CATCHWORDS Administrative Law - Freedom of information - Whether documents exempet from disclosure under ss.43(1l)(c)(ii) and 45 - Meaning of "could reasonably be expected to prejudice the future supply of information" - whether disclosure would constitute a "breach of confidence" - degree of confidentiality required. Words and Phrases - "expect". Freedom of Information Act 1982, ss.43(1)(c) (ii) and 45. Re Actor's Equity Association of Australia and Australian Broadcasting Tribunal (1985) 3 A.A.R. 1 News Corporation Ltd. v. National Companies and Securities Commission (1984) 57 A.L.R. 550 Jason Kioa v. The Honourable Stewart John West (High Court, unreported, 18 December 1985) Ex parte White; In re White (1885) 14 9.B.D. 600 Re Witherford and Department of Foreiqn Affairs (1983) 5 A.L.D. Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No. 2) (1985) 59 A.L.J.R. 77 Franchi v. Franchi (1967) R.P.C. 149 Orr v. The State (1958) 111 So. 2d 627 ~ Crown Building Co. Limited v. Inland Revenue Commissioners [19461] 1 All E.R. 452 Western Natural Gas Co. v. Cities Natural Gas Co. (1966) 223 A. 2a 379 Koufos v. Czarnikow Limited £1967] 1 A.C. 350 ATTORNEY-GENERAL 'S DEPARTMENT AND AUSTRALIAN IRON AND STEEL PTY. LIMITED v. PETER COCKCROFT Bowen C.J., Sheppard and Beaumont JJ. 21 February 1986 Sydney IN THE FEDERAL COURT OF AUSTRALIA No. G260 of 1985 ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G274 of 1985 ) ) GENERAL DIVISION BETWEEN: ATTORNEY-GENERAL 'S DEPARTMEN First Applicant AUSTRALIAN IRON AND STEEL PTY. LIMITED Second Applicant AND: PETER COCKCROFT Respondent MINUTE OF ORDER JUDGES MAKING ORDER : Bowen C.J., Sheppard and Beaumont JJ. DATE PLACE 21 February 1986 Sydney THE COURT ORDERS THAT: (1) (2) (3) (4) NOTE The appeals be allowed. The decisions of the Administrative Appeals Tribunal be set aside. The matter be remitted to be heard and decided again, with the hearing of further evidence. Peter Cockcroft pay the costs of the Attorney-General's Department and Australian Iron and Steel Pty. Limited in these appeals. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) No. G274 of 1985 No. G260 of 1985 NEW SOUTH WALES DISTRICT REGISTRY weeny GENERAL DIVISION BETWEEN : Second Applicant AND: PETER COCKCROFT Respondent CORAM: Bowen, C.J., Sheppard and Beaumont JJ. DATED: 21 February 1986 REASONS FOR JUDGMENT Bowen, C.J. and Beaumont, J. These appeals from the Administrative Appeals Tribunal are brought pursuant to s.44 of the Administrative Appeals Tribunal Act, 1975 on a number of questions of law. The first applicant, the Department of the Attorney-General, and the second applicant, Australian Iron and Steel Pty. Limited ("A.I. & S."), challenge the decisions of the majority of the Administrative Appeals Tribunal, first, refusing to uphold claims by the applicants that certain documents and parts of certain other documents were exempt from disclosure for the purposes of Part IV of the Freedom of Information Act, 1982 ("the Act") and secondly, directing that access be granted to such documents. Exemption was claimed on two grounds. In respect of certain documents. s$.43(1))c)(ii) of the Act was relied upon by poth arplicants. It serovides: a2.:1L) 3 if its disclosure - ,c) infcrmation...concéerning the business, commercial or financial affairs of an organizaticn or undertaking, being information - (ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of alaw of the Commonwealth...cr the administration of matters administered by an agency." In respect of the remaining documents in question, A.I. & 3S. relied on s.45(1) of the Act: A document 45.(1) t 15 an exempt document if its disclosure under this Act would constitute a breach ot confidence." The claims for exemption arose in the following circumstances. In August 1980, the respondent, Mr. Feter fo tne New South Wales Committee on Discrimination in Employment and Jccupaticn ("the Committees") of wnat he alleged to be "political" discrimination in employment on the part of <A.t. & Ss The burden of Mr. Cockcroft's complaint was that A.I. & S. had refused to employ him at its Fort Kembla steelworks because he was an officer of the South Coast branch of In order to understand the respective contentions of the parties, some explanation of the constitution and administration cf the Committee is necessary. In June 1972 Australia ratified the Internaticnal Labour Organisation <.IL6 > in Discrimination (Employment and Occupaticni 1256. To implement the cbligaticons it assumed under the Con Sovernment established National and Discrimination in Employment and } functional objectives of the Committees are to promote equality of opportunity and treatment in employment and occupation and to receive, investigate and endeavour to resolve complaints alleging discrimination in employment and occupation. To enable the Committees to perform these functions, the Federal Farliament appropriates an annual alioestien of funds. These funds were originally administered by the Department of Employment and Industrial Relations, on the advice of the National Committees. Funding is now administered by the Attorney-General's Department. The National Committee consists of an independent Chairman/Convener and representatives of, inter alia, the Commonwealth Government, employer crganisations and trade unions. oO fay 2] aw v. tw ct OG Fy w4a4 it Tw p a 2. v 2) ct The State and Territory Committees Chairman/Convener, a Commonwealth Government representative the Regional Director of tne Department cr Employment and mtative each of the State or Territory o a wo Relations) and cne repr ay Sovernment, employer org nisations and trade