McKinnon v Secretary, Department of Treasury [2006] HCA 45

HIGH COURT OF AUSTRALIA

GLEESON CJ,

KIRBY, HAYNE, CALLINAN AND HEYDON JJ

MICHAEL McKINNON APPELLANT

AND

SECRETARY, DEPARTMENT OF TREASURY RESPONDENT

McKinnon v Secretary, Department of Treasury [2006] HCA 45

6 September 2006

S52/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

J E Griffiths SC with J K Kirk and T J Brennan for the appellant (instructed by Corrs Chambers Westgarth)

R R S Tracey QC with M F J Campbell for the respondent (instructed by Australian Government Solicitor)

Australian Press Council intervening as amicus curiae on the basis of written submissions only

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

McKinnon v Secretary, Department of Treasury

Administrative law – Freedom of information – Statute conferring right of access to documents other than exempt documents – Documents exempt if relating to deliberative processes of government and if disclosure contrary to the public interest – Decision by Minister to issue certificate that disclosure of certain documents contrary to the public interest – Whether reasonable grounds exist for claim that disclosure contrary to the public interest.

Words and phrases – "exempt document", "internal working documents", "conclusive certificate", "public interest".

Freedom of Information Act 1982 (Cth), ss 3, 11, 36, 58(5), 58B, 58C, 58E, 64.

Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 44.

1. GLEESON CJ AND KIRBY J. The characteristic function of the Administrative Appeals Tribunal, established by the Administrative Appeals Tribunal Act 1975 (Cth), is to undertake what is sometimes called "merits review" of administrative decisions, determining whether the decision under review was, on the material before the Tribunal, the correct or (in the case of discretionary decisions) the preferable one[1]. When the Freedom of Information Act 1982 (Cth) ("the FOI Act") was enacted, the Tribunal, by s 58(1), was given that function in relation to what might be described as ordinary or routine decisions concerning requests for access to a document of an agency or an official document of a Minister. It is not, however, the function with which this appeal is concerned. We are concerned with a different function, identified by s 58(5), relating to a limited class of document, and a particular kind of decision. 2. The central issue in the appeal turns upon an accurate understanding of the nature of the special function identified by s 58(5). The appellant contends that Downes J[2], the President of the Tribunal, who followed a line of authority in the Tribunal and the Federal Court, and whose decision was upheld by a majority of the Full Court of the Federal Court[3] (Tamberlin and Jacobson JJ, Conti J dissenting), erred in law in his understanding of the nature of the power given to the Tribunal by s 58(5). 3. The facts, and the relevant statutory provisions, are set out in the reasons of Hayne J. For our purposes, and at the risk of some over-simplification, it is sufficient to summarise the legislative context as follows. 4. The declared object of the FOI Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth Government by creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests (s 3). We emphasise the repeated use of the word "right". Included in the exemptions and exceptions which qualify that right are those created by s 36 of the FOI Act, which deals with what are described as internal working documents. Such a document is exempt from disclosure if two conditions are satisfied. The first condition turns upon an objective description of the document itself. It must be a document the disclosure of which would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister. If a document answers that description then a second condition (which is that of present relevance) applies. The second condition for exemption is that disclosure of the document would be contrary to the public interest. 5. A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)). 6. The legislative scheme with respect to internal working documents (s 36(3)) is that, where a document is one as to which the first condition mentioned above is fulfilled (which turns upon the nature and contents of the document and, perhaps, other circumstances), then a Minister may sign a certificate which, so long as it remains in force, establishes conclusively that the second condition for exemption is fulfilled. The Minister's power so to certify is conditioned as follows: