BY v Director General, Attorney General's Department [2002] NSWADT 79 (15 May 2002)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: BY -v- Director General, Attorney General's Department [2002] NSWADT 79

PARTIES: APPLICANT

BY

RESPONDENT

Director General, Attorney General's Department

INTERVENER

Minister administering the Freedom of Information Act 1989 (the Premier)

FILE NUMBERS: 013087

013088

HEARING DATES: 22/11/2001

SUBMISSIONS CLOSED: 22/11/2001

DECISION DATE: 15/05/2002

BEFORE: O'Connor K - DCJ (President)

LEGISLATION CITED: Freedom of Information Act 1989

Interpretation Act 1987

Administrative Decisions Tribunal Act 1997

CASES CITED: Rittau v Commissioner of Police [2000] NSWADT 186 and Kennedy v Commissioner of Police [2001] NSWADT 39

Cerminara -v- Commissioner of Police, New South Wales Police Service and Minister Administering the Freedom of Information Act [2001] NSWADT 95

Hawker v Premier's Department (17 December 1990, District Court, Urquhart DCJ, unreported)

Re Porter and the Department of Community Services (1988) 14 ALD 403

Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626; 3 AAR 169

Re Bracken and Minister of State for Education and Youth Affairs (1985) 7 ALD 243

Simos v Wilkins, No 197 of 1996 (Cooper DCJ, 15 May 1996)

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490

Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

Re Just and the Department of Justice (1996) 10 VAR 126

Re Pratt and Psychologists Registration Board of Victoria (unreptd, 28 April 1998, AAT, Judge Wood, President)

APPLICATION: access to documents - cabinet documents

access to documents - law enforcement & public safety

Freedom of Information Act - access to documents - cabinet documents

Freedom of Information Act - access to documents - law enforcement & public safety

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

C Ludlow, solicitor

FOR INTERVENER

T Robertson SC, barrister

ORDERS: 1. The preliminary questions are determined as follows: (a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable)

(b) As provided by s 57(6) the Administering Minister is entitled to participate as a party in respect of the review of a claim of the kind referred to in Answer (a)

(c) If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision

2. The matter is to relisted for directions.

Reasons for Decision:

1 This decision relates to preliminary questions raised by the Minister administering the Freedom of Information Act 1989 (FOI Act) - the Premier (referred to in these reasons as the Administering Minister); who has been granted leave to intervene.

2 The review applicant (whose name has been anonymised as 'BY') has been refused access to 10 documents held by the Legal Practitioners Admission Board, a statutory body, administered by the Attorney General's Department. The respondent to the appeal is the Director General, Attorney General's Department who has made the determinations the subject of the application for review.

3 The respondent has exercised the power given by the FOI Act to refuse access to each of the documents on the basis that each is an `exempt documents': s 25(1)(a). The bases upon which an agency can claim that a document is exempt are set out in Schedule 1 of the Act. Schedule 1 divides exempt documents into three broad categories: (1) restricted documents; (2) documents requiring consultation; and (3) other documents.

4 In this case the respondent claims that all of the documents are not only exempt documents, but restricted documents. There are three categories of exempt documents which are also restricted documents: Cabinet documents (see cl 1 of Part 1 of Schedule 1); Executive Council documents (see cl 2 of Part 1 of Schedule 1); and documents concerning law enforcement and public safety (see cl 4 of Part 1 of Schedule 1).

5 In relation to all the documents in issue in this case, the respondent relies on one or other of the grounds for exemption set out in cl 4. Clause 4 provides:

`4. Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or

(c) to endanger the life or physical safety of any person, or

(d) to prejudice the fair trial of any person or the impartial adjudication of any case, or

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

(f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or

(g) to endanger the security of any building, structure or vehicle, or

(h) to prejudice any system or procedure for the protection of persons or property, or

(i) to facilitate the escape from lawful custody of any person.

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or

(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or

(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and

(b) if disclosure of the document would, on balance, be in the public interest.

(3) A document is an exempt document if it is a document that has been created by:

(a) the Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or

(b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence.

(4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country.'

6 The FOI Act has five provisions dealing with restricted documents: s 57, s 58A, s 58B, s 58C and s 59. The critical provision is s 59 which permits the Administering Minister to issue a certificate stating that a document is a restricted document, i.e. one covered by grounds for exemption found in cl 1, cl 2 or cl 4 of Part 1 of Schedule 1. Section 59 provides:

`59. Ministerial certificates

(1) A certificate that is signed by the Minister and that states that a specified document is a restricted document by virtue of a specified provision of Part 1 of Schedule 1 shall, except for the purposes of Division 3 of Part 5, be taken to be conclusive evidence that the document is a restricted document by virtue of that provision.

