New South Wales Supreme Court CITATION : University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 HEARING DATE(S) : 19.09.06, 20.09.06, 25.09.06, final written submissions: 23.10.06 JUDGMENT DATE : 8 December 2006 JUDGMENT OF : Nicholas J DECISION : Para 105 CATCHWORDS : ADMINISTRATIVE LAW – Administrative Decisions Tribunal - procedural fairness – admission of fact made by defendant – whether Tribunal should inform parties and give opportunity to adduce evidence if it decided not to act on the admission – whether plaintiff denied procedural fairness. - STATUTORY CONSTRUCTION – construction of s 55 Freedom of Information Act 1989 and s 124 Administrative Decisions Tribunal Act 1997 – whether these provisions affect powers and functions of the Tribunal under s 63 Administrative Decisions Tribunal Act 1997 – whether Tribunal has a discretion to order access to documents which are exempt documents under Freedom of Information Act 1989 Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997, s 63, s 75, s 89, s 113, s 114, s 119, s 124, LEGISLATION CITED : Administrative Decisions Legislation Amendment Act 1997 Freedom of Information Act 1989, s 5 s 6, s 16, s 17, s 24, s 25, s 28, s 45, s 53, s 55, s 61, Sch 1, cl 6, cl 20 Interpretation Act 1987, s 33 Protected Disclosures Act 1994, s 4, s 8, s 9, s 14, s 25 CIC Insurance Limited v Bankstown Football Club Limited (1995-1997) 187 CLR 384 Comcare v Fiedler [2001] FCA 1810 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Ibrahim v Commissioner of Police [2004] NSWADTAP 8 CASES CITED : Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Neary v the Treasurer NSW [2002] NSWADT 261 Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 Vigolo v Bostin (2005) 221 CLR 191 PARTIES : University of New South Wales - plaintiff Gerard Michael McGuirk - defendant FILE NUMBER(S) : SC 30002/06 COUNSEL : P Singleton - plaintiff P G Bolster - defendant SOLICITORS : Sparke Lawyers - plaintiff Verekers Lawyers - defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Nicholas J 8 December 2006 30002/06 University of New South Wales v Gerard Michael McGuirk JUDGMENT 1 His Honour: This is an appeal by the plaintiff from the decision of the Appeal Panel of the Administrative Decisions Tribunal (the Appeal Panel) of 8 December 2005 affirming a decision of the Tribunal of 23 May 2005 that it give access to the defendant to documents sought under the Freedom of Information Act 1989 (the FOI Act). 2 The appeal to this Court is pursuant to s 119 Administrative Decisions Tribunal Act 1997 (The ADT Act) and is, by subs (1), limited to an appeal on a question of law. Background 3 The essential facts for the purposes of the appeal may be shortly stated. 4 Between September 2001 and February 2004, the plaintiff received a number of complaints regarding Professor Bruce Hall, Professor of Medicine at its Southwestern Sydney Clinical School and Director of the Division of Medicine at Liverpool Hospital. Reports in respect of those complaints were written by Professors Dowton, McLachlan, Ingleson, Niland, Deane, Wainwright and Hume, by an independent inquiry chaired by Sir Gerard Brennan, and by the Hon. Mr B C Hungerford QC (the Hall reports). All of the Hall reports have been published on the internet website of the plaintiff, but in a form edited (or "de-identified") to remove details that would identify complainants against Professor Hall and others, and to exclude certain personal information. 5 On 20 June 2004 the defendant made application under s 17 FOI Act to the plaintiff for access to unedited copies of those of the Hall reports which were the reports of Professors McLachlan, Ingleson, Niland, Deane, Wainwright and Hume. He made a similar application on 16 September 2004 for access to unedited copies of the reports of professor Dowton and of Mr Hungerford QC. He was provided with the reports of professors Niland and Hume. The plaintiff declined to provide the other reports, and asserted they were exempt from production under various provisions of the FOI Act. 6 The defendant applied under s 53(1) FOI Act on 7 December 2004 to the Tribunal for review of the determination in respect of the first application, and on 8 December 2004 for review of the determination in respect of the second application. The applications were heard together on 13 and 14 August 2005 by Mr S Montgomery, JM, (the Tribunal) whose decision was delivered on 23 May 2005. He set aside the plaintiff's determinations, and ordered provision of the documents. 7 On 20 June 2005 the plaintiff appealed from the Tribunal's decision to the Appeal Panel under s 113 ADT Act which was limited to questions of law (s 114(1)), and did not extend to a review of the merits of the decision. The scheme of the FOI Act 8 A person has a legally enforceable right to be given access to an agency's document in accordance with the FOI Act. An application for access is to be made in accordance with s 17. After considering an application for access to a document the agency shall determine whether access is to be give or refused (s 24(1)(a)). The agency has a discretion to refuse access to a document which is an exempt document (s 25(1)(a)). 