unions. Fay +. The National Committee is serviced by officers located in the Central Office of the Department of Employment = and Industrial Relations and the State/Territory Committees by officers located within the Department's Reaicnal Offices. Th oO Department sf Employment and Industrial Felatisns, originally, and now the Attorneay-General's Department, has the functional responsibility of servicing the Committees on Discriminaticn in Employment and Occupation and allocates staff for this purpose. ii al Gale Since staff so provided have the respon y of maintaining ub control over the records and documents of the Committees, it is common ground that the Attorney-General's Department is the appropriate party to represent the Committee in these proceedings. As there is no Federal legislation providing for the establishment of the Committees, they have no power to compel complainants and respondents to appear before them or tog o H evidence. In most cases, the Executive Officer conducts th oO investigation of a complaint, inviting the parties to submit written evidence or attend for interviews. The Committees do not conduct public hearings and donot direct their activities to publicly identifying cases of discrimination or uw (wD ortisoning je i re) S| blame between complainants and respondents. They endeavour to conciliate between the parties with a view to arriving at a resolution of the complaint which is, wherever rossible, satisfactory to both parties. in In the field of discrimination, complainants may take legal action pursuant to State cr Federal legislation. However, complainants who resort to the Committees enjoy the advantage of Privacy and a similar advantaq2 is available to respondents. In a document entitled Frocedural Guidelinss for Committess on Discrimination in Emplovment and Occupaticn (published in i983) the following quidelins paraqraph appears: "4.13 Lacking Statutory powers to comeel information, the Committees must rely on co-operation. The guarantee cr strict confidentiality is the best way to encourage complainants, respondents and interested parties to provide information for a Committee's investigation." To revert to the history of the matter, in August and September 1980, the Committee sought the views of A.I. & 5. on Mr. Cockcroft's complaint. A.I. & S. responded by letter dated 10 September 1980 as follows: "...This Company has dacided no employment to Mr. Cockcrort. Mr. Co never been emploved by this Comp understand that Mr. Cockcroft arrived in Australia from Britain about five years ago; that in Britain he worked as a welfare offic teacher and a student. union official at a University and that in Australia he has been employed in a warehouse and handicraft shop and in a bookshop. ,Our understanding as to the above comes from reports in "Tribune - Australia's Communist Weekly"). We aiso note From a newsparer item we refer to later that Mr. Cockcroft is said to have been emploved by the NSW Government Railways. We are, of course, aware that Mr. Cockcroft is the South Coast District Zecretary or the Communist Farty of Australia, but we do not know whether this is a paid or an honcrary position. re} Mr. Cockcroft's application for employment with this Company has been the subject or some media publicity - see, for instance, the ""Iilawarra Mercury" item of 6 August 1980 headed "AIS accused of Bias - Commo Leader Refused a Job" Having would li taken that Mr. C 3 with this Company is a qanuine apr this aspect we would like to know i Cockcroft has sought employment zoe) Company only or with other employers as well. If his application has been to this Company only, why is this so? If he has applied te other employers, have his applications been rejected, and, if so, has Mr. Cockcrort mads complaints to your Committee in respect to these rejections? (We are not seeking the names of such other employers but would like to know how many, if any, there were.) We should mention that, as Mr. Cockcroft's complaint refers to the Federated Ironworkers' Association, we have sent a copy of your letter ef 18 August and a copy of this reply to the State Secretary ef that union." (Emphasis added). On 18 September 1980, A.I. & Ss. provided the Commonwealth Minister for Industrial Relations at the time, Mr. Street, with three documents which were claimed to be exempt under the Act. Objection was taken by counsel for Mr. Cockcrcit to our inspecting any of the documents for which exemption was claimed. However, the three documents handed cto Mr. Street are described as follows in a. schedule prapared ir el: Attorney-General' s [epartment tor the Purposes of Proceedings: "3G2' Copy - AIS document handed to Mr. Street - 1? September 1380 - brief statement of reason for refusing employment." - AIS document handed to Mr. Street September 1980 - contains background ial relied on by AIS in refusing yment." tow qQ?) te fos) Yoct pew FO wi ons 1c} rm emer AIS document handed to Mr. §& September 1980 - chronolog cexcroft's employment application." \Exemption was claimed under both s.43(l)ici(ii) and 3.45(1) for each cF these documents). Copies of these documents were forwarded by Mr. Street to Mr. Viner, then Commonwealth Minister 'for Employment and Industrial Relations, under cover of a letter dated 16 October 1980: "CDuring my] visit to Port Kembla Io was approached by the General Manager of Australian Iron and Steel, CMr. HalljJ, regarding a problem with an application for employment of a Mr P Cockcrort which has been brought to the attention of the New South Wales Committee on Discrimination Cin Employment] and Occupation. Mr. Hall that as the matter was within