deletion of matter that is exempt under Part IV or that is irrelevant to the request and the giving of access.

107. Legal professional privilege is a rule of substantive law. A person may use it to:

“...resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”[129]

It is apparent from this formulation that there are two limbs to the privilege. Principles relating to the dominant purpose limb of the formulation were examined by Young J in AWB Limited v The Honourable Terence Rhoderic Hudson Cole[130] and in AWB Limited v The Honourable Terence Rhoderic Hudson Cole (No 5).[131] In the earlier case, his Honour had also examined the second limb relating to litigation.[132] As he said:

“The crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, will attract privilege where they occur in the litigation context ...”.[133]

I am concerned with the dominant purpose limb of legal professional privilege in this case and will refer to some of the relevant principles in the following paragraphs.

108. It is essential that there be a relationship of client and legal adviser and that the communication be made within that relationship. As Lord Buckmaster said in Minter v Priest:[134]

“ The relationship of solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person speaking is a solicitor, and the person to whom he speaks is his client affords no protection.”[135]

“In other words, the communication which is protected by the privilege must be one which is made or received by a lawyer in the capacity of lawyer: Alfred Crompton Amusement Machines Ltd v Custom and Excise Commissioners (No 2) [1972] 2 QB 102 at 129, 136, 138

While there is this distinction between the employment of the solicitor, and the character in which a communication is made, I do not accept that it requires that each individual sentence spoken in the course of a single meeting to be individually analysed. ...”[137]

110. The reason for the rule was explained by Advocate General Sir Gordon Glynn:

“Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”[138]

“... Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. ...”[140]

112. Entitlement of this kind does not extend to communications engaged in for the purposes of furthering a fraud or a crime. Where the communications are of that nature, they do not attract legal professional privilege in the first place. It is not a case of legal professional privilege’s being waived.[141]

113. In AWB Ltd v Cole (No 5),[142] Young J considered what amounts to legal advice:

“(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character ...

(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client ...”[143]

114. Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:

“... [L]egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise ... The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or they are themselves actually communicated to the lawyer ...”[144]

115. When Hodgson J decided Standard Chartered Bank of Australia Ltd v Antico,[145] the relevant test was one of sole purpose and not of dominant purpose as it now is. Despite this, his further comment regarding the compass of legal professional privilege remains relevant:

“... It seems to me that the sole purpose is to be applied to the original communication, and then the privilege will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test: however, the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than of something else.”[146]

116. What amounts to a dominant purpose was considered by Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd:[147]

“(7) The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose .... The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time ...”[148]

117. The fact that legal professional privilege attaches to communications rather than to documents means that the privilege may attach to documents which were not written for the dominant purpose of obtaining legal advice but which were copied for that purpose:

“... [P]rima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.

... Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten ..., the administration of justice.

... I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.”[149]

118. The party claiming legal professional privilege must establish it on the balance of probabilities and may do so:

“... by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[150]

119. As a rule of substantive law, it has application beyond legal proceedings.[151] It is not a rule that permits a court or Tribunal to weigh a person’s interest in resisting the production of the communications either against another’s interest in seeing them or against a background of the behaviour of the person claiming legal professional privilege. If communications are subject to legal professional privilege, a court or Tribunal cannot order their production. The privilege is that of the client but the client may waive it, either intentionally or by implication.[152] As Gibbs CJ has said:

“... where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[153]

120. Even if the client intends not to waive the privilege or has not even turned his or her mind to the question, his or her intentional acts may be regarded as inconsistent with the maintenance of the confidentiality of the communication:

“... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[154]

121. The mere fact of disclosure to a third person, though, does not of itself amount to waiver[155] but:

“ Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend on the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[[156]], questions of waiver are matters of fact and degree. ...”[157]

122. Legal professional privilege may only be abrogated by the clear words of a statute or by necessary implication.[158] There is no suggestion that there has been any statutory abrogation in this case.

