rcp * t AAG . _ CATCHWORDS . , J Freedom of Information - powers of Administrative Appeals Tribunal - review under s.59 of a decision that a document is not exempt under s.43 ~ whether Tribunal can decide if the document is exempt under provisions of Part IV of the Act other than 3.43. Administrative Appeals Tribunal Act 1975 3.45 Freedom of Information Act 1982 ss.1l, 14, 15, 18, 27, 37, 43, 45, 46, 54, 55, 58, 59. ! MI SHI_ MOTORS AUSTRAL IMITED v DEPARTMENT. OF TRANSPORT & NO. G45 of 1986. BOWEN C.J., BEAUMONT & WILCOX JJ. SYDNEY 2\ OCTOBER 1986. FEDERAL COURT OF AUSTRALIA town 4 IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No. G45 of 1986 GENERAL DIVISION ) ON A REFERENCE OF A QUESTION OF LAW FROM THE ADMINISTRATIVE APPEALS TRIBUNAL (GENERAL ADMINISTRATIVE DIVISION) IN MATTER NO. S85/66 CORAM: PLACE: DATE: BETWEEN: MITSUBISHI MOTORS AUSTRALIA LIMITED Applicant AND: DEPARTMENT. OF TRANSPORT RESPONDENT AND: GRAHAM JOHN PAYNE and JENNIFER ANN PAYNE Parties Joined ' Bowen, C.J., Beaumont and Wilcox Jv. t Sydney z\ October 1986. MINUTE OF ORDER THE COURT ORDERS THAT: 1. The answer to the following question of law arising in the proceedings before the Administrative Appeals Tribunal which was referred under s.45 of the Administrative Appeals Tribunal Act 1975 is as stated below: QUESTION Whether the Administrative Appeals Tribunal, when reviewing the respondent's decision, pursuant to 3.59 of the Freedom of Information Act 1982, that a document in so far as it contains certain information, is not an ten 7 2. a exempt document under s.43 of the Act, is, as a matter of law, iobliged or, alternatively, empowered to decide whether 'the document is an exempt document under that, or any other, provision of Part IV of the Act. ANSWER : (a) As Freedom of Information Act - Yes; (Db) As to a claim for exemption under any provision of Part IV: of the Freedom of Information Act other than 3.43 - No. Vl Mitsubishi Motors Australia Limited pay to the Department of Transport, Graham John Payne and Jennifer Ann Payne their costs of the reference. Settlement and entry of 'orders is dealt with in Order 36 of the' ederal Court Rules. to a claim for exemption under s.43 of the. . s ' *, 2k bet kt ne ate eh et ay ter THE COURT OF AUSTRALIA ) ) SQUTH AUSTRALIAN DISTRICT REGISTRY ) No. G45 of 1986 ) ENERAL SION ) ON A REFERENCE OF A QUESTION OF LAW FROM THE ADMINISTRATIVE APPEALS TRIBUNAL (GENERAL ADMINISTRATIVE DIVISION) IN MATTER NO. $85/66 BETWEEN : MITSUBISHI MOTORS AUSTRALIA LIMITED _ Applicant AND: OF TRANSPORT Respondent AND: JOHN P AND JENNIFER ANN PAYNE ' Parties Joined Bowen, C.J., Beaumont and Wilcox JJ. 2m October 1986 REASONS FOR JUDGMENT THE COURT: In the course of proceedings before the Administrative Appeals Tribunal ("the Tribunal") a question of law has arisen as to the jurisdiction of the Tribunal. The question has been referred to the Court for decision pursuant to 3.45 of the Administrative Appeals Tribunal Act 1975. In the proceedings before it, the Tribunal is asked to exercise its jurisdiction to review a decision made under the Freedom of Information Act 1982 ("the Act"). In order to nv 2. understand the question of law which has arisen, it is necessary ! to describe the relevant legislative scheme. Access to documents is dealt with by Part III of the Act. Subject tothe, Act, every person has a legally enforceable right to obtain access in accordance with the Act to (a) a document of an ency (i.e. a Department ora prescribed authority), other than an exempt document; or (b) an official document of a Minister, t other than an exempt document (s.11). 'Nothing in the het is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt' | documents), otherwise than as required by the Act, where they can properly do so (3.14). A person who wishes to obtain access toa ' I document of an agency or an official document of a Minister may' make a request in writing ta the agency or Minister for acc the document (s.15(1). A request shall provide such information concerning the document as is reasonably necessary to e Le it to be identified (s.15(2)). Subject ta the Act, where a raquest is made in accordance with s.15(2) and certain other conditions not presently relevant are satisfied, the person making the f request shall be given access to the document in accordance with the Act (s.18(1)). ' Exempt documents are dealt with by Part IV of the Act. For instance, a document is exempt if its disclosure under the Act would, or could reasonably be expected, to prejudite the impartial adjudication of a particular case (3.37(2)(a))4 x document is exempt if its disclosure under the Act would disclose | 3. | information concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information (i) the disclosure. of which would, or could reasonably be expected tor unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or (ii) the disclosure of which under the 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 a law of the Commonwealth or of a Territory or the administration of matters administered by an agency (s.43(1)(c)). A document is exempt if its disclosure under the Act would constitute a breach of confidence (s.45) or if its public disclosure would, apart from the Act and any immunity of the Crown, be in contempt of Court (3.46(a)). There are other grounds for exemption unnecessary to meiition here. Review of decisions made under the Act is dealt with by Part VI. In addition to internal review (3.54), provision is made for external review by the fribunal (ss.55 et seq.). Central to the present question are ss.55, 58 and 59 which relevantly provide as follows: "S5.(1) Subject to this section, an i application may be made to the Administrative ni Appeals Tribunal for review of - i (a) a decision refusing to grant access toa 4. document in accordance with a request or deferring the provision of access to a document ; {b) a decision refusing to allow a further period for making an application under sub-section 54(1) for a review of a decision; or (ec) a decision referred to in section 29...." "$8.(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. ' - (2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is.to be granted...." "59.(1) 'Where notice of a decision that a decument, so far as it contains certain information, is not an exempt document under section 43 has been given, in accordance with sub-section 27(2), ta a person who made submissions in accordance with that section, that person may apply to the Tribunal for a review of that decision. (2) Where an application is made in accordance with sub-section (1) - (a) the provisions of this Part (other than sections 55 and 61) apply in like manner as they apply in relation to an application for review of a decision refusing to grant access to a document; and (Bb) the agency or Minister concerned shall forthwith inform the person who made the @ : ul ' i! : 5. request of the application. (3) Where - ca) upon a request referred to in sub-section 27(1), a decision is made, after the making : of submissions by a person in accordance \ with that sub-section, not to grant access to the document to which the request relates, so far as it contains the information referred to in Paragraph 27(1) (ade and (Bb) an! application ig made to the Tribunal for a review of the decision, the agency or Minister concerned shall forthwith inform the person who made the submissions of the application" ' 'According to the special case, the history of the | ar ! subject proceeding is as follows: $ "1 By ;letter dated 8 November 1984, Graham John Payne and Jemnifer Ann Payne ('the parties joihed' ) made a request to the Department of | h Transport ('the respondent') for access to —— | ddcuments. l, 2. THe respondent treated the letter as a request in, iting made by the parties joined pursuant tq sub-s.18(1)(a) of the....Act. THe! | respondent, being of the opinion that fi yi ; certain of the documents sought in the request & contained information concerning the business, 6. commercial or financial affairs of Mitsubishi Motors Limited ('the applicant'), gave the applicant, pursuant to sub-s.27(1) of the Act, an opportunity to make submissions in support of @ contention that these documents were exempt documents under 8.43 of the Act. CBy 3.27(1) of the Act where - - "Ca) a request is received by an agency - or Minister in respect of a document containing information concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking; and ' (bh) it appears to the officer or Minister dealing with the request, or to a person reviewing under section 54 a decision refusing the request, that the person or organization, or the proprietor of the undertaking, referred to in paragraph (a) might reasonably wish to contend that the document _ is an exempt document under section 43, a decision to grant access under this Act to the document, so far as it contains the information referred to in paragraph (a), shall not be made unless, where it is reasonably practicable to do so having regard to all the circumstances, including - . the application of section 19 - €c) the agency or Minister has given ta that person or organization or the proprietor of that undertaking & reasonable opportunity of making \ submissions in support of a \ contention that the document is an a exempt document under section 43; | . and (da) the person making the decision has had regard to any submissions so made." By s. 27(2), where - | i} ! . — "after any submissions have been made in accordance with sub-section (1), a decision is made that the document, so far as it contains the information referred to in paragraph (1)(a), is not an exempt document under section 43 - 7 (a) the agency or Minister shalt cause notice in writing of the decision to be given to the person who made the submissions, as well as to the person who made the request; and (b) access shall not be given to 'the - document, so far as it contains the information referred to in Paragraph (1)(a), uniess - (L) the time) for an application to the Tribunal by that person in accordance with section '59 has . expired and such application has not been al or — (ii) such an applicatiion has been made and the ribunal has confirmed the decision."J | | 4. By letter dated 25 February 1988, the applicant submitted that certain documents were exempt documents pursuant to -43 as well as exempt pursuant to wea. 37|sitay, 45 and 46(a) of the Act. 5. On or about 30 May 1985, the respondent notified the applicant and! the parties Hy ! ye joined that, having considered the submissions made by the applicant, it decided to grant access to. the documents which it considered were 'not exempt documents within the meaning of s.43 of the Act nor exempt pursuant to sub-s.37(2)(a), 45 and 46(a) of the Act. On 27 June 1985, the applicant made an application to the Administrative Appeals Tribunal ('the Tribunal') pursuant to s.59 of the Act fora review of the decision of the respondent that these documents were not exempt documents under 3.43 of the Act. This application was subsequently amended by the applicant and the application for review is stated by the applicant to be the review of: 'A decision that certain documents more particularly described in Schedule 'A' annexed to this application and concerning Valiant Seat Slides (hereinafter called 'the document') are not exempt documents within the meaning inter alia of Section 43 of the Freedon of Information Act 1982 and that access to those documents he granted to Mr, and Mrs. G. Payne the applicants for access to those documents.' , 9. - el 8. By application in writing dated 13 May 1986, the parties joined made application to be joined as parties to these proceedings. The Tribunal made an order to this effect on 16 May 1986. 9. . The applicant contends that, in reviewing the respondent's decision pursuant to s.59 ef the Act, the Tribunal is obliged or, alternatively, empowered to decide not only whether the documents are exempt documents under 3.43 of the Act, but further, whether the documents are exempt under any other provisions or provision of Part IV of the Act." The question of law referred to the Court is - "whether the Administrative Appeals Tribunal, when reviewing the respondent's decision, pursuant to s.59 of the Freedom of Information Act 1982, that a document, so far as it contains certain information, is not an exempt document under g.43 of the Act, is, as a matter of law, obliged or, alternatively, empowered to decide whether the document is an exempt document under that, or any other, provision of Part IV of the Act." In our opinion, the question referred should be answered in the negative so far as concerns any provision of Part IV other than 3.43. It 13 common ground that the Tribunal is . = A ee 10. _ empowered to decide a claim for exemption based on 3.43. _When read together, 33.27, 43 and 59 envisage the following procedure: (1) When an agency receives a request in respect of a document containing information concerning a person in respect of his business or professional affairs or concerning the business, . commercial or financial affairs of an organization or undertaking and it appears to the officer or Minister dealing with the request that the person or organization, or the proprietor of the undertaking might wish to contend that the document is an exempt document under s.43, a decision ' to grant access under the Act to the document shall not be made unless the party concerned has had arr-opportunity to be heard on the question whether 3.43 applies and the decision-maker has had 'regard to any submissions made in that connection (s.27(1)). (2) Where, after the making of any such submissions, a decision is made that the document is not an exempt document under s.43, notice of the decision is to he given to the persons interested ($.27(2)(a)); and access shall not be given to the document until the time for application to the Tribunal under 3.59 has expired and such an application has not been made; or such an application has been made and the Tribunal has confirmed the decision (3.27(2)(b)). ay ll. (3) Where notice of a decision that a document is not an exempt document under 3.43 has been given, in accordance with s.27(2), to a person who made submissions in accordance with that section, that person may apply to the Tribunal fora review of that decision (3.59(1)). It will be noticed that both 3.27(2) and s.59(1) speak of a decision that a