responsibility I would bring it to antion. I am forwarding copies of backaround information Ci.e. "AG9", ""AG1O" and "AGI1L"4 would appreciate any advice that you may be a to offer." oO Try ty w SD ctw waome op By letter dated 3 November 12380, the Committee informed A.I. & 3S. that Mr. Cockcroft had advised it that he was registered with the Commonwealth Employment Service at Wollcengong and that he nai been referred to a number of prospective employers. Ey istt2r dated 12 November 1980, the Committee asked A.I. & S. to vesnoni to Mr. Cockcroft's complaint. On 1 December 1980, A.I. & 2. wrote to the Committee: " t, it does not appear to us that your 2 November 1980 answers the matte us in the extract quoted from our 10 September. a In carticular, your letter of 3 November doe not indicate:- ,a) Whether the Committee is satisfied that Mr. Cacnorert's application for employment with Company is a genuine application; Lb) Wnether Mr. Cockcroft has sought employment with the "various employers" to which he has been referred by the Commonwealth Employment Service at Wollongong; (c) If Mr. Cockcroft has sought employment with such employers, the result of such applications; (d) If any application has been rejected, whether Mr. Cockcroft has made a complaint to your Committee in respect of such rejection; (e) How many employers, if any, Mr. Cockcroft has sought employment with. us that the above points are ones of ance in considering whether cr not Mr application for employment with this genuine and, accordingly, we await vr advices." Rwuudao Ey letter dated 15 December 1280, the Committee informed Mr. Cockcroft that a meeting was to be held on 3 January 1981 between a representative of the Committee and Mr. Hall as General Manager of 4.1. & S$. The evidence before the Tribunal was that at the meeting Hr. &.J. Hodgett, repressnting the Vommittese. informed Mr. Halli that "any documentation that you supply to the New South Nalet Tommittee reaardiess of its content would he By letter dated 19 January 1981, the Committee's executive officer pressed A.I. & 5S. for a response to aie Tocuerort's complaint. He invited A.I. ther pertinent factors, opinions as a member relia WALeR could Rave led your com oO n (a ct Bp. s w s an employee." The ex @ would fags on any information thus supplied to the members of On 20 February 1981, A.I. & S. wrote to the Committee. Exemption was also claimed under both s5.43(1)(c)(ii) and 3.45(1) in respect of this document, which is described in the Attorney-General's Department schedule in these terms: "*3G3' Original - letter and attachments - 20 February 1981 - AIS to NSW CDEO detailing if n for refusing employment or Cc r ea 3 Cos ert." u a0 w \ t The Committee met on 21 February 193981 and considered Mr. Cockeroert's complaint. It formed the opinion that no to Mr. Coekcrett and A.T. & S$. by letters dated =? rsepruary 1o3l. 4 claim for exemption was made under s.42(l)(c)(ii: in respect of the relevant part of the minutes of this m scr The following deseription appears in the Attornev-General's Department schedule: 10. "*AG18' Copy - extract of minutes of 67th meeting of NSW CDEO - 21 February 1981 - records complaint and summarises AIS position." Claims for exemption were also made under 5.43(1)(c) (il) in respect cf porticns of the time. They are is 2S ftcllows in the Attorney-Seneral's Department schedule "'3G6' File note - 15 December 1250 - Assistant Secretary, External Programmes Branch - containing deleted exempt matter concerning the position of AIS in relation to employment of Cockcroft." ""AG7' File note - 9 January 1981 - Assistant Secretary, External Programmes franch -- containing deleted exempt matter concerning the position of AIS in relation to employment of Cockcroft." "*AGB' Minute - Assistant Secretary, External Programmes Branch to Mr. Jefferies - 13 January 1981 - containing deleted exempt matter outlining the position of AIS in relation to employment of Cockcrsore." By letter dated 14 August 1981, the Committee wrote to Aol. & S. After referring to its earlier finding that no oO discrimination had occurred, the Committee said: ".,.The procedure normally adopted by Discrimination Committee is to commu the complainant, where appropriate, substance of the reply to the allegati ferson complained against. Th Committee did not, however, sup with the substance of your rep 1381. Ci.e. ""AG3"I Mr. subsequently approached th Committes seeking the reasons not employing him. Would you please vise m2 as s500N as pos le a8 to whether you have any objections to -— ext of your letter of 20 February being made available to Mr. Cockcroft." In its reply dat 8 September 1981, A.I. & S. seal CU is mot a case w appropriate a disclosure. A of our earlier discussions with office organisation we were advised that th of our response to Mr Tockcroft's a would remain confidential between ou and your organisation. We expected that the issue relating ts Mr Cockcroft would have ended when the Employment Discrimination Committee concluded in February 1981 that no Mr Cockcroft's the issue has been taken bas However, is of since then, discrimination had occurred on the political convictions. up further by the NSW Anti-Discrimination Board and the relevant correspondence involving this Board Was on iss In we of to This Committee Department in respect "*AG19' ""32G26' sent 16 July 1981. ue. to your organisation via Mr J Spencer Now, Privacy Committee, has the NSW in the a third body, become involved all the circumstances as they presently exist are of the view that the text of our letter 20 February 1981 should not be made available Mr Cockcroft." =} f