123. As a general proposition, legal professional privilege may be claimed in legal proceedings in relation to advice sought from and given by a lawyer employed by the government. It may be claimed provided the professional relationship between the lawyer and the government agency seeking advice has the necessary quality of independence. In Waterford v The Commonwealth of Australia[159] (Waterford), the High Court considered the relationship of client and legal adviser in the context of correspondence passing between the Attorney-General and the Treasurer and between officers of the then Deputy Crown Solicitors’ office and officers of the Treasury. Mason and Wilson JJ held that:

“... there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. ... To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.”[160]

124. Brennan J was more circumscribed in his views and accepted only that officers of the Attorney-General’s Department or of the Commonwealth Crown Solicitor’s Office did not lack the independence that is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. They had given advice to officers of The Treasury. The evidence to which he referred in reaching that conclusion was that:

“The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day. Counsel for the appellant expressly declined to argue that the Department of the Treasury’s advisers in this case lacked the independence which the safeguards to which Mason J. and I referred are intended to secure. I would therefore reject the submission that the officers of the Attorney-General's Department or the Commonwealth Crown Solicitor’s Office lack the independence which is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. ...”[161]

125. The independence or otherwise of legal advice given by the Legal and Advice Branch of the Office of Workplace Services (OWS) arose in the case of Rilstone v BP Australia Pty Ltd[162] (Rilstone). Besanko J found that the OWS was an executive agency within the responsibility of the Minister for Employment and Workplace Relations. The documents over which legal professional privilege was claimed had been created during the course of an investigation carried out by the OWS. They were created in the exercise of statutory investigatory powers under the Workplace Relations Act 1996.

126. Besanko J was not satisfied on the evidence that the documents were created for the dominant purpose of seeking legal advice from OWS’s Legal and Advice Branch but he was satisfied on the evidence that it had the necessary degree of independence. His Honour referred to the evidence that the Legal and Advice Branch was the Workplace Ombudsman’s central legal division providing nationwide legal advice to inspectors and senior management. It was responsible for engaging and instructing external legal providers such as the Australian Government Solicitor and other legal providers engaged by the Workplace Ombudsman. He concluded:

“In this case the applicant might have put forward more detailed evidence as to how the Legal and Advice Branch, was the decision-maker operated and its role in the OWS organisation. However, in my opinion, this case has similarities with the facts in Waterford and ... the necessary degree of independence has been established or, put another way, it has been established that the Legal and Advice Branch was a legal adviser for the purposes of legal professional privilege.”[163]

127. In Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2)[164] (Telstra v MCITA), Graham J came to the contrary conclusion in relation to advice given by lawyers who were employees of Telstra. He noted that:

“ No evidence whatsoever has been led by Telstra to establish the role which the various legal practitioners performed within Telstra. In particular, no evidence has been advanced to disclose the measure of independence of the legal practitioners in question and their ability to provide impartial legal advice, given the roles they have had to perform.”[165]

“In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.”[166]

128. Later that same year, Branson J considered the same question in Rich
v Harrington[167] in relation to advice given by the Office of General Counsel (OGC) located in Price Waterhouse Coopers (PWC). Her Honour found that the person holding the position of General Counsel was a partner of PWC and, as did each of the solicitors in the OGC, held a current practising certificate. That Office operated as a separate unit within PWC and legal advice was provided with the same level of objectivity as would be expected of external lawyers. It is located separately from PWC’s business units, its documents and files are maintained separately and its offices are capable of being locked. The office provided legal advice and legal services to PWC on all issues that touched the firm or required legal advice including regulatory enquiries, litigation, contract reviews and transactions. When necessary and appropriate, it briefed external lawyers and counsel to support it in its role and to provide external legal advice and services.

“... It may be that as in-house lawyers, including corporate counsel, play an increasingly important role in advising and providing other legal services to their employers and firms, the common law has come to accept that the requisite independence can be ensured by measures of the kind adopted by OGC ...”[168]

130. Her Honour declined, however, to decide whether the measures were enough in that case because she had to decide that question in the context of the particular advice that was claimed to attract legal professional privilege. The advice was given in respect of allegations and claims given by one of PWC’s partners,
Ms Rich, against others in the firm. Branson J said:

“58 In reaching a decision as to whether the relationship between OGC and the respondents was such as to secure to OGC’s advice concerning
Ms Rich’s allegations and claims an independent character, I am not required to speculate about how General Counsel, or other solicitors in OGC, in fact approached the giving of that advice (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [7]). It may be that General Counsel and each solicitor in OGC was fully conscious of, and capable of avoiding, the insidious influences of factors such as loyalty to individual partners and to the firm, including its leadership, concern for the reputation of the firm and the reputations of individual partners in the firm and other like matters. The critical question is whether the relationship between OGC and the respondents with respect to
Ms Rich’s allegations was one of professional detachment.