document is not an exempt document under s.43. Neither provision mentions a decision that a document is exempt from disclosure under the Act on any other ground. Nor do 3.27(2) and 3.59(1) refer to a decision to grant access to a document. The crucial provision for present purposes is s.59(1) and it is accepted by the applicant, properly in our view, that 3.59(1) is the sole source of its right to seek review in the present case. In our opinion, 3.59(1) should be construed to mean what it says, that is to say, to provide aright of review only in respect of a decision that a document is not exempt under 3.43. On behalf of the applicant, a more expansive interpretation of 5.59(1) was contended for. In the first place, the applicant sought to argue that a decision made under s.27(2) that a document is not exempt under 3.43 is, in substance, a decision to grant access to the document. The applicant then argued that such a decision, i.e. one to grant access, was picked up by s.58(1) so as to confer upon the Tribunal jurisdiction to 12. deal with the whole question of the grant. of access and, as implicit in such a decision, the question whether any grounds of exemption, whether arising under s.43 or otherwise, were available. The argument, in our opinion, breaks down at the threshold. As a matter of both form and of substance, the language of s.59(1) makes it clear, we think, that the draftsman intended that there be given to the Tribunal jurisdiction to review only one kind of decision ~ a decision that a document is not exempt under s.43. The Act clearly distinguishes between a decision to grant access on the | one hand and a decision that a document is not exempt under one or more of the several exempting provisions contained in Part. IV on the other. That distinction is clearly recognised and given effect to in the provisions of $3.27(2) and 59(1). It is, of course, possible, in an appropriate case, for power to make a decision to be conferred by necessary implication. If, for example, a legislative provision will be without effective content if no authority to make the requisite determination exists, the legislative provision may be construed as impliedly conferring upon the designated person the statutory function of making the particular determination (see The Minister for Immigration and Ethnic Affairs v. Mayer (1985) 61 A.L.R. 609 per Mason, Deane and Dawson JJ. at p.618). But this is not a case where, in the absence of an implication, the provision will , 13. be without effect. Section 59 has the effect of enabling the Tribunal, upon the application of an affected person, to review a decision that a document is not exempt under 3.43. The fact that the section does not also permit the Tribunal, at the instance of that person, to review the decision of the primary decision-maker in relation to other grounds of exemption, does not mean that it lacks legislative content. It was further argued by the applicant that a construction of "g.59(2) which would deny the Tribunal jurisdiction to deal with all claims for exemption would be "absurd" and "capricious" and "irrational" in the sense explained by Mason and Wilson JJ. in Coope rookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at p.321. We do not agree. Decisions as' to exemptions are taken, in the first instance, by the relevant agency or Minister. A decision to refuse access is reviewable, upon the application of the applicant for access, by the Tribunal; but the general Policy of the Act is against providing unaer the Act itself any procedure for administrative review of a decision to grant access. The sole exception ta this general policy is in relation to the ground of exemption provided by s.43. The reason for such exemption presumably was that the ground necessarily requires a qualitative judgment about the effect of disclosure upon the business affairs of someone other than the agency or Minister, a judgment which may be difficult to make without assistance from that person. But this is a strictly limited exception to the 14 ° general rule. To limit review at the instance of a third party to a claim under s.43 is to accord with the general policy of the Act. I _ | It does not, of course, follow from what we have said that an affected party is without remedy. In the case of legal ol error that person may, in appropriate circumstances, obtain 'y judicial review either by way of prerogative writ or under the Administrative Decisions (Judicial Review) Act 1977 (see Harris v. Australian Broadcasting Corporation (1983) 50 A.L.R. 551 at pp.557-8; D.C. Pearce, Commonwealth Administrative Law (1986) at p.253). ' t The applicant sought support for its argument in the provisions of s.58(1) as picked up by s.59(2)(a) of the Act. It re will be remembered that, by $.58(1), under the heading "Powers