question wa at least on schedule claims the followina: Criginal - National CDEO - procedures for and release Committee." agend SDEO rning com for ac mea wa noo wa cy two occasions. exemption by virtue of agenda item or or information plaint. ed wi iD apparently, discus The 3.43( i) te DQ Pe) sl > ry ct maas oo 22 July 1398 investigating = bes 'tp Bement So0a0aa MT AO ct wor acta o he OQ hy ct fe)iat H - OL and NSW 8lst meeting November 1382 AIS position documents Ey item of cess to Committees." py fn (U} Attorney-General or We will deal first witn the claims for exemption made under 5.43(1)(c) (ii). A considerable body of evidence was tendered to the Tribunal by the applicants in support of these claims for exemption. Tos om2 extent. the ub with evidence adduced in support of claims 5.45(1) made by A.I. & S. In his avidence. Mr. Imith, a =sniocr Industrial Relations adviser to the Confederation of Industry and an alternate member of rollowing opinion: "Have you formed any conclusions as to the significance of the ability of the committee to elicit information from employers as part of its operations?---Well, the committee, being one of a conciliatory role and one which was established ona tripartite basis so that you could enlist the expertise of trade unions and employers and government, could not effectively operate unless it had the goodwill and trust of the people with which it deals. The committees deal in the very difficult area of employment discrimination and what we try and do is ensure that parties can work happily together and in that way it requires a great deal of skill on the part cf the conciliators to bring about the resolution of a complaint that can be ongcing. We seek to change attitudes in relation to discrimination; we do not want to overtly modify behaviour, we want to get to the roo cause and seek to change attitudes." He also explained how, in his view, confidentiality w tn ra important to those who approached the Committee: "There are other agencies in the various states and often people would prefer to goto the legislative agency. But we still get a lot of customers, if I could call them that. that because of the nature in which our committe deals with matters, that it 1s in confidence, igs no public airing of the complaints and we resolve issues between the parties." Mr. Hodgett, a Special Projects Officer of the Department of Employment and Industrial Relations, gave evidence of a conversation he had at the meeting with senior executives of A.I. & &S., including Mr. Hal i on 9 January 1281: iS . re o a fal » "Can you remember what Mr. Hall question from you?---That - Mr. Hall said - that the content of some of this material was of such anature that if it became public it could be regarded as defamatory and he or his company were loath to pass it on to the committee in view of what could conceivably happen. I then said to him that 'Any documentation that you supply to the New South Wales committee regardless of its content would be treated on a confidential basis'." said to that However, in holding that no exemption under 3.43(1)(c)(ii) had been made out, particular reliance was placed by the majority of the Tribunal upon the following evidence of Mr. Thirlwell, the Personnel Officer of A.I. & 8.2 "MR McMAHON: Mr. Thirlwell, these proceedings have been pending for some time now?---Yes. Have they had any effect at all on the company's response for information from any agency of the Commonwealth?---No. Quite deliberately I discussed this situation with the personnel officers who receive alot of the particular requests for information that I referred to back in evidence last August, to ensure that in the interim period nothing like that should in fact take place. And in the interim period which, been for some years now - - -?---Ye Are you telling us that no chang= nas been made in the company's procedures rc responding to requests, for example, from CES or Social Security?---Certainly not from AIS Port Kembla, no. In fact - - - oy mg a It has been as frank in dealing with the departments in that interim period as you have been prior to the institution of these proceedings?---I would certainly like to think so but, taking it further than that, I havea number of discussions with the senior officers, for example, of the Wollongong branch of the CES and I believe if they were finding any difficulty in obtaining info tion they would have ample opportunity of raising it with me, and they have not done so. Rather, I took the point of confirming with my subordinates that we should try and be of as much assistance as we can, without formalizing the situation. You have not issued any instructions to your staff about heading letters "confidential" or "private"? ---No, but I would have to stress to you far and away the bulk of contact that I am talking about is of a verbal nature rather than finding its way into correspondence; and I would also have to say to you that having regard to the state of employment, for example, in the Wollongong area in the last four years the level of contact, say, from the CES to the steel works about employees and the like has been drastically reduced over that period from what it was in 1979/80 when there were many many more people not simply seeking employment but gaining sts But you receive lots of written requests, do you not, from government agencies?---Quite, quite. And you respond to those in writing?