59 To answer the above question it is necessary to give consideration to the nature of Ms Rich’s allegations and the significance that they might have for General Counsel and the OGC generally. As mentioned above, they were made by one partner against other partners. It seems uncontroversial that they were of a kind capable of tarnishing the reputation of the firm of which the OGC is a part. They cast aspersions of a personal, rather than a purely professional kind, on the General Counsel’s partners including those partners who comprised the leadership of her firm. The General Counsel and the Deputy General Counsel were themselves likely respondents in the litigation in prospect. Because of its likely subject matter, that litigation, should it eventuate, could reasonably be expected to attract a high level of media interest of a relatively sensational kind. For these reasons I conclude that
Ms Rich’s allegations were by reason of their content inherently likely to engage the personal loyalties and the duties and interests of all partners of PwC – and probably many employees of the firm as well.

60 I therefore conclude that, having regard to the nature and significance of the allegations raised by Ms Rich in her letter of 2 July 2004, the relationship between OGC and the respondents was not such as to secure the advice of the OGC concerning Ms Rich’s allegations the objectively independent character necessary to support the respondents’ claim of client legal privilege. The OGC was not in a position to give professionally detached advice to the respondents concerning allegations of the character of those made by Ms Rich.”[169]

“... communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications .... In Kennedy v Wallace,[[170]] Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

132. Legal advice is obtained by those in the private sector and private citizens in relation to legal proceedings brought against them or that they may contemplate or institute. It is sought to ensure that they know what they can and cannot do under the law. To that extent, the public sector is no different. Where a difference lies, however, is in the fact that, to varying extents and in varying circumstances, Ministers and agencies in the public sector have responsibility for developing policy. If accepted by Cabinet and ultimately passed into law by Parliament, that policy has the effect of changing the law. In the course of developing that policy, Ministers and agencies may seek advice as to the state of the existing law and as to the impact that certain changes might have upon it. Is legal advice in those circumstances subject to legal professional privilege assuming, of course, that it is given by an independent legal adviser and the dominant purpose test is met?

133. I will begin with Waterford. Mr Waterford had asked the Department of the Treasury (Treasury) for certain documents relating to projections in the Budget Papers for 1982-83. He then made a second request under the FOI Act for the documents in the possession of Treasury and relating to the processing of his request. Among those documents were memoranda between Treasury and the Attorney-General’s Department, minutes between Treasury officers and the Treasurer and letters between the Attorney-General and the Treasurer. Legal professional privilege was claimed.

“... The plain reading of this provision would suggest that Parliament has acknowledged expressly that legal advice tendered in connexion with the process of administrative decision-making will attract the privilege. ...”[172]

135. The term “administrative decision-making” covers a wide range of decisions but it is often used to refer to decisions of an administrative character and so made under an enactment as in the case of the Administrative Decisions (Judicial Review) Act 1977. Not all of the activities of the public sector are directed to making decisions under an enactment in that sense. A passage from the judgment of Brennan J in Waterford suggests that legal professional privilege may have a wider application:

“ In any event, I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which a document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.”[173]

136. Although he did not need to go so far in Waterford, his Honour’s reference to “functions and duties” and the need to know the restraints upon them as well as upon powers, suggests that legal professional privilege may extend to legal advice obtained for the purpose of developing policy. His initial statement of the principle in the passage I have quoted in the previous paragraph did not limit the privilege to legal advice obtained for the purposes of functions and duties having a statutory basis.

