Waterford v Commonwealth [1987] HCA 25

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Waterford v Commonwealth [1987] HCA 25

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1987, June 24 Mason and Wilson JJ.

In December 1982, the appellant made a request in writing to the Department of the Treasury ("the Department") for access to certain documents relating to projections made in the 1982-1983 Budget Papers and subsequently in a ministerial press release regarding the estimated number of persons who would receive unemployment benefits. The request was made in accordance with s. 15 of the Freedom of Information Act 1982 Cth, as amended ("the Act"). Access to those documents was refused and in January 1983 the appellant applied in accordance with Pt VI of the Act to the Administrative Appeals Tribunal ("the Tribunal") for a review of that decision. The application was heard and on 29 June 1983 the Tribunal delivered its decision affirming the refusal of access.

After the conclusion of the hearing of his application for review, but before the Tribunal delivered its decision, the appellant requested access to those documents in the possession of the Department which related to the processing of his earlier request. By letter dated 31 May 1983 the Secretary to the Department advised the appellant that with the exception of a few documents as described, his request for access was refused. On 2 June 1983 the appellant applied to the Tribunal for a review of the decision refusing access. In due course, forty-five documents were identified as the documents to which the application for review related. The Tribunal was provided with an itemized schedule giving a brief description of the nature and content of each document. They are variously described as letters, draft letters, minutes, memoranda and notes. The minutes passed between officers of the Department or between an officer of the Department and the Treasurer. The notes were notes prepared by officers of the Department. The letters passed between the Attorney-General and the Treasurer. The memoranda passed between officers of the Department and officers of the Deputy Crown Solicitor's Office in the Australian Capital Territory (now the Australian Government Solicitor: Judiciary Act 1903 Cth, as amended, s. 55E). The Department claimed that documents numbered 1 to 38 and document numbered 45 were exempt documents under s. 36 of the Act, being internal working documents the disclosure of which would be contrary to the public interest, and in this regard a conclusive certificate issued pursuant to s. 36(3) of the Act was tendered. In addition to this claim, the Department claimed that all the documents numbered 1 to 45 were exempt documents by reason of s. 42(1) of the Act, each document being the subject of legal professional privilege. For the purposes of this narrative, it is sufficient to record that the Tribunal was satisfied that thirty-three of the documents were the subject of legal professional privilege. The appellant thereupon exercised, with respect to twenty-three of these documents, the right of appeal, on a question of law, to the Federal Court of Australia conferred upon him by s. 44 of the Administrative Appeals Tribunal Act 1975 Cth, as amended. The Federal Court (Fisher, Gallop and Neaves JJ.) dismissed the appeal.