(1A) A certificate under this section must specify:

(a) the reasons for the Minister's decision that the document is a restricted document, and

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based.

(1B) A copy of a certificate under this section is to be given to an applicant seeking access to the document concerned. Such a copy is, for the purposes of section 28 (2) (e), sufficient notice to the applicant of the reasons for the refusal of access and the relevant findings underlying those reasons.

(2) A certificate under this section ceases to have effect at the end of 2 years after it is signed by the Minister unless it is sooner withdrawn by the Minister.

(3) Nothing in subsection (2) prevents the Minister from issuing a further certificate in respect of the same document.

(4) Nothing in this section requires any matter to be included in a certificate if it is of such a nature that its inclusion in the certificate would cause the certificate to be an exempt document.'

7 The effect of s 59(1), in giving conclusive evidentiary effect to Ministerial certificates, is ameliorated by the provisions of Division 3 of Part 5, being ss 58A, B and C. These provisions enable an applicant for review of a refusal of a document the subject of a Ministerial certificate to apply to the Supreme Court for consideration of the grounds on which it is claimed that the document is a restricted document.

8 The present ss 58A, B and C did not form part of the original FOI Act of 1989, they were inserted in 1992. The original Act dealt with the subject of claims that documents were affected by one of the restricted documents exemptions in the one provision, s 57. The District Court was empowered to review such claims, whether or not a Ministerial certificate had been issued. In response to criticism of the way the original provision worked in Ministerial certificate cases, the Act was amended in 1992 to give the Supreme Court a review role in those cases where a Ministerial certificate had been issued; and to limit the hitherto wider power of the Administering Minister not to adopt a Court ruling in cases where it concluded that there were no reasonable grounds for issuance of the certificate. The original s 57 was also amended as part of the 1992 amendments. The legislative history is discussed in more detail later in these reasons.

9 In this case a Ministerial certificate has not been issued under s 59. Accordingly the special provisions contained in ss 58A, B and C are not applicable. The claims to exemption fall to be determined by the Tribunal (which replaced the District Court as the external review body in 1998). The following questions arise:

(a) Is it necessary for the Tribunal to deal with the claims by reference to s 57, or is that a matter for election by the review applicant?

(b) How does the conferral of party status on the Premier under s 57(6) operate?

(c) Does s 57 fetter the ordinary jurisdiction of the Tribunal (to decide what is the correct and preferable decision) so as to limit its power of inquiry to the narrower issue of whether the agency had reasonable grounds for invoking the restricted documents exemption?

10 Section 57 provides:

`57. Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.'

Introduction

11 The FOI Act provides for two streams of external review of decisions by agencies to refuse access to documents: review by the Ombudsman (see Division 1 of Part 5) and review by the Tribunal (Division 2 of Part 5).

12 The Ombudsman's powers to review a determination by an agency do not extend to investigating the conduct of any person or body in relation to the issue of a Ministerial certificate: s 52(5)(a). There is no similar restriction in relation to undertaking review of a case where a restricted document exemption is claimed by an agency and no Ministerial certificate has been issued. The Ombudsman is empowered, in keeping with the usual position, to make a report and any recommendations in relation to access: s 52(6)(a).

13 Section 53 gives a separate right, which may be exercised whether or not review by the Ombudsman has occurred, to apply for external review by the Tribunal. The powers of the Tribunal as set out in the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) apply subject to any `contrary provision' in the FOI Act (see Tribunal Act, s 40). There are instances of express contrary provisions in Division 2 of Part 5, for example s 52(4) requiring the procedures for internal review set down under the FOI Act to be followed instead of those found in the Tribunal Act; and s 52(5), displacing the Tribunal Act's time requirements for lodgment of an application, displacing the administrator's obligations under the Tribunal Act in respect of the practice to be followed in relation to the lodgment with the Tribunal of documents relevant to the proceedings and displacing the powers of the Tribunal to hear and grant applications for the stay of agency determinations.

14 The main provision relating to the powers of the Tribunal in dealing with a review application are contained in s 63 of the Tribunal Act, which provides:

`63. Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.'

15 Counsel for the Administering Minister, Mr Robertson SC, filed written submissions. The applicant was unable to appear at the hearing on this point but filed short written submissions opposing the Administering Minister's submissions. The respondent made no separate submissions, supporting the Administering Minister's submissions.

16 In relation to the three questions set out in para [9] of these reasons, Mr Robertson SC on behalf of the Administering Minister submitted:

(a) In any case where it is claimed that a document is a restricted document, the claim must be dealt with in accordance with s 57.

(b) The Administering Minister consequently is entitled to be a party to the application for review in relation to that claim: s 57(6).

(c) If the Tribunal determines that there are reasonable grounds for the claim, its jurisdiction is exhausted, and it may not go on to exercise its ordinary powers of merits review of the determination as it permitted in relation to claims for exemption falling under Parts 2 and 3 of the FOI Act.

17 If contention (a) is established, contention (b) follows: s 57(6). The key issues are raised by contentions (a) and (c).

18 These issues have already been considered in detail previously by the Tribunal differently constituted: see esp Rittau v Commissioner of Police [2000] NSWADT 186 and Kennedy v Commissioner of Police [2001] NSWADT 39 (Administering Minister appeared); and Cerminara -v- Commissioner of Police, New South Wales Police Service and Minister Administering the Freedom of Information Act [2001] NSWADT 95.

19 The Tribunal has held: (a) that the applicant for review may elect whether to make an application under s 57(1) for the Tribunal to consider whether the agency has reasonable grounds for its claim that the document is a restricted document; (b) the Administering Minister only becomes a party where a s 57(1) application is made; (c) whether or not an application is made under s 57(1), the ordinary jurisdiction of the Tribunal to undertake merits review remains, and the application for review is to be dealt with in the usual way.

20 The practical consequence of these rulings as the Tribunal has recognised is that an applicant for review would rarely be likely to make a s 57(1) application, as there is little to be gained because in the course of exercising its usual jurisdiction the Tribunal will go through a two stage inquiry (though this may not always be obvious) of asking whether a prima facie case exists for invoking the exemption and then go on to consider more closely whether the exemption is established in the circumstances. The net effect is that s 57(1), as interpreted in these decisions, operates as a facility to enable an applicant for review to bring on what amounts to a `strike out' motion.

Threshold Issue: Reopening Prior, Considered Tribunal Rulings

21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister's submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)

24 The present case is one where the questions involved are of such importance, that I should not simply adopt the prior rulings but reconsider them.

Some Legislative Background

25 Section 57, as it now stands, has been set out earlier. It is helpful to set out in full the original s 57 of 1989:

`Consideration of restricted documents

57.(1) The District Court may, on the application of the appellant, consider the grounds on which it is claimed that a document is a restricted document, notwithstanding that the document is the subject of a Ministerial certificate.

(2) In any proceedings under this section, the District Court shall, on the application of -

(a) the Minister administering this Act; or

(b) the agency or Minister concerned,

receive evidence and hear argument in the absence of the public, the appellant and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the appellant's representative.

(3) If the District Court is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the District Court is still not satisfied that there are reasonable grounds for the claim, the District Court shall make an order to that effect.

(5) The District Court shall not make such an order unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.

(7) A Ministerial certificate the subject of an order under this section ceases to have effect at the end of 28 days after the order is made unless, before the end of that period, the Minister administering this Act causes notice to be given to the agency or Minister concerned that the certificate is confirmed.

(8) If the Minister administering this Act causes such a notice to be given to an agency or Minister, the Minister shall also cause a copy of the notice to be given to the appellant and a further copy to be tabled in Parliament within 5 sitting days of the giving of the notice.

(9) Such a notice shall specify -

(a) the reasons for the Minister's decision to confirm the certificate; and

(b) the findings of any material questions of fact, together with a reference to the sources of information on which those findings are based.

(10) Nothing in this section requires any matter to be included in a notice if it is of such a nature that its inclusion in the notice would cause the notice to be an exempt document.

(11) If a Ministerial certificate ceases to have effect by virtue of this section, any document to which it relates shall be taken not to be a restricted document by virtue of the provision of Part 1 of Schedule 1 specified in the certificate.

(12) If the Minister administering this Act withdraws a Ministerial certificate the subject of an order under this section before the end of the period of 28 days referred to in subsection (7), the Minister shall, as soon as practicable, cause notice to be served on the appellant, and on the agency or Minister concerned, that the certificate is no longer in force.'

26 In 1992 major amendments were made: Freedom of Information Amendment Act 1992 (the 1992 Act). The 1992 Act removed from the District Court the role of reviewing claims the subject of Ministerial certificates; and transferred it to the Supreme Court. The existing s 57(1) was amended, and sub-sections (7) to (12) repealed and, in effect, replaced by ss 58A, B and C. dealing with the Supreme Court's new jurisdiction. Apart from transferring the Ministerial certificate review role to the Supreme Court, the other major change was that the power of the Administering Minister to override a District Court finding that there were no reasonable grounds in relation to a cl 4 claim (law enforcement and public safety) was removed from the Act.