137. The documents claimed to be exempt under s 42(1) are those described in the following table:

DOCUMENT	FOLIO NOS.	DATE	AUTHOR	DESCRIPTION	EXEMPTION CLAIMED
268	825	27/02/2007	AFP	Case note	825 (PEC)[174]
298	883-884	23/01/2008	AFP	Case note	883 (PEC)
302	890-891	04/02/2008	AFP	Case note	890 (PEC)
334	932-933	02/05/2008	AFP	Case note	932 (PEC)

138. I have examined each of the folios and am satisfied that they contain a summary of legal advice that the AFP has asked for and obtained from the DPP. The Office of Director of Public Prosecutions (Office) is established by s 5(1) of the Director of Public Prosecutions Act 1983 (DPP Act). That office consists of the Director of Public Prosecutions (DPP) and members of staff.[175] The DPP must be a legal practitioner[176] in the sense that his or her name is on the roll of barristers and solicitors of the High Court kept under the rules in force under the Judiciary Act 1901 or of a Supreme Court of a State or Territory.[177] The Office is part of the Executive Government in the sense that it is a body established by Parliament and comes within the Attorney-General’s portfolio. For the purposes of the Public Service Act 1999, the Director and the staff of the Office, who must be engaged under that legislation, constitute a Statutory Agency.[178]

139. The functions of the DPP are set out in detail in s 6 of the DPP Act. I will refer only to the first two paragraphs for they provide a taste of the functions conferred on the DPP:

(a) to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth; and

(b) to carry on prosecutions of the kind referred to in paragraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prosecutor), whether or not instituted by the Director; ...”[179]

The Director is not required to undertake all prosecutions. This is a fact recognised by ss 9 and 10 of the DPP Act.

140. In the performance of his powers, the DPP is subject to directions or guidelines given by the Attorney-General.[180] Section 8(2) provides:

“Without limiting the generality of subsection (1), directions or guidelines under that subsection may:

(a) relate to the circumstances in which the Director should institute or carry on prosecutions for offences;

(b) relate to the circumstances in which undertakings should be given under subsection 9(6); and

141. The fact that the Attorney-General has this power is not a diminution of the independence of the DPP. It is simply a reflection of the fact that the Attorney-General is the First Law Officer in the Commonwealth and so responsible for the administration of the law in the Commonwealth including its criminal law. As First Law Officer, the Attorney-General is accountable to Parliament for the administration of the law. In the context of the criminal law, that means that he is accountable to Parliament for decisions made in the prosecution process.

142. The DPP may give directions to others in accordance with s 11. Section 11(1) provides:

“The Director may, by instrument in writing, give directions, or furnish guidelines, to:

(i) conducts investigations in relation to offences against the laws of the Commonwealth; or

(ii) institutes or carries on prosecutions for offences against the laws of the Commonwealth;

with respect to the prosecution of offences against the laws of the Commonwealth.”

143. Although the DPP also has a role in relation to the recovery of civil remedies his primary role is that of the institution and conduct of prosecutions for criminal offences. In that role, he may request the Commissioner of Police of the AFP for assistance in the investigation of the matter.[181] There is a clear division in the DPP Act between the role of the Director as a prosecuting body and the AFP as an investigative body.

144. The role of the AFP as an investigative body is also found in the Australian Federal Police Act 1979 (AFP Act) under which the AFP is established. It sets out the functions of the AFP. Most of them are framed in terms of the provision of police services and police support services for various purposes. Functions of relevance in this case are:

“(bf) the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign:

“(bg) the provision of police services and police support services in relation to establishing, developing and monitoring peace, stability and security in foreign countries; ...”[184]

“(c) to do anything incidental or conducive to the performance of the foregoing functions.”[185]

145. The expression “police services” is defined in s 4(1) to include “... services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise.”[186] The expression “police support services” is defined to mean:

(a) the provision of police services by an Australian or foreign law enforcement agency; or

(b) the provision of services by an Australian or foreign intelligence or security agency; or

(c) the provision of services by an Australian or foreign regulatory agency.”[187]

146. It is apparent from their legislative foundations that, although the roles of the AFP and of the DPP complement each other, they are bodies independent of each other and independent of other agencies of the Commonwealth.