9 The term "exempt document" is defined in s 6(1) to include a document referred to in Sch 1. Relevantly, Sch 1 provides: "Cl 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased)". "Cl 20 Miscellaneous documents (1) A document is an exempt document if it contains matter the disclosure of which would disclose: … (d) matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994,". 10 In the proper exercise of its discretion the agency should have regard to the objects of the FOI Act which are stated in s 5: "5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading". and the means by which it is intended that these objects be achieved. These include: "5 (2) The means by which it is intended that these objects are to be achieved are: … (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and". 11 Section 5(3) states that it is the intention of Parliament: "(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information". 12 By s 28(1)(a) an agency shall cause written notice to be given to the applicant of its determination of the application. If the determination is to the effect that access is refused the notice shall specify (i), the reasons for the refusal, and (ii), the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based (s 28(2)(e)). 13 Section 28(3) provides: "An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document". (There is a similar provision in respect of a notice of determination of an application for amendment of an agency's records (s 45(3)). 14 Part 5, Div 2 contains the scheme for the review of an agency's determination by the Tribunal. It was introduced by the Administrative Decisions Legislation Amendment Act 1997 in substitution for provisions for review by the District Court. It came into effect at the same time as the ADT Act. 15 A person whose application under s 17 for access to a document has been refused by an agency under s 24 has a right to apply to the Tribunal for a review of the determination (s 53(1), (3)(a)(i)). 16 Section 55 states the following procedure for dealing with exempt matter: "55 Procedure for dealing with exempt matter In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and (b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative". "Exempt matter" means matter by virtue of which a document is an exempt document (s 6(1)). 17 The burden of establishing that the determination is justified lies on the agency (s 61). 18 Under s 4 Protected Disclosures Act 1994 (PD Act) the term "protected disclosure" means a disclosure satisfying the applicable requirements of Pt 2. Relevantly, it must be made by a public official to the principal officer of a public authority or to another officer of a public authority in accordance with its internal procedure established for the reporting of allegations of corruption, maladministration, or waste of public money by the authority or any of its officers (s 8(1)(a), (b), (c)). To be protected the disclosure must be made voluntarily (s 9(1)), and must be of information which shows or tends to show corruption, maladministration, or waste of public money by the authority or any of its officers (s 14). 19 It was common ground that these provisions were applicable in the circumstances of this case, the plaintiff being the public authority, and the Vice Chancellor and its officers being its principal and other officers within the meaning of the sections. The ADT Act 20 The Tribunal's powers on review are found in s 63. It provides: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal". 21 Section 89 requires the Tribunal to give reasons for its decision. Sub-section (5) requires written reasons to set out the following: "(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made". 22 By s 113 a party may appeal against an appealable decision of the Tribunal to an Appeal Panel on a question of law, and with leave, seek a review of the merits of the decision. 23 By s 119(1) a party to proceedings before an Appeal Panel may appeal to the Supreme Court on a question of law against any decision of the Appeal Panel in those proceedings. 