Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005

Federal Court of Australia

Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005 Appeal from: Australian Conservation Foundation and Secretary, Department of Agriculture, Water and the Environment (Freedom of information) [2021] AATA 4619

File number: VID 9 of 2022

Judgment of: BROMBERG J

Date of judgment: 24 August 2023

Catchwords: ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) (FOI Act) – request for access to documents – appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal found six documents were exempt or conditionally exempt – whether the Tribunal considered each of the elements necessary to establish that disclosure would found an action for breach of confidence in accordance with the requirements of s 45(1) of the FOI Act – whether documents relating to a process which the Department and private interests agreed be confidential were conditionally exempt under s 47E(d) – whether the Tribunal misconstrued the phrase "could reasonably be expected to" in s 47E of the FOI Act – whether it was open for the Tribunal to find that there was a reasonable basis for an expectation that disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department – whether the Tribunal erred by misapplying the statutory "public interest" test in s 11A(5) of the FOI Act – appeal allowed – matter remitted to Tribunal for re-hearing

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Ch 4, Pt 7 Div 2, Pt 8, ss 68, 74(2), 74(3), 75 Environment Protection and Biodiversity Regulations 2000 (Cth) Freedom of Information Act 1982 (Cth) Pts III and IV, ss 3(1), 11, 11A, 22, 31B, 43(1), 45, 47E(d), 47F, 47G(1)(b), 61(1), 93A Convention on Wetlands of International Importance especially as Waterfowl Habitat. Opened for signature 2 February 1971. 996 UNTS 245 (entered into force 21 December 1975)