147. Having regard to the documents over which exemption is claimed and to a copy of the advice from which the summaries are taken, I am satisfied that they represent either communications between the AFP and the DPP or summaries of communications between the two. I am also satisfied that the communications have occurred for the purpose of enabling the AFP to carry out its role as a body providing police services. The communications have been for the dominant purpose, if not the sole purpose, of seeking and giving legal advice directed to enabling the AFP to carry out its statutory role and duties. The legal advice that has can be characterised as being sought and given as part of the process of the AFP’s administrative decision-making. I am satisfied that the legal advice has been sought from and given by a member of staff of the Office who has authority to act for the DPP. That member of staff may well be a legal practitioner herself – and I would expect that she is - but I have no express evidence of that. It is, however, not necessary that I do in this case. Under the DPP Act, the DPP must be a legal practitioner. As McHugh J said in Sue v Hill,[188] “... under the common law of agency a person is not responsible for acts which he has not authorised or for acts done beyond the scope of the agent's authority.”[189] The converse is also true and I am satisfied that the staff member has acted within her authority and that the DPP is responsible for it. Therefore, I am satisfied that the documents over which exemption has been claimed under s 42(1) would be privileged from production in legal proceedings on the ground of legal professional privilege.

148. A person’s legally enforceable right to access extends only to a right to obtain access in accordance with the FOI Act. In order to enliven that right, a person must request access to the document to which he wishes to have access and do so under s 15. While the FOI Act defines the legally enforceable right, it is the particular request that circumscribes the documents to which that right applies in any particular instance. It is the request to which repeated reference should be made to ensure that it is understood and that a search is made for all of the documents to which it refers. It is often the case that documents will be found that come within the request but also contain references to material that goes beyond what is requested. An agency may not refuse access to a document simply because, although otherwise coming within the request, it also contains some information that is exempt from disclosure under the FOI Act or that is irrelevant to the request. That is to say, exemption or irrelevancy of part of a document does not of itself render the whole document exempt or irrelevant. That is clear from the obligations imposed by s 22 regarding the deletion of exempt or irrelevant matter. An agency must consider whether it is obliged to prepare a copy that does not disclose that exempt or irrelevant matter. It may, of course, decide that it will not claim the exemption or that the information is irrelevant. That is not the case here as the AFP has decided that to grant access to the documents in the Table at [137] above on the basis that to do so would “... disclose information that would reasonably be regarded as irrelevant to ...” Mr O’Sullivan’s request.

149. Section 22 requires an agency or a Minister to grant access to a document that would otherwise be an exempt document if:

“(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”

150. I have already considered the meaning of “reasonable” and “reasonably” in the context of s 37(2)(b).[190] It means that I must make an assessment of whether granting access to a document under the FOI Act would, when the matter is considered on a rational and sensible basis, disclose matter that would be regarded as not connected with the documents requested and so irrelevant to the request.

151. What is meant by the word “possible” as used in s 22(1)(b)? Its ordinary meanings include “... 1 achievable; able to be done ... 2 capable of happening ...”.[191] The ordinary meanings of the word “practicable” include
“...1 capable of being done, used or successfully carried out; feasible...”.[192] The word “practical” has the same meanings:

“... But practical has the further connotation of ‘efficient, sensible, useful’ and is therefore more judgemental. ...”[193]

152. It seems to me that the two words have been chosen carefully. The word “possible” is used in s 22(1)(b) because the sole focus of the enquiry is whether deletions are able to be made to a document that would otherwise be an exempt document with the result that it is no longer an exempt document.[194] Workload considerations are not relevant at this point for the sole enquiry is whether it is “possible” to make a copy that would not be an exempt document or disclose information irrelevant to the request.

153. On the face of the provision, it is not relevant to enquire whether the resulting document would make sense to a reader or whether it would be misleading. Section 22(1)(b) appears to focus on the mechanical task of deleting that which makes the document an exempt document from that which does not. Deletion is the only tool that may be used and so, for example, rewriting or reordering the document in any way is not contemplated. Section 22(1)(b) does not appear to focus on whether the material in the document that remains after the deletions have been performed makes any sense.