24 Chapter 8, Pt 1 includes provisions which limit or prevent disclosure of categories of information which are privileged or confidential. It includes s 124 which provides for the application of the ADT Act to documents which are exempt documents under the FOI Act. It is in these terms: "124(1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body. (2) Disclosure to person or body other than Tribunal The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted. (3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose any document to the Tribunal in relation to any proceedings before it and that document is an exempt document: (a) the Freedom of Information Act 1989 does not prevent the disclosure of the document to the Tribunal, and (b) the Tribunal is to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the document to the Tribunal consents to the further disclosure. (4) Certificates by Director-General of The Cabinet Office concerning cabinet document The Director-General of The Cabinet Office may certify that a document is an exempt document because it is a cabinet document. Any such certificate: (a) is conclusive of that fact, and (b) authorises any person who would otherwise be required under this Act to lodge the document concerned with (or disclose it to) the Tribunal to refuse to lodge the document with (or disclose it to) the Tribunal. (5) Definitions In this section: disclosure of a document includes the following: (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. document includes a part of a document. exempt document means an exempt document within the meaning of the Freedom of Information Act 1989 ." The proceedings before the Tribunal 25 The application before the Tribunal was for review of the determination to refuse access to the unedited material in the Hall reports which could identify complainants and which also consisted of personal information about other persons on the basis that they were exempt documents under Sch 1, cl 20(1)(d) and cl 6(1) respectively. 26 In short, the plaintiff's case was that the reports were exempt documents and, accordingly, in the exercise of its discretion under s 25(1)(a) it was entitled to refuse access to them. The Hall reports were before the Tribunal in edited and unedited versions. 27 On the first day of the hearing before the Tribunal Mr Mullen appeared for the plaintiff. He spoke to written submissions with reference to the Hall reports (e.g., Ex AM1, pp 156-159). Prior to adjourning at the end of the day the Tribunal said he would go through the reports that night (Ex AM1, p 159). Early on the second day of the hearing the Tribunal identified as an issue whether the complaints were protected disclosures under the PD Act. He pointed to the absence of the underlying documents, and stated that he would require them to enable him to decide whether they were exempt. The following exchange took place (Ex AMI, p 163): JUDICIAL MEMBER: The whole case is about documents and whether or not the documents are exempt under the FOI Act and whether these documents are hanging on other documents. Address that any way you like but the onus is on you to prove your case and I would have thought that they are essential parts to proving your case. Sorry, Mr McGuirk, do you wish to continue? MULLEN: I'm not sure that my friend is actually challenging that particular point. He may well indeed accept it. JUDICIAL MEMBER: I have to accept it. I have to make a decision on it and it's not a matter of-- MULLEN: It's a factual matter whether in fact the complaint-- JUDICIAL MEMBER: I would have to make a finding of fact that this is material relating to a protective disclosure or whatever the words-- MULLEN: I agree with that, in fact, a complaint has to be in fact a protected disclosure to come under the Protected Disclosure Act. It can't just be any complaint about anything. To me a protective disclosure-- JUDICIAL MEMBER: I was working through that overnight and I came to a dead end because I couldn't go any further. MULLEN: If that's the case I would be seeking further adjournment to go and put on evidence. JUDICIAL MEMBER: See where we end up because Mr McGuirk said that he wanted to make the submission that hopefully would shorten everything. I don't know what it is". 28 Thereafter the defendant made lengthy submissions on what was referred to as the "merit" issue. The thrust of these submissions was directed to the proposition that, in all the circumstances, the plaintiff should have exercised its discretion to give him access to the unedited reports, and that the Tribunal should order their release. He pointed to a number of matters in support of the argument that it was in the public interest that the reports be released, and that the mere fact that they were exempt documents was insufficient justification for refusal of access. He submitted it was for the plaintiff to prove grounds which justified refusal. 29 On a number of occasions the defendant stated his acceptance that the disclosures were protected disclosures, and this was not an issue for the Tribunal. Examples are the following. Ex AMI, p 189: "JUDICIAL MEMBER: Before you go any further, if I'm not satisfied or have got no basis to be satisfied that they are protected disclosures, how can I then deal with cl 20D? MCGUIRK: It's not necessary for you to make a finding in regard to that matter as I'll submit later on. I think whether the disclosures are protected or not is in fact not going to be the essence of any decision that you may make. That's my submission. I further submit that it is really beyond the jurisdiction of this Tribunal to make that finding in any case. There are some other cases, as you'd be