27 The amended s 57 comprises sub-sections (1) to (6) of the old s 57 with the important change in s 57(1) that the District Court's powers under s 57 were to be exercised `only if the document is not subject to a Ministerial certificate.' The amended s 57 was repealed and reinserted into the FOI Act in a materially identical form by the Administrative Decisions Legislation Amendment Act 1997 Schedule 5.16[4] as part of the legislative package conferring review jurisdiction on the Tribunal and transferring it from the District Court, which commenced 6 October 1998.

Significance of Issues

28 The contentions are ones of great policy significance for the operation of the FOI Act. It is said that as a matter of law review applicants can not obtain from the Tribunal full merits review in any instance where an agency (or Minister) claims that a document is a restricted document, and the Tribunal is satisfied that there are `reasonable grounds' for the claim - even though no Ministerial certificate has been issued.

29 This position stands in contrast to the position in other jurisdictions where external review of such claims is only curtailed in cases where a conclusive certificate has been issued: for the current Commonwealth provisions, see Freedom of Information Act 1982, ss 33(2), 33(4), 33A(2), 33A(4), 34(2), 34(4), 35(2), 35(4) and 36(3); ss 58(3)-(6); ss 58A - F. (As to the history of the conclusive certificate provisions and the continuing debate, see Senate Standing Committee on Constitutional and Legal Affairs Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978, AGPS 1979), [27.12] to [27.18]; O'Connor `The Freedom of Information Act' (1982) 7 Legal Service Bulletin 55; recently, Fraser `Are conclusive certificate decisions judicially reviewable? (2001) 8 Aust Jnl Admin Law 116) examining the Federal Court (Full Court) decision in Shergold v Tanner [2000] FCA 1420 (appeal to High Court, judgment reserved).)

The Submissions

30 Mr Robertson submitted that s 57 is an example of a `contrary provision' in an enactment conferring jurisdiction which impliedly displaces the Tribunal's usual review jurisdiction. Effect must be given to contrary provisions in accordance with the principle contained in s 40 of the Tribunal Act, which relevantly provides:

'40. When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) ...

(3) ...

(4) In this section:

"relevant enactment" means an enactment under which the Tribunal has jurisdiction:

(a) ...

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.'

31 In the earlier rulings the Tribunal has held that sub-section (1) of s 57 because of the words `on the application of the review applicant' contemplates an application subordinate to the application for review itself. This construction is reinforced by the words in s 57(4) that in cases where the Tribunal is not satisfied that there are reasonable grounds for the claim, it is to reject `the application' when determining `the review application.'

32 The Tribunal's dealt with this contention and the other two contentions in detail most recently in Kennedy's case. For convenience those reasons are set out in an Appendix to this decision.

33 Mr Robertson acknowledged in argument that there were no express words in s 57 saying that the Tribunal was precluded from exercising its usual s 63 jurisdiction. He submitted that this was a case where a necessary implication is to be drawn from the place occupied by s 57 in the scheme of the legislation.

34 Cossins Annotated Freedom of Information Act New South Wales (1997), refers to the unclear drafting of s 57 and the oddity of the policy position that results from the submissions of the Administering Minister. She said: `[I]t is not usual practice under FOI legislation for the powers of an external review body to be restricted in relation to high level or sensitive government documents unless those documents are the subject of a certificate. Thus, the powers of the District Court [now the Tribunal] under s 57 in relation to restricted documents which are not the subject of a certificate, should be no different to the court's power of review in relation to any other type of exempt document' (para 58.19).

35 As to what was the limit of the Tribunal's power when considering whether the respondent had `reasonable grounds' for the claim (contention (c )), Mr Robertson relied on Commonwealth and District Court authority interpreting s 57 and the equivalent Commonwealth authority in cases where challenges were made to the refusal to release documents the subject of a conclusive certificate. The Commonwealth and District Court authority was distinguished in Kennedy on the ground that they dealt with situations where conclusive Ministerial certificates were issued.

36 The leading New South Wales Ministerial certificate case is Hawker v Premier's Department (17 December 1990, District Court, Urquhart DCJ, unreported). In 1990 the then Premier (as Administering Minister) issued a conclusive certificate to prevent an senior Opposition staffer, Mr Bruce Hawker, obtaining access to a report to Cabinet connected with allegations that the Deputy Premier and other senior Ministers had been involved in dealings in land on the North Coast for which the Government had later issued development authorities.

37 The Court held that sub-sections (3) and (4) of s 57 (set out above) limited the scope of the Court's inquiry, and adopted Commonwealth authority dealing with equivalent Commonwealth provisions being Re Porter and the Department of Community Services (1988) 14 ALD 403 at 406. In Re Porter the applicant had sought and been denied access to confidential costings concerning implementation of the Australia Card. A conclusive certificate had been issued. The applicant sought review by the Administrative Appeals Tribunal (AAT) under the Commonwealth provisions, expressed in similar terms to s 57(3) and (4).

38 At 406 the AAT referred to the attenuated nature of the Tribunal's role in conclusive certificate cases:

`What I have said above, and what has been said in previous cases, does of course mean that the Tribunal has a more limited role in "certificated" cases. What the provision for the issue of certificates means, in my opinion, is that there is a distinct shift in responsibility when a certificate is issued. In Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626; 3 AAR 169 at 182 Davies J said that "decisions to issue a conclusive certificate should not lightly be taken and should be made only after taking into account the procedural effects of the issue of the certificate".

But that decision having been taken, the prime responsibility for the refusal to grant access to the document shifts back to primary administration. The Tribunal may find that reasonable grounds do not exist because it finds that there has been some misapprehension of the document, as effectively occurred in Re Bracken and Minister of State for Education and Youth Affairs (1985) 7 ALD 243; or where the Tribunal considers that the FOI Act in particular or some other provision of the law has not been correctly interpreted and applied, as to which see the question that arose in the present case in relation to s 34 (1) (d) of the FOI Act; or where, of course, the Tribunal considers that neither the preferred grounds nor any other grounds are anything other than irrational, absurd or ridiculous. But if it finds that reasonable grounds exist within the parameters described, the Tribunal has no option but to so find and effectively then to leave the responsibility for the decision to refuse access with the administration.'

The External Review Body's Ordinary Powers

39 When the District Court was the external review body, the nature of its review jurisdiction in FOI matters was governed by a provision in the FOI Act itself, s 55. That provision was repealed following transfer of the jurisdiction to the Tribunal. The Administering Minister accepts that the Tribunal Act's provisions as to the nature of the Tribunal's review jurisdiction apply to FOI matters unless displaced expressly or by necessary implication by the FOI Act itself.

40 The original s 55 -

(a) dealt with the nature of the appeal to the District Court (new hearing including receipt of fresh evidence),

(b) conferred on the Court all the functions and discretions of the agency or Minister concerned in respect of the matter the subject of appeal, the order-making powers of the District Court (confirm, disallow and make substitute determination, remit to agency or Minister),

(c) declared that the new order becomes the order of the agency or Minister,

(d) and in sub-section (5) provided `This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given.'

41 On creation of the Tribunal, as noted in the detailed treatment in Kennedy, the old s 55 was not carried over into the revised FOI Act. It will be seen that the District Court's order-making powers as conferred by the old s 55 are replicated in s 63 of the Tribunal Act (set out earlier), and that there is a parallel provision allowing the Tribunal to exercise all of the functions conferred on the administrator. As noted in Kennedy only s 53(4) and (5) of the FOI Act contain express limitations of the powers conferred on the Tribunal by the Tribunal Act; and neither of those limitations touches on the present issue (sub-s (4) excludes the Tribunal Act's internal review procedures, sub-s (5) excludes certain Tribunal Act time limits and Tribunal Act requirements relating to lodgment of agency documents).

42 For present purposes, the only material difference between the powers and functions of the District Court on appeal under the previous provisions and those of the Tribunal under the new provisions (reading the Tribunal Act and the FOI Act together) was the omission of the express limitation in the old s 55(5) which prevented the District Court from determining that access to an exempt document is to be given. (It may be that this question is now addressed by s 124 of the Tribunal Act, which is headed `Application of Act to Exempt Documents under the Freedom of Information Act 1989.')

Powers in Non Ministerial Certificate Restricted Document Cases

43 The Tribunal has only been able to locate one District Court decision after 1992 which is like this case in that it involved external review of a claim to a restricted documents exemption without a certificate having issued: Simos v Wilkins, No 197 of 1996 (Cooper DCJ, 15 May 1996). In that case it would seem from the reasons for decision that no submission was put (though the government was represented by senior counsel) that the Court was limited simply to ascertaining whether there were `reasonable grounds' for the claim.

44 The access applicant, a senior staffer of the Leader of the Opposition, appealed against a refusal by the Acting Director General, Premier's Department to release documents which relied on grounds (1)(a) and (e) of cl 1 (the Cabinet documents exemption). The applicant had sought access to a report to Cabinet relating to assessment of the rent to be paid by Fox Studios Australia Pty Ltd for use of the old Showgrounds site. There is no reference to s 57 of the Act in the decision, and the Court disposed of the matter in the usual way by considering whether the agency had satisfied its onus of proving that the exemptions were properly claimed. It made a full substantive inquiry.

45 I enquired at hearing of Mr Robertson whether there was any legislative history explaining the intended scope of the 1989 version of s 57 and the 1992 version of s 57. He was not able to provide a history, and the Tribunal has undertaken its own research.

46 The Parliamentary debates in relation to the 1989 version of s 57 entirely concentrate on its role as a measure to restrain the misuse of the conclusive certificate power. There is no suggestion in the debates that it is intended to operate as a constraint on the usual jurisdiction of the District Court in cases where the `restricted documents' exemptions are invoked but no Ministerial certificate has been issued.

47 This reading of the debates is borne out by the explanatory memorandum for the Freedom of Information Bill 1988 (No 2) in relation to the original s 57 which states:

`Clause 57 specifies the procedures to be followed by the District Court in investigating matters concerning restricted documents the subject of Ministerial certificates. In particular, it provides that such certificates cease to have effect in relation to a particular document that the District Court considers is not a restricted document unless the Minister confirms the certificate within 28 days of the decision.'

48 The bill giving rise to the 1992 Act was presented to Parliament as a measure to improve citizens' FOI rights in 11 important respects. The explanatory notes and those notes that follow new or amended sections all refer to improvements as compared to the position for applicants that prevailed under the 1989 legislation. There is no explanatory note accompanying the revised 57. There is no reference to the revised s 57 in the debates.

49 The debates reveal that the amending Bill formed part of the response by the government of the day to the agreement that it had entered into with independent members of the Assembly to enable it to form government after the 1991 election. The `Charter of Reform' sought measures which increased the openness and accountability of the government.

50 In particular the Opposition and the Independent members praised the transfer of the review power in respect of conclusive certificates to the Supreme Court and the withdrawal of the right from the Premier as the administering Minister to override decisions that no reasonable grounds existed for a law enforcement documents conclusive certificate. The Opposition referred in debate to the decision of Hawker's case, indicating its dissatisfaction with the outcome in that case and welcomed the new provisions.

51 At the close of the committee stage in the Assembly, the Minister responsible for the Bill, Mr Moore MP (Minister for the Environment) referred to queries as to the nature of the Supreme Court's review jurisdiction raised by Mr Whelan MP (who gave the reply to the Bill on behalf of the Opposition in support) and said: `With respect to Schedule 1 and the proposed section 58A ... it is a limited right of access to the Supreme Court merely for the purposes of reviewing ministerial certificates. Other areas of access to the District Court are preserved as they were. ...' (Hansard, LA, 3547 (5 May 1992)).

52 The absence of any indication in the 1989 and the 1992 debates that the District Court had a limited jurisdiction, of the kind now contended for, points possibly to the conclusion that the Parliament did not understand itself to be limiting the Court's and now the Tribunal's ordinary power of review in respect of claims that a document was a restricted document in instances where a conclusive Ministerial certificate had not issued.

Principles of Statutory Interpretation

53 Ultimately the questions fall to be determined by reference to the principles of statutory interpretation.

54 The principle upon which the Administering Minister's submissions rely is that special provisions dealing with a subject matter are ordinarily to be construed as prevailing over general provisions dealing with the same subject matter. Mr Robertson submits that s 57 is an instance of a provision that deals specifically with a subject matter - restricted documents claims - and as such must prevail over the general provisions found in the other provisions of Division 2 of Part 5: see generally Pearce & Geddes, Statutory Interpretation in Australia (2001, 5th ed) [7.18-21].

55 In the earlier Tribunal decisions the principles seen to be determinative are those that require courts and tribunals when construing statutes to seek to give effect to the purpose and objects of legislation; and to prefer a beneficial construction where a provision is ambiguous or unclear.

(a) Is Section 57 applicable to all non-certificate restricted documents claims?

56 The starting point for analysis must be to seek to ascertain the plain or ordinary meaning of the words used having regard to the legislative context. As Dawson J observed in Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 at 30-31 referring to the governing principle that all words in statutes be given a purposive construction (Interpretation Act 1987, s 33):

`Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section [33] requires a court to construe an Act, not to rewrite it, in the light of the purposes.'