154. In Re Carver and Department of the Prime Minister and Cabinet[195] (Carver), the Tribunal cited the judgment of Beaumont J in Harris v Australian Broadcasting Corporation (No 2)[196] (Harris) as authority for the proposition that:

“... Paragraph (b) appears to be directed to whether the exempt matter is capable of being severed from non-exempt matter without the edited copy being misleading (see Harris v Australian Broadcasting Corporation (No 2) ... at 266 per Beaumont J). ...”[197]

155. When I go to Harris, I cannot find any passage that introduces a requirement that the resulting copy not be misleading. Harris followed on from an earlier judgment of Beaumont J in Harris v Australian Broadcasting Corporation,[198] in which he had considered s 36 of the FOI Act. That section exempts what can loosely be described as internal working documents if disclosure under the FOI Act would be contrary to the public interest.[199] Section 36(5)[200] qualifies what may be regarded as an internal working document, as specified in s 36(1), by providing that:

“This section does not apply to a document by reason only of purely factual material contained in the document.”

156. In his earlier judgment, Beaumont J had referred with approval to a passage from Environmental Protection Agency v Mink[201] in which the Supreme Court had looked at Exemption 5 in the United States’ Freedom of Information Act 1966. The Supreme Court had considered the historical background to Exemption 5 deciding that it:

“... demonstrates that Congress intended to incorporate generally the recognized rule that ‘confidential intra-agency advisory opinions ... are privileged from inspection’ (under discovery law) ‘memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government. ...”.[202]

157. In Harris, Beaumont J referred also to a further case from the United States in which Tamm J had said:

“ The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material. It has long been a rule in this circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. In 1974, Congress expressly incorporated that requirement into the FOIA, which now states that ‘[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt’. 5 U.S.C. § 552(b) (Supp. V ¶2975).”[203]

“ It would seem that the severability test which has been applied in the American courts is reflected in s. 22(1)(b) of the local Act.”[204]

158. His Honour then went on to decide whether the investigative material consisting of underlying facts could be severed from material in the nature of recommendations. On his view, one document consisted of factual material in its entirety and no issue of severability arose. With regard to the second document, he found three sections that contained factual material. Those sections could be severed from the rest of the document and access given to them. In the remaining sections of the document, he found “occasional examples of factual material” and decided he did “... not think that it is possible to sever this material from its context and it is thus not ‘purely’ factual”. Beaumont J’s reference to its not being “purely factual” was a reference to the document’s not being purely factual within the meaning of s 36(5). Had he been able to sever it, he would have been left with a document that was purely factual and so not a document coming within the compass of s 36(1) at all. On my understanding of his judgment, Beaumont J took a purely mechanical approach to the issue. It was not an approach that was determined or even influenced by whether the passages that remained after severance would be cohesive or intelligible.

159. The other cases to which the Tribunal referred in Carver were Re Bracken and Minister for Education and Youth Affairs[205] (Bracken) and Re Waterford and Treasurer of the Commonwealth of Australia (No 2)[206] (Re Waterford). In the report of Deputy President Hall’s reasons in Bracken, I can find no reference to his considering s 22 of the FOI Act. In Re Waterford, Deputy President Todd did consider s 22 after he had decided that certain material was exempt under s 36 of the FOI Act. The report, which is presented with lines deleted, records his saying:

“ On the question of releasing figures alone, I accept Mr Evans’ assertion that [... two lines ...] deleted. If the whole argument were released a reader would have at least some guidance as to how the figures could be used. If one were in possession of the text it would be possible, assuming one were sufficiently knowledgeable, to assess the reliability of any particular piece of data. Without the text no such assessment is possible and the figures, standing alone and with apparent imprimatur of the Treasury, assume an undeserved certainty.