---Yes, we do, we do, but the main ones that I was looking at here in terms of this was my practical experience in the personnel department, which of course was largely perhaps Social Security and CES, things of that nature - but also these days in terms of the Federal government, involving the Steel Industry Authority and groups like that. Have you been asked for any information by the New South Wales committee on what is referred to as CDEO?---Equal opportunity, that is the equal opportunity side? Yes?---Well, we have hada rather contentious 1ssue on it at the moment in terms of the New South Wales jurisdiction itself, but I am not aware of anv other request from the New South Wales committee to AIS than in what I call the Cockcroft case." The majority of the Tribunal held that the "overwhelming" conclusion to be drawn from this evidence was that disclosure of the documents or the threat of such disclosure has had and will have no effect on the supply of the information in question: "The past in this case must be an infallible guide to the future. There could hardly be stronger evidence for guidance as to what could 'reasonably be expected' to hapren. Earlier, the majority had expressed the test to be applied in order to activate the operation of s.43(1)(c)(ii) as follows: "The next question to be asked is whether the disclosure of the information could reasonably be expected to produce certain consequences. This does not mean-that those consequences must be regarded as reasonable from a public interest point of view. It means whether it is more probable than not, looked at from an objective point of view, that the consequences will flow. This approach was broadly adopted by the Tribunal in Be Actors' Equity Association of Australia and Australian Broadcasting Tribunal (1985) 3 A.A.R. 1." It was submitted on behalf of the applicants that the majority of the Tribunal erred both in the construction of s.43(1)(c)(ii) and in the failure to hold that provisicn to he applicable in the present circumstances. In aid of the submission, reference was made to some observations of Woodward, J. as to the meaning of a similar provision, s.37(1) of the Act, in News Corporation Ltd. v. Jational Companies and Securities Commission (1984) 57 A.L.R. 550 at pp.561-2: 16. "IT think that the words 'would. or could reasonably be expected to...prejudice' mean more than 'would or might prejudice'. A reasonable expectation of an event requires more thana possibility, risk or chance of the event occurring. on the other hand, if the legislature had required a probability of prejudice it could easily have said so. [In my view it is reasonable to expect an occur if there is about an even chan happening and, without attempting ¢t words alternative to those chosen draftsman, it is in that general senss phrase should be read." 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 $.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific decrees 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 expectaticn claimed was reasonably based (see Jason Kioa v. The Honourable stewart John West, High Court, unreported, 18 December 1985 per Mason, J. at p.36; see also per Gibbs, C.J. at p.12). The majority of the Tribunal thought that an assessment cr what was more probable than than not was called for. As HMocdward, J. has pointed out, there are difficulties in this approach for the lsqislature has chosen not to introduce the notion of a "probable" result (cf. Ex marte White; In re White consider 4 Q.£.D. 600). It 25 ais6 n "aven chance" or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s.43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision. Further, in our view, the majority of the Tribunal fell into error in the significance it sought to attribute to the conduct of A.I. & 5S. in its dealings with the Committee during the pendency of the proceedings for review. The Committee, having indicated to A.I. & S. that it proposed to decline to disclose the documents to which access was claimed, no inference of the kind drawn by the majority was open. Asls & was tn entitled to assume that, if it continued to provide information or the kind now in question, the Committees would decline to disclose it. That being so, it was wrong for the majority to use bay the evidence of Mr. Thirlwell to ground the inference sought to 18. be drawn that A.I. & S. would continue to co-operate with the Committee in the future if the material now in dispute were disclosed to Mr. Cockcroft. In the result, we would allow the appeal so far as concerns the exemptions claimed under =.43(1)(c)(ii). The cuezetion arises as to what other orders should now be made in shis connection. Not having seen the documents in question we cannot attempt a judgment of the kind called for by 3.43(10(c) (il). It must follow that we would order that this part of the case be remitted to the Tribunal to be heard and decided again with the hearing of further evidence. There remain the claims for exemption based on s.45(1). As has been said, these claims, made only by A.I. & S.,were pursued in respect of the following documents: """AG3' Original - letter and attachments - 20 February 1981 - AIS to NSW CDEO detailing reasons for refusing employment of Cockcroft." ""AG9' Copy - AIS document handed to Mr Street - 1? September 1980 - brief statement of reason for refusing employment." "*"BG1O' Copy - AIS document handed to Mr Street - 13 September 1980 - contains background material relied on by AIS in refusing employment." "TAGL1' Copy - AIS document handed to Mr l? September 1380 ~- ¢ehr Cockcroft's employment applic wo ct The majority of the Tribunal, in holding that no case had been made out under s.45, acknowledged that the provision t- w was wide enough to afford protection from disclosure in circumstances where an action for breach of confidence