aware, where the Tribunal has ruled it's necessary to make finding in regard to factual matters which I could refer to but I'd have to do my homework on. JUDICIAL MEMBER: I'll come back to you after I hear your submissions finish, I'm still sort of uneasy about. MCGUIRK: I've got the relevant cases here but my mind is not quite indexed in the same way that a computer is, so I'd probably have to do the search on my own computer. JUDICIAL MEMBER: I'll hear your submission and I'll see where I am". Ex AM1, p 191: "JUDICIAL MEMBER: I think you said that you concede that these are protected disclosures? MCGUIRK: Yes, absolutely. … JUDICIAL MEMBER … I was also told that these are protected disclosures. MCGUIRK: And I accept that and I think that I'm comfortable in terms of my submission if the Tribunal acts on that basis and I think it's important that it does because the matters of law relating to protected disclosures and its relationship with the FOI Act, I mean, the heart of what we're dealing with here". Ex AMI, pp 197-198: "MCGUIRK: … The paragraph 25 is really at the heart of the issues that we do need to address because I have submitted that this Tribunal should treat the disclosures made as protected disclosures and not question whether in fact that is the case or not and as the University submits clause 21(d) says that the matter is exempt if it's relating to a protected disclosure within the Act but as I've argued at length earlier on the fact that a document is exempt does not obviate the necessity for the University to make a case as to why it should not be released even if it is exempt". 30 Later (Ex AMI, pp 207, 208) in discussing the extent of matters to be dealt with in reply, Mr Mullen suggested that if, in the light of the defendant's submissions, he was required to lead evidence to prove the reports were protected disclosures it would involve an unreasonable diversion of resources. This lead to the following exchange (Ex AMI, p 208): " MULLEN: --it's also a lot of other people, so again it's then diversion of resources sort of thing and how far we have to go so to the extent that a decision would have to be made on whether they are protected disclosures, I'm just flagging may be the better approach is can we do it in a two-stage process. JUDICIAL MEMBER: I'm happy to hear the argument. I got to the stage where it was obvious that there had to be a decision of whether or not the documents are exempt and that was going to be a finding of fact and if the basis of them is that they were exempt because they relate to the protective disclosure, how can I make that finding of fact if I don't know that there is a protective disclosure and Mr McGuirk says that I should just accept that they are. MULLEN: I think there's also a preliminary view if you have to go off and make - if you don't have to or the University has to do it, to go and do that is an unreasonable diversion of resources. JUDICIAL MEMBER: I understand. MULLEN: We say it's a major diversion of resources. MCGUIRK: And I'm submitting that the Tribunal is taking on work which is unnecessary because I think that I'm not arguing about the status of the disclosures, I'm accepting that they are protected disclosures or I'm prepared for the Tribunal to accept that they're protected disclosures and to proceed from there. JUDICIAL MEMBER: All right. I'll go away and think about that". 31 The defendant continued with his submissions on the public interest issue, and emphasised that exemption was insufficient ground for refusal of access. He said (Ex AM1, p 222): "MCGUIRK: … I appreciate there are matters of law, that's it's not up to the Tribunal to step outside of the legal framework but I think it is sufficiently empowered to make a decision that these reports be released despite the fact that I accept that in the terms of s 21D, they are relating to a Protected Disclosure matter". 32 Mr Mullen replied to the defendant's submissions and referred the Tribunal inter alia, to the reports of Mr Hungerford QC and Professor Wainwright. He drew the Tribunal's attention to a number of complaints and related matter concerning the conduct of Professor Hall, which were claimed to be protected disclosures and were treated as such by the plaintiff. No question was raised by either the Tribunal or the defendant as to the authenticity of the complaints or about the circumstances in which they were made. The Tribunal's decision 33 The Tribunal found against the plaintiff on a number of grounds. For present purposes it is sufficient to limit consideration of its reasons to those which dealt with the protected disclosure issue. The reasons contained no reference to the defendant's concession. 34 Having set out the requirements to be met if a disclosure is to be regarded as a protected disclosure under the PD Act the Tribunal stated (Ex AM1, pp 252- 253): "15 In order to determine whether or not the Reports contain matter relating to a protected disclosure it is first necessary that I determine whether or not any or all of the complaints constitute a protected disclosure: Robinson -v- Director General, Department of Health [2002] NSWADT 222. The onus of establishing this lies on the University. 