Despite, then, the apparent ease with which the figures can be excised from the remainder of the document, I find that to do so would lead to the production of a highly misleading document. Section 22 does not operate in these circumstances.”[207]

160. Deputy President Todd did not give any reasons for concluding that
s 22 “... does not operate in these circumstances.” I can find none on the face of s 22. All that s 22(1)(b) requires is that it is possible to make a copy of the document with such deletions that the copy would not be an exempt document (or disclose information reasonably regarded as irrelevant to the request in appropriate circumstances). Parliament has not included misleading as a criterion in s 22(1)(b). Assuming that ss 22(1)(a) and (c) are also met, the obligation upon the agency is to make and grant access to the copy unless it is apparent that the applicant would not wish to have access to it. Section 22 does not base the obligation on any requirement that the copy not be misleading or that the agency might not wish to give access to it for some reason. Whether a document would be misleading has been thought to be relevant in considering the public interest test under, for example, s 36(1)(b)[208] but there is no public interest test encompassed within s 22 either expressly or impliedly.

161. To introduce a requirement in s 22 that the document from which deletions have been made not be misleading is, in my respectful opinion, to introduce a test that is not found within s 22. That conclusion fits with the structure of the FOI Act. It is concerned with access to documents and not to information as such. Therefore, an agency cannot be required to compile information that does not already exist in documentary form. The FOI Act excludes from its compass documents of certain types or having certain characteristics such as those available under the Archives Act 1982[209] or in the memorial collection within the meaning of the Australian War Memorial Act 1980.[210]

162. The only time that the FOI Act concerns itself with information in documents comes in Part IV when it sets out the criteria for determining exempt documents. Some of those exemption provisions are framed in terms of the characteristics of the documents rather than the information they contain. The Cabinet document exemption in s 34 provides a ready example of that. Others are based on the effect that their disclosure would, or could reasonably be expected to, have. Here, the information contained in the document is crucial for it is the effect of the disclosure of that information that is assessed. Section 43 providing an exemption for documents relating to business affairs is an example and so too is s 45 relating to documents containing material obtained in confidence. If the documents are exempt under Part IV, that is an end of the matter. If the information they contain is such that it is not exempt under Part IV, the FOI Act does not allow the agency to question whether the information makes sense or whether the person having access will be able to understand it or will be misled by it. If the question is not asked in those circumstances, it would seem inconsistent to read such a question into s 22(1)(b) or
s 22 generally, which only arises after issues of exemption have been decided.

163. Workload considerations become relevant under s 22(1)(c). It requires a consideration of whether the work is reasonably capable of being done, and so practicable, having regard to the nature and extent of the work involved in deciding on and making the deletions and the resources available to do the work. Whether it is “reasonably” capable of being done depends upon whether it is:

“... 1 sensible; rational; showing reason or good judgement. ... 3 in accordance with good reason. 4 fair or just; moderate; not extreme or excessive. ...”[211]

Again, that enquiry does not extend to a consideration of whether the document that remains after the deletions have been made will make sense to a reader. Had that been a relevant consideration, Parliament would not have limited the matters to which regard is to be had i.e. to the nature and extent of the work involved in deciding on and making the deletions and the resources available to do that work. Parliament could have chosen, for example, the words “reasonably practical”. Arguably, they might have, although not necessarily, introduced concepts of sensibility and usefulness and not simply those of capability of being done and feasibility that accompany the chosen word: “practicable”.

164. The passages in relation to which the the claim for exemption is made are found in the following five documents:

165. I am satisfied that the passages are irrelevant to the request for access made by Mr O’Sullivan. They are short, self-contained passages that relate to another matter entirely and can easily be removed from a copy of the documents, to which Mr O’Sullivan may be given access. Therefore, I am satisfied that it is both possible and reasonably practicable to make a copy of the document from which they have been excluded. As he has not indicated that he would not wish to have access to them in that form, I have decided that he should be given access to a copy of documents 73, 74, 79, 80 and 124 from which the material I have found to be irrelevant is deleted.

166. Having considered each of the folios and the exemptions claimed in respect of each, I have decided that the exemptions are properly claimed. For the reasons I have given, I affirm the decision of the respondent dated 21 November 2008.