57 The earlier Tribunals considered that the words in s 57(1) `on the application of the review applicant' referred to a separate or further application. That is the way similar words are used elsewhere in the Division in which s 57 is found, Division 2 of the FOI Act. For example in s 56(2) (delayed determinations) the Minister or agency to which a review application relates may make an application for an order allowing it further time to deal with the access application to which the determination in issue relates. Section 56(4)(b) uses identical words to those found in s 57(1) - `on the application of the review applicant'. It does so in the context of Minister or agency decisions of various kinds made before the Tribunal `has disposed of the review application'. The review applicant is given the right to apply to the Tribunal to have the application for review extended to cover any such decisions.

58 These examples support the conclusions of the earlier Tribunals that the expression `on the application of the review applicant' when used in s 57(1) points to an application additional to the application for review. There is no doubt that that is how the phrase is used in s 58A (in Division 3). The principal application for review remains before the Tribunal. `On the application of the review applicant', he or she can have the question of the claim set out in the conclusive certificate considered by the Supreme Court. Once the Supreme Court has made its decision on that application, the review application continues before the Tribunal with its further role in relation to the restricted document claim governed by the Supreme Court decision.

59 The argument that s 57 only becomes relevant where there is a application by the review applicant additional to the application for review is cogent. The plain meaning rule of statutory interpretation, well explained in Kennedy, supports that conclusion.

60 Mr Robertson, for the Administering Minister, contended that the phrase `on the application of the review applicant' is seeking to convey is `on the occasion of the application of the review applicant', i.e. on the occasion of the original review application. The interpretation for which Mr Robertson contends is that the words should be construed as meaning `on the occasion of the review application' or that they are `otiose', i.e. they are superfluous or useless. Courts are extremely reluctant to hold that words have no meaning or effect: see recently, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 510 per McHugh, Gummow, Kirby and Hayne JJ; and see generally Pearce & Geddes [2.22].

61 After some reflection, I have reached the conclusion that Mr Robertson's submissions on this point are sound. My conclusion is that s 57 does lay down a special rule in relation to all restricted documents claims, save for those involving a Ministerial certificate which must first be dealt with by the Supreme Court. I have reached this conclusion having regard to other elements of the scheme of the FOI Act.

62 I note that clear rules are laid down by the Act in relation to the special procedures that agencies must follow when dealing with exempt documents that require consultation (Part 2 of Schedule 1): see ss 30-34; and persons required to be consulted may make a review application if they have concerns: see s 53(3)(b). These provisions point towards the likelihood that Parliament similarly intended special provisions to apply to the way in which documents said to be restricted documents are dealt with by agencies.

63 The interpretation adopted in Kennedy and the earlier cases gives rise to a state of affairs where s 57 operates only as a way of bringing on a `strike out' application. The review applicant could make such a submission (no prima facie case exists/ no reasonable grounds are shown) in the ordinary course of a review hearing. As that is the case, there is no useful role accorded to s 57. Section 57 would in effect be a redundant provision, except for the rare case when a review applicant makes a special s 57(1) application.

64 It is more likely in my view that Parliament would have intended that, in all cases where the claim is made, documents said to be restricted documents be handled carefully by reference to the procedural rules set down in s 57.

65 One benefit of this approach to the construction of s 57 is that it ensures that the Administering Minister has the status of a party in any proceedings where there is a restricted document claim, and may make submissions. Such a position makes sense where the restricted document in issue is a Cabinet document or an Executive Council document.

66 It is less obvious that this outcome makes sense where law enforcement document claims are made. Such claims, in contrast to Cabinet documents and Executive Council documents claims, are commonplace in FOI litigation from a wide range of agencies including local government agencies.

67 Accordingly I agree with the Administering Ministers two contentions, contention (a) and contention (b) as I have described them.

Does s 57 fetter the Tribunal's ordinary jurisdiction (Contention (c))?

68 As I see it, for the reasons given, section 57 operates as a precondition to jurisdiction in relation to the consideration of claims for restricted document status. But the question remains whether s 57 then fetters the ordinary jurisdiction of the Tribunal to ascertain the correct and preferable decision.

69 As noted earlier, Mr Robertson submits that the Tribunal's jurisdiction is ousted because s 57 stands as a `contrary provision' to the ordinary jurisdiction of the Tribunal to determine what was the correct and preferable decision in the circumstances.

70 It is not clear that s 57 constitutes a `contrary provision'. One would expect that a provision ousting or limiting the jurisdiction of the Tribunal would be expressed in clear terms, not found by implication. The FOI Act is an Act designed to promote openness in government and enable citizens to understand better the basis for government actions and decisions. It is often described as promoting the democratic objective. The substantial system for review of negative agency determinations reflects the concern that such determinations be sound. There are mechanisms for internal review, review by the Ombudsman and review by the Tribunal. In the case of review by the Ombudsman there is an express limitation on the power of that office to review Ministerial certificate cases. There is no limitation on its power of review in respect of non Ministerial certificate restricted document cases. These are all reasons for expecting that had the Parliament intended to deprive the Tribunal of its ordinary merits review powers in these cases, it would have said so expressly.