may not succeed (see Re Witherford and Department of Foreian Affairs (1983) 5 A.L.D. 534 at p.542; and as to the general jurisdiction to orant relief against abuse cr cs information independently of other causes of acticn, see Mcorgats Tobacco Co. Ltd. v. Philip Morriz Ltd. (No. 2) 11995) 59 2.L.ULE 77 at p.85; Kearney, The Action for Breach of Confidence in Australia, at p.dl). However, the majority was much impressed with the fact that A.I. & S. sent a copy of its letter dated 10 September 1980 to the Federated Ironworkers' Association. It was thought that "this set the tone for subsequent correspondence, Minutes and interviews." The majority of the Tribunal was also much influenced by the fact that information was given by A.I. & S. to Mr. Street in the knowledge that he would pass it on to Mr. Viner. The majority concluded that these circumstances deprived the communications from A.I. & S. in question of the degree of secrecy required to justify the protection of 5.45(1). In our opinion, the majority of the Tribunal fell into error in holding that the conduct of A.I. & S. in forwarding a fu aM copy of its letter dated 10 September 1980 to the Federat Ironworkers' Association was capable cf characterising the subsequent dealings between the parties as lacking the necessary quality of confidence. The fact that. in one particular instance, A.I. & 5. intended that the Union be made aware of the contents of its communication to the Committee cannot be Os determinative of the character of the subsequent dealings between A.I. & S. and the Committee in terms of their confidentiality or otherwise. The subsequent dealings must be assessed in their own context. The passage emphasised in the letter of 10 September 1980, a matter raised again by 3.121. & S. in its letcer dated 1 December 1980, shows that its concern at that stage was to resolve what it saw to be a preliminary question Cockcroft's application for employment was genuine, as it said in the emphasised passage, "before the matter is taken further." The correspondence indicated that A.I. & S. saw its dealings with the Committee as proceeding or possibly proceeding in a number of stages. It does not necessarily follow from that fact that A.I. & S. was prepared to make the Union aware of its query ona preliminary aspect of the matter that A.I. & S. was prepared to waive any confidentiality it might wish to protect in its communications with the Committee on the merits of the matter. That may well have involved very different considerations. Further, in our view, the majority of the Tribunal erred in thinking that the intention of A.I. & S. that the contents of their communication to Mr. Street would be transmitted to Mr. Viner destroyed any confidentiality which might ctherwise have attached to the information thus conveyed. Information may remain confidential in such circumstances: "The law does not require information to be absolutely inaccessible before it can be characterised as confidential...Publication of information to a limited number of persons will not destroy the confidential nature of information" (Gurry. Breach of Confidence, at p.72). In Franchi v. Franchi, (1967) R.P.C. 149. Cross, J. said (at pp.dh2=2)¢% 'Clearly 3 claim that the disclesur 12 informaticn would be a breach cf 'con s not to bs defeated simply by proving Be are other people in the world who kno oe in question besides the man as to is said that his disclosure would be a of confidence and those to whom he has ed tt, e2n emits ¥ + It must be a question of deqree depending on the particular case, but if relative secrecy remains, the plaintiff can still succeed." It follows, in our opinion, that the majority of the Tribunal fell into error in assuming that because Mr. Street would pass on to Mr. Viner the information in the documents "AGO", ""AG1O" and ""AG11" the claim for their confidentiality was destroyed. It is true that no assertion of cenfidentiality of the material now in question was made on behalf of the Attorney-General's Department. However, it was clearly open to the party with the primary interest in maintaining Ww a.I. op @ fea) 0) its alleged sécrecy, to seek to uphold a claim tor exemption on this ground. We would allow the appeal in respect of under $.45(1). The question arises as to what further orders should be made in this connection. Whether the ty to Q c ra) a) cr p- ie) o QO ry estion attracted confidentiality is principally a fact. The preferable course is to remit this part of the case to che Tribunal to be heard again, with the hearing of further Mr. Cockcroft must pay the costs of the apreals. applies, he should be granted a costs certificate in resect rf or p> oO bas i) [oy iD rs ey — he appeals pursuant to s.6(1) of We would make the following orders: 1. Appeals allowed. as Set aside the decisions of the Administrative Appeals Tribunal. Se Remit the matter to be heard and decided again, with the hearing of further evidence. q, Order. that the respondent pay the costs of the applicants of the appeals. certified that this and the ing twenty-one (21) preceding ges are a true copy of the Reasons r Judgment herein of their Honours the Chief Judge, Sir Nigel Bowen, and Mr Justice Beaumont. TS ta O MN ot wo Of on Qu tho Associate: ou wlliawn Date: 21 February 1986 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G274 of 1985 ) No. G260 of 1985 } GENERAL DIVISION BETWEEN : ATTORNEY-GENERAL 'S DEPARTMENT First Applicant AUSTRALIAN IRON AND STEEL PTY LIMITED Second Applicant AND: PETER COCKCROFT Respondent Bowen C.J., Sheppard and Beaumont JJ. a fs) fee] Pe i 21 February 1986 REASONS FOR JUDGMENT SHEPPARD