16 The University contends that each of the complaints is subject to the protection of the Protected Disclosures Act 1994 . The University's evidence in relation to the issue is limited to the report of Professor Ingleson dated 15 April 2002 which indicates that the complaints were treated as protected disclosures. The University adopted this approach notwithstanding the acknowledgement that at least one of the complainants did not seek the protection of the Protected Disclosures Act 1994 . 17 The University presented no other evidence in relation to the original complaints in order to establish that they were lodged as protected disclosures, or to establish whether or not subsequent events had altered the status of the disclosures. 18 A document that appears to be a complaint from one of the complainants is in the material provided to the Tribunal. That document is contained within an annexure to the Hungerford report. It is expressed to be lodged as a protected disclosure however there is no evidence at all to establish the authenticity or status of this document or even if it is in fact one of the complaints in issue. Mr Mullen, the University's solicitor, did not address this issue other than by reference to Professor Ingleson's report. In my view this is insufficient to satisfy the burden on the University to establish that this or any other document is a protected disclosure. 19 Material before the Tribunal indicates that the identities of the complainants have been made public. This has occurred both by way of posting of material on the University's website and by the media exposure apparently sought by some of the complainants themselves. It is conceivable that as part of this process the complainants might have waived any right to protection under the Protected Disclosures Act 1994 , however there is no evidence from which that inference could be drawn. 20 I specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing to allow the University to address it however it failed to do so in any satisfactory manner. In my view the mere fact that the University treated the complaints as protected disclosures does not establish that they were in fact protected disclosures. After considering the material before me I find that there is insufficient basis for concluding that the complaints are protected disclosures. The burden of establishing this lies with the University. The University has not satisfied that burden. 21 As I cannot be satisfied that the complaints are protected disclosures, I cannot be satisfied that the Reports are exempt from production under clause 20(1)(d) of Schedule 1 to the FOI Act". 35 It is evident from the reasons that all of the documents were examined by the Tribunal, and that he undertook a comparison of the edited and unedited versions of the reports. The proceedings before the Appeal Panel 36 So far as is relevant to these proceedings the plaintiff appealed on the following grounds: (1) The Tribunal erred at law by determining the case on the basis that there was no evidence that certain disclosures were protected discloses within the meaning of the PD Act when the respondent had conceded that the disclosures were protected disclosures; (2) That the plaintiff had been denied natural justice in that (a) it was not adequately warned that the Tribunal would not act on the defendant's concession, and (b) it was not granted an adjournment to enable it to adduce evidence in lieu of the concession; (3) That the Tribunal had failed to consider the unedited reports which were capable of establishing that the complaints were protected disclosures. 37 In short, the plaintiff submitted that the Tribunal should have found that the disclosures were protected disclosures and the documents were exempt, alternatively that it was denied procedural fairness in that it was not warned that the Tribunal would not act on the concession and it was denied the opportunity to adduce further evidence to prove the disclosures were, in fact, protected. 38 The defendant stated that he agreed with the plaintiff's submission that the Tribunal should have accepted his concession that the complaints were protected disclosures. The transcript shows (Ex AM2, p 2027): "JUDICIAL MEMBER: Sorry to interrupt you again. Can I just be really annoying and go back to where you're saying that you agreed that the Tribunal should have accepted your concession about the complaints being under the Protected Disclosure Act and the reports relate to the protected disclosures, you're saying that now and do you agree that that's what you were also saying to the Tribunal? MCGUIRK: Yes. JUDICIAL MEMBER: Thank you". 