I certify that the one hundred and sixty six preceding paragraphs are a true copy of the reasons for the decision herein of

DOCUMENT	FOLIO NOS.	DATE	AUTHOR	DESCRIPTION
73	210-211	12/01/2006	AFP	Case note
74	212-213	25/01/2006	AFP	Case note
79	220-221	09/02/2006	AFP	Case note
80	222-223	23/02/2006	AFP	Case note
124	386-387	04/05/2006	AFP	Case note

[1] Section 25(1) provides:
“Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence of non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or subsection 37(1).”
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 7-8
[3] As drafted at the time Mr O’Sullivan made his request for access, s 4(8) provided that “... where regulations for the purposes of this subsection declare that an application fee is applicable in respect of an application under subsection 15(1) ..., there shall be taken to be an application fee in respect of the application.” Given that s 4(1) defines an applicant as “... a person who has made a request”, the reference to an “application” in s 4(8) must be read as including a request. Subject to exceptions in r 6, r 5(a) of the Freedom of Information (Fees and Charges) Regulations provides that “an application fee of $30 is ... applicable in respect of an application under subsection 15(1) of the Act”.
[4] T documents at 9-10
[5] T documents at 11-13
[6] T documents at 11-12
[7] T documents at 82-134
[8] Act No. 51 of 2010
[9] [2011] AATA 187 at [6]-[12]
[10] FOI Amendment Act, s 2(1), item 6
[11] As previously drafted, s 3(1)(b) provided:
“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:

(c) ...”
As now drafted, s 3 provides:
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
[12] See [...] below
[13] [1984] AATA 437; (1984) 6 ALN N257
[14] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
[15] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
[16] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66; 279; 85
[17] “Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.”
[18] FOI Amendment Act, s 3, Schedule 1, item 2

[19] “(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.

(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:

(a) in the case of the power to publish information or document – despite any restriction on the publication of the information or document under this Act; and

[174] (PEC) indicates that exemption is claimed for part of the folio or folios named.
[175] DPP Act, s 5(3)
[176] DPP Act, s 18(2)
[177] DPP Act, s 3(1)
[178] DPP Act, s 27
[179] DPP Act, s 6(1)
[180] DPP Act, s 8(1)
[181] DPP Act, s 13
[182] AFP Act, s 8(1)(b)
[183] AFP Act, s 8(1)(bf)
[184] AFP Act, s 8(1)(bg)
[185] AFP Act, s 8(1)(c)
[186] AFP Act, s 4(1)
[187] AFP Act, s 4(1)
[188] [1999] HCA 30; 199 CLR 462; 163 ALR 648; 73 ALJR 1016; Gleeson CJ, Gaudron, Gummow and Hayne 11, McHugh, Kirby and Callinan 11 dissenting

[189] [1999] HCA 30; 199 CLR 462; 163 ALR 648 at [228]; 550; 713
[190] See [59]-[73] above
[191] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[192] Chambers 21st Century Dictionary, Revised Edition, 1999
[193] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[194] It is not relevant under s 22(1)(b) to consider the work involved in deciding whether other grounds of exemption may be claimed: Re Carver and Department of the Prime Minister and Cabinet (1987) 6 AAR 317; 12 ALD 447 at 329; 459 per Deputy President Hall, Senior Member Renouf and Mr Taylor, Member
[195] (1987) 6 AAR 317; 12 ALD 447
[196] [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
[197] (1987) 6 AAR 317; 12 ALD 447 at 328; 459
[198] (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545
[199] FOI Act, s 36(1)
[200] A further qualification is found in s 36(6)
[201] [1973] USSC 17; 410 U.S. 73 (1973) at 86
[202] 410 US at 87-88, 89 and cited at [1983] FCA 242; (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545 at 560; 245; 553
[203] Cited at [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560 at 569; 266; 562
[204] [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560 at 569; 266; 562
[205] [1985] AATA 8; (1984) 7 ALD 243; 2 AAR 406
[206] [1985] AATA 114; (1985) 8 ALN N37
[207] [1985] AATA 114; (1985) 8 ALN N37 at [67]- [68]; N47
[208] McKinnon v Secretary, Department of the Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 450; 208; 537 [80] per Callinan and Heydon JJ
[209] FOI Act, s 12(1)(a)
[210] FOI Act, s 13(1)(a)
[211] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

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Administrative Appeals Tribunal of Australia

O'Sullivan and Australian Federal Police [2011] AATA 188 (22 March 2011)