71 Mr Robertson relies on the Ministerial certificate cases, Hawker and the Commonwealth cases, to support his position. I agree with their conclusions as they relate to the kind of cases they were dealing with, ones of conclusive certificates.

72 As I see it, the reason that the external review body in the Ministerial (or `conclusive') certificate case does not proceed any further is that s 59 (in this jurisdiction, and the parallel provisions in the Commonwealth sphere) places an evidentiary bar on it proceeding any further. It is noteworthy in my view that s 59 does not refer to the jurisdiction of the Tribunal. (The first Government version of the 1989 FOI Bill used the term `evidentiary certificate' before replacing it in the second version with the term `Ministerial certificate': see Hansard, LA, 3163, 10 November 1988, Mr Moore, Minister for Environment.)

73 Obviously an evidentiary bar of the kind found in s 59 has the same effect as a direct ouster of jurisdiction. In cases where the review body for certificates (the Supreme Court in New South Wales, and the special bench of the Administrative Appeals Tribunal in the Commonwealth) finds reasonable grounds, there is nothing more that can practically be done as the evidentiary bar means that the inquiry is brought to an end. As a result any competing evidence can not be considered and the substantive merits of the claim is thereby determined.

74 In the instance of cases like the present - where a restricted documents exemption is invoked but no conclusive certificate has been issued (presumably because the Administering Minister was not consulted, or, if consulted, did not think it was a situation of such public or political importance that a certificate should issue) - the Parliament could have, but did not, make any provision as to the evidentiary effect of such a claim.

75 Section 59 does not impose any evidentiary bar on the Tribunal in cases where no certificate has been issued. There is no indirect jurisdictional limitation of this kind. Nor is there a direct jurisdictional limitation in that provision or elsewhere in the Act.

76 Accordingly, I consider that s 57 does not operate as a jurisdictional bar in the way suggested by the Administering Minister. In this important respect I agree with the earlier Tribunal decisions, though my reasons are different.

Public Interest Override

75 The Administering Minister also made submissions in this case on the vexed question of whether the Tribunal, in cases where it finds that an exemption is applicable, is entitled nonetheless to exercise the discretion given to agencies by s 25 of the FOI Act to disclose an exempt document. There is a line of decisions in the Tribunal to that effect, starting with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. There has been no instance in which the Tribunal, having affirmed an agency determination that a document is an exempt document, has acceded to a public interest submission from the review applicant that disclosure should be ordered.

76 I do not see this as an appropriate case in which to address this issue in detail as it is one that should ideally be dealt with at Appeal Panel level.

77 The previous Tribunal decisions attach considerable significance to the repeal of s 55(5) at the time of the 1998 amendments. Section 55(5) expressly prevented the District Court from ordering disclosure of an exempt document.

78 The question of whether the external review body should have a public interest override discretion was a central one in the policy debate giving rise to FOI laws in Australia. Victoria included an express override discretion in its Freedom of Information Act 1982 - s 50(4). An extensive jurisprudence has developed there as to the circumstances in which it may be appropriate for the review tribunal to apply the public interest override. I will not discuss that material at length here: see generally Kyrou and Pfizer, Victorian Administrative Law, para 2497.

79 In Re Just and the Department of Justice (1996) 10 VAR 126 at 129 the Victorian AAT observed: 'When s 50(4) speaks of 'the public interest' it refers to the benefit of the community in general not the benefit of any individual much less curiosity of any individual.' See further Re Pratt and Psychologists Registration Board of Victoria (unreptd, 28 April 1998, AAT, Judge Wood, President) where it was observed that the public interest meant the 'interest of the public as a whole as distinct from an individual member of the public'.

80 I draw attention to these observations for the purpose of emphasising that the Victorian tribunal has adopted a conservative test as to the circumstances in which it will consider submissions that the public interest override discretion be exercised. Similar caution should be adopted in this Tribunal pending further consideration of the question of whether the Mangoplah line of cases is correctly decided.

ORDER

1. The preliminary questions are determined as follows:

(a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable).

(b) As provided by s 57(6) the Administering Minister is entitled to participate as a party in respect of the review of a claim of the kind referrred to in Answer (a).

(c) If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.

2. The matter is to relisted for directions.

APPENDIX

[The appendix contains paras [18] to [47] of the reasons in Kennedy v Commissioner of Police, New South Wales Police Service [2001] NSWADT 39]