39 The thrust of the defendant's submissions was that, although the documents were exempt being documents relating to protected disclosures, he should nevertheless be given access to them. He submitted that the Tribunal had the discretion to give access to documents which were exempt under the FOI Act. Thus he raised before the Appeal Tribunal the issue as to whether the Tribunal has a discretion to order access in circumstances where an agency has refused to do so in exercise of its discretion under s 25(1)(a) FOI Act. He relied upon Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93, in which Smith, JM held that the Tribunal had such a discretion in the discharge of its functions under s 63 ADT Act. 40 The defendant further submitted that even if the plaintiff's appeal was successful the Tribunal's decision was nevertheless correct because it had a general discretion to grant access to exempt documents. The decision of the Appeal Panel 41 The Appeal Panel affirmed the Tribunal's decision and dismissed the appeal. The relevant passages from its reasons for decision are the following: "10. Mr McGuirk's concession. During the course of his submissions Mr McGuirk conceded that the complaints made about Professor Hall were "protected disclosures". He confirmed that to the Appeal Panel. However, he did not concede that the reports should not be released. As we have said, Mr McGuirk submitted that the Tribunal has an overriding discretion to release documents even if they fell within an exemption under the FOI Act. … 20 We find that Mr McGuirk conceded to the Tribunal that the complaints were "protected disclosures" and that the reports related to those disclosures. However, when Mr Mullen suggested to the Tribunal Member that Mr McGuirk accepted that the complaints were protected disclosures, the Tribunal Member said, " I have to accept it. I have to make a decision on it . . ." (Emphasis added.) The Tribunal Member was indicating to Mr Mullen that he was going to decide the issue on the merits rather than relying on any concession by Mr McGuirk. The Tribunal Member went on to say that he would have to make a "finding of fact" that the material relates to a protected disclosure. Mr Mullen then said, "Yes, no, I agree with that." We accept that Mr McGuirk continued to make the concession despite the Tribunal Member indicating that he was going to decide the issue on the merits. 21 The adjournment application . When the Tribunal Member raised with Mr Mullen the need for evidence that the complaints were protected disclosures, Mr Mullen said that he would be seeking an adjournment to put on further evidence. Later in the proceedings, Mr Mullen said that he had been thinking about the way to respond to the evidentiary matters that relate to protected disclosures. He then made a submission about unreasonable diversion of resources in relation to the Hungerford Report. The Tribunal Member then said that he would go away and think about that submission. During the course of his final submissions, Mr Mullen returned to the question of the need for evidence to support the claim that the materials were exempt by reason that they were protected disclosures. (See transcript 14.04.05 pages 51ff.) He presented the University's case on the basis that the Tribunal would be deciding the issue on the merits. In particular, he attempted to persuade the Tribunal on the basis of the Hungerford Report that the University treated the complaints as protected disclosures. Mr Mullen made detailed submissions but did not apply for an adjournment to enable the University to adduce further evidence. This conduct persuades us that at this point in the proceedings, Mr Mullen had decided not to press his application for an adjournment. The University did not submit, and did not adduce evidence in this appeal, that this was due to inadvertence. 22 Conclusion . The University was legally represented in these proceedings and can be taken to have known that it has the onus of proving the facts which form the basis of any exemption: s 61 of the FOI Act. While Mr Mullen may have been under the mistaken impression on the basis of the Results Sheet that he was not required to file any evidence, the Tribunal Member quickly dispelled any such impression at the beginning of the hearing. Contrary to the University's assertion that the Tribunal was not clear about what it was doing, the Member re-iterated the point that evidence was required and made it clear that he would not be acting on Mr McGuirk's concession. (See VTAO and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 at 350.) Mr Mullen understood the Tribunal's position because he went on to make alternative submissions and highlight relevant evidence. He would not have done so had he been under the impression that the Tribunal had accepted Mr McGuirk's concession. We are satisfied that the University had a reasonable opportunity to present its case. There has been no denial of procedural fairness. … 29 In its reasons for decision, the Tribunal specifically said that, "After considering the material before me I