J.: In this matter I have had the advantage of reading the judgment to be delivered by Bowen C.J. and Beaumont J. I agree in their conclusions and with the orders they propose. So far as the case made by the applicant, Australian [ron and Steel Pty Limited, based on s. 45 of the Freedom of Information Act 1982 ("the Act") is concerned, I agree in the reasons expressed by the other members of the Court and have nothing to add. In relation to the case made by both applicants based on the provisions of s. 43 of the Act I wish to state my own reasons for 2s concluding that the appeal should be allowed. In mv opinion the onlv question of law which arises for determination is the meaning and effect of the words "could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency ..."; sub-para. 43(l)(c)(ii) of the Act. The difficulty is to state the deares of certainty which is required before it can be said that the document in question will be an exempt document for the purposes of the section. The application of the words to a given case will usually involve an exercise of jiudament and not give rise toa a question of law. In most cases no appeal from a decision of the Administrative Appeals Tribunal will lie to this Court. But in the ereuanh case the applicants challenge the meaning given the words by the Tribunal. Essentially its conclusion was that documents are not exempt unless their disclosure will "more probabl€vJ than not, looked at from an obiective point of view", prejudice the future supply of information to the Commonwealth or one of its agencies. References to Roget's Thesaurus and the Macquarie Thesaurus and to dictionary definitions of the word "expect" disclose that it has various shades of meaning. For instance, the Shorter Oxford Enqlish Dictionary defines it to mean:- Le To wait. 2. To wait for, await. 3. 3. To look for mentally; to look forward, regard as about to happen: to anticipate the occurrence or the coming of. 4(a) With "can" to look for with likelihood. (b) To look for as due from another. 5. To suppose, surmise that. The Oxford English Dictionarv itself defines the word "expected" to mean looked for or anticipated. The Macquarie Dictionary defines the word "expect" to mean, inter alia, to look forward to. to reaard as likely to happen. to anticipate thes occurrence or the coming of in the sense of "I expect to do it, I expect him to come", to look for with reason or justification or to surmise or suppose. The second edition of Webster's Dictionary savs of the words "expect", "anticipate" and "hope", that they agree in reaqarding some future event as about to take place. .Of these "expect" ia sald to be the strondest and implies some qround or reason in the mind for construing the event as likely to happen. It was after referring to this statement in Webster that the Court of Appeals of the State of Alabama in Orr vw. The State (1958) 111 So. 2d 627 said (p. 635) that Nelson's order of the dav at Trafalaar, "England expects every man to do his duty", would have been "reduced to pusillanimous pap" had the Admiral said, "England hopes ..." The word "expect" has been the subject of judicial attention in a variety of contexts both in the United Kinadom and the United States. In the United States the expression "reasonably } expected" has been discussed on a number of occasions. Much depends on the context in which the word is used. In Crown Bedding Co Limited v. Inland Revenue Commissioners C1946] 1 All E.R. 452 the Court of Appeal was concerned with a provision of the Finance Act 1944 (U.K.) which used the axpression, "the main benefit which might have been expected to accrue from the transaction or transactions during the currency of excess profits tax". Lord Greene M.R. said (pp. 456-7):- "Counsel for the appellants attacks that finding by aqoing straight to the construction of the section, and he savs that under the section it is not open to the Special Commissioners to find that the main benefit which might be expected to accrue was avoidance or reduction of tax where avoidance or reduction of bax was not a probability but only a possibilitv... the qround being that in: order to bring the section into operation there must be expectation of a benefit by way of avoidance or reduction of tax in the sense that a reasonable man would expect such avoidance or reduction to accrue. not that he would think that it miaht, in certain unlikelv events, accrue but that it would, in fact, in his apinion, be likely to accrue. In my opinion, that is much t00 narrow a construction to put upon these words. After all, the question of probability or possibility is a matter really which can be considered as resembling a scale. At the top of the scale is certainty. At the bottom of the scale is improbability so extreme that no sensible person would ever take it into account. But, subiect to that, the precise point on the scale at which vou can say that a thing is probable rather than possible and the precise point at which you sav that a probability falls to the level of a mere possibilitv depends on the view taken by a hypothetical observer. It seems to me that it is quite impossible to put on the word 'expected' Ehe sense that a hvpothetical observer must have had that dearee of confidence in the future as to. 5. expect that the benefit would materialise." It is to be observed that the expression in question was "might have been expected". The expression with which we are concerned in s. 43 of the Act is "could reasonably be expected." The word "expectation" is defined im the Corpus Juris Secundum, Vol. 35, p. 230 as being the act or state of waiting or