of Tribunal", it is provided that in proceedings under Part VI, the Tribunal has power, in addition to any other power, to review any decision that has been made in respect of the request and to decide any matter in relation to the request that, under the Act, could have been or could be decided by an agency or Minister. It was suggested, on behalf of the applicant, that s.58(1) should be construed *as conferring jurisdiction upon the Tribunal to decide any claim for exemption rejected by the decision-maker. In our opinion, a general provision such as 3.58(1) should not be interpreted so as to expand the Tribunal's 1 nl $ q E} t en 15. { ] ' jurisdiction in the manner suggested. We would not. construe s.58(1) as conferring upon the Tribunal any allditicnal jurisdiction. Rather, it should be seen as iving to the Tribunal the power to deal with all questions within 'its jurisdiction; and, to this end, the Tribunal ts not to be i] constrained in the proper exercise of its functions by the way in which the decision-maker has seen fit to exercise his powers. If, for instance, the decision-maker fails to consider: relevant issues, the Tribunal is not limited to reviewing only those issues considered below (cf. Re Queensland Mines Ltd. and Export Development Grants Board (1985) 7 ALD 357). But that is not the present question. In the face of the. specifir provision in s.59(1) conferring a right of review in the case jot one kind of exemption, we do not think that the general lang ge of. s.58(1) should be seen as conferring an additional, ambulatory head of jurisdiction upon the Tribunal. And, even if s. B(1) is picked up by s.59(2), 3.58(1)} should be read down, if n cessary, so as to operate on matters otherwise within jurisdiction: " stream | i cannot rise higher than its source" (see The Australian Spamunaas Party v. The Commonwealth (1951) 93 C.L.R. 1 per Fullager J. at p.258). _ i The applicant sought an analogy for present purposes in the grant by the Constitution of a pendent o¥, | accrued jurisdiction to federal courts. We fail to see the' analog here. The authorities establish that, in the very different co text of Chapter III of the Constitution, "the grant of jurteds tion to _ 16. determine a matter carries with it jurisdiction to determine the whole matter, and that 'a 'matter' is a justiciable controversy which must either be constituted by or must include a claim arising under a federal law but which may also include another cause of action arising under another law, provided it tis attached to and is not severable from the former claim': Fencott v. Muller (1983) 152 C.L.R. 570 at 606; 46 ALR 41" (see In the Marriage of Smith (1986) 66 A.L.R. 1 per Gibbs C.d., Wilson and Dawson JJ. at p.16). But, in the present case, the question falls to be determined by reference to statutory language and a context which in no sense resemble Chapter III. Moreover, entirely different policy considerations are involved. ; Finally, we note that the applicant sought to tender before us the statement of reasons of the decision-maker furnished pursuant to s.37 of the Administrative Appeals Tribunal Act. At the hearing we deferred a decision as to whether we should admit this document. We have reached the conclusion that we should not do so andwe have not in fact looked at these reasons. By 3.45 of the Administrative Appeals Tribunal Act, the jurisdiction of this Court is to hear and determine the question of law referred. In those circumstances, the Court cannot go beyond the material contained in the special case (see Green v. Martin (1980) 63 A.L.R. 627 per Mason, Wilson, Brennan and Dawson JJ. at p.631). We would add that, in any event, we cannot see \ how the statement of reasons could bear upon the question of law referred. ' i u a 9 ' 17. We propose to order that the question he answered as follows: "(a) As to a claim for exemption under s.43 of the Freedom of Information Act - Yes; (b) as to a claim for exemption under any provision of Part IV of the Freedom of Information Act other than 3.43 - No." The applicant must pay the costs of the reference of the respondent and the parties joined. ' ° I certify that this and the . preceding sixteen (16 ) a Pages are a true copy of the Reasons for Judement herein of -the Court. — co - Associate _Dated: 2t Ockeler 1186. | | Counsel and Solicitors Mr. R. Merkel Q.C. with Mr. J. a] for Applicant: Wilkinson instructed by Messrs f Ross McCarthy & Nosworthy '|! Counsel and Solicitors _ Mr. J. Santamaria with Mr. A. for Respondent: Fairbank instructed by | Australian Government Solicitor j i Counsel and Solicitors Mr. H.C. Williams Q.C. with | . r Pr a Ashes) for Party Join ! ' I ed 'Dates of hearing: Date Judgment Delivered: - 18. Mr. S.d. Barret instructed by Messrs Barret Linquest. 13 October 1986 21 October 1986