awaiting with confident anticipation. An "expectation" is said to be more than a bare hope: it is said to imply a high dearee of certainty that a future avent will occur. That meaning was applied in Western Natural Gas Co. v. Cities Natural Gas Co. (1966) 223 A. 2d 379 at p. 383. The word "expect" was there used in a contractual, not a statutory context. In the end the problem we have involves us in construing the relevant provision in the Act in its context. I agree that it is unwise to endeavour to analyze a provision of this kind overmuch and that there are dangers in attempting to gloss ordinary English words. On the other hand, it is necessary to have an appreciation of what the words usually mean in every dav language. I think it is clear that a higher degree of certainty is involved in the exercise than would be the case if the words used were, for instance, "a risk" of prejudice. But how much more certain must one be that prejudice might be the result of disclosure before one can sav that it "could reasonably he expected"? The question is whether the Tribunal's tash of 4. disclosure more probably than not prejudicing the future supply of information is too strict. I think the better view is that it is but I have not found the problem without difficulty and TI think that in resolving it, it should be remembered that the provision is contained in an Act which was intended to make available to members of the public a great deal of material which might otherwise have been reqarded as confidential. We ought not be too ready to afford exemption unless the words of the statute are clear. The difficulty of ascribing a meaning £9 the word has not onlv broubled me. Ik appears to have troubled other judges including Lord Greene M.R. in the Crown Bedding case and also Woodward J. in News Corporation Limited v. National Companies and Securities Commission (1984) 57 A.L.R. 550 who said (pep. 561-2) that a reasonable expectation of an event required more than a possibility, risk or chance of the event occurring. So much is, I think, clear. But the problem he then faced, as do we, was to endeavour to indicate the deaqree of certainty that is required before the relevant. event "could reasonably be expected". He said that it was reasonable to expect an event to oecur if there were about an even chance of its happening and, by inference, not unless that were so. In my respectful opinion that statement goes too far and restricts the meaning of the provision in a wav which was not intended. I would prefer the less certain. albeit somewhat negative. approach adopted by Lord freene M.R. in the Crown Bedding case (supra). Tk is true that 7. the word was there used in conjunction with the word "might". But I do not believe that the word "could" which is the word used here is used in any different context. In the course of my consideration of the matter I have considered whether or not the words in question do import, at least toa <dearee, the notion of likelihood or probability. Although at one stage [ thought this was not the correct approach, a consideration of the dictionary definitions, to some of which I have referred, and, of what has been said in a number t led mé to the canelusion Lhat some aspects of Dp fo a of authorities, the concept of probability or likelihood, but short of a preponderance of probabilities, are imported. Tnless thev are, it is impossible to come to terms with the degree of certainty which the section requires before a document will be exempt from production, I think, however, that one has to be careful that one does not transfer the problem into another universe of discourse and move too far awav from the words which the legislature has chosen to use; cf. Koufos v. Czarnikow Limited C1969 1 A.C. 350, per Lord Reid at p. 390. wv I do not myself feel able 9 derive from the presence of the word "reasonably" in fhe relevant expression a great deal of assistance. The difficulty is to give full weight to the meaning of the word "expected". It is only then that one can turn one's mind to the question of the siqnificance of the qualification of sed in the m it by the word "reasonably". The words are expre a. passive voice - "could reasonably be expected". What is required is that the decision-maker act reasonabl '< . For the document fa be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the decument could prejudice the future supply of informaticn In my opinion he will moh be fustified in claiming exemption unless, at the time the decision is made. he has real and substantial grounds for thinking that the production of the document could prejudice that supoly. But, stringent though that test mav be, it does not do so far as te require the decision-maker to be satisfied upen a balance of probabilities that the production of the document will in fact prefudice the future supply of information. T said earlier that, in my opinion, there was only one question of law which arose for decision in connection with the claim for exemption based on s. 43, That question was whether the Tribunal erred in the statement of principle which it made in connection -with the application of the provision to the facts p before it, For reasons which I have given, I ave reached the conclusion that it did fall into error. But if I had not. I EA would not have felt able toa disturb its findings otherwise. Tf its statement of principle were correct, its other findings, being findings of fact. would not have been open to review by | certify that this andthe 7 — preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. Aon BB hincms i, . Associate Dated 21 FE8RUA ay 1986 this Court.