find that there is insufficient basis for concluding that the complaints are protected disclosures." Based on the transcript and the decision, we do not accept the University's contention that the Tribunal failed to give consideration to the unedited Reports even though the Tribunal had those Reports before it. 30 Even if the Tribunal did not consider the unedited reports as potentially relevant evidence, its failure to do so does not amount to a breach of procedural fairness. The un-edited copies of the reports were not provided to the Tribunal on the basis that they contained evidence of any matter in dispute. If the University sought to rely on any material in those reports to make out any of the exemptions, it needed to point to that material. As we have said, the Tribunal Member is not bound to set out in search for supportive evidence which the party has failed to articulate. ( Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626.) Mr Mullen did point to relevant evidence in the Hungerford Report. He failed to do so in relation to the un-edited version of other Reports. 31 The University also submitted that the Tribunal failed to make it sufficiently clear to the parties that it would not take the unedited reports into account when coming to its decision. For the reasons given above, we do not accept that the Tribunal failed to take the unedited reports into account. In any case, it is up to the party relying on the material to point to the relevant evidence. … 48 The next ground of appeal was that the Tribunal proceeded on the basis that it was not entitled to act on Mr McGuirk's concession but was obliged to decide the issue on the basis of the evidence. The Tribunal Member did not accept Mr McGuirk's concession. Whether he assumed that he was not entitled to accept it is debatable. When Mr Mullen pointed out that Mr McGuirk may well be accepting that the complaints are protected disclosures, the Tribunal Member said, that " I have to accept it. I have to make a decision on it . . . " (Emphasis added.) The Tribunal Member also emphasised in the decision that he "specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing ... " These comments are consistent with the Tribunal Member believing that he was not entitled to accept Mr McGuirk's concession. They are also consistent with him having decided that, while entitled to do so, he would not accept it. Having read the whole transcript and decision, we are not satisfied that the Tribunal was under the mistaken impression that he was not entitled to accept Mr McGuirk's concession. 49 The University's submission went further. It was said that it is "ordinarily inappropriate" for a Court to refuse to accept a concession without good cause. No authority was given for that proposition. Even if it is "ordinarily inappropriate" for a Tribunal to reject a concession, it is not an error of law to do so". 42 The Appeal Panel did not consider the defendant's submission as to the Tribunal's general discretion to grant access to exempt documents because, as it had not upheld any grounds of appeal, it found it unnecessary to do so. The appeal to the Court 43 The amended summons filed 19 September 2006 included 13 grounds of appeal of which grounds 4, 5, 6, 10 and 11 were abandoned. 44 The grounds finally relied upon were that the Appeal Panel erred in failing to hold that the Tribunal was wrong in not acting upon the concession; in denying procedural fairness to the plaintiff by failing to warn, or to adequately warn, that it would not act on the concession and failing to grant the plaintiff an adjournment to enable it to file evidence to prove that the disclosures were protected; and in determining the case on the basis that the evidence was not capable of establishing that the disclosures were protected disclosures. 45 Additional grounds raised the failure of the Appeal Panel to act upon the same concession made to it by the defendant during the hearing of the appeal, and its failure to warn that it would or might not do so. Other grounds related to comments by the Appeal Panel as to the conduct of the plaintiff's case before the Tribunal. The submissions 46 During the hearing of these proceedings the parties proceeded on the basis that the important issues for determination fell into two categories The first, as to the significance of the failure of the Tribunal to act upon the concession, and, the second, as to whether the Tribunal had a discretion to order access to documents which are exempt documents under the FOI Act and, if so, whether it should so order. (The second category was referred to as the "overriding discretion issue".) 47 It is convenient to deal first with the concession issue. 48 The plaintiff's submissions proceeded on an analysis of the transcript of the proceedings before the Tribunal to demonstrate the context in which the concession that the complaints were protected disclosures was made, and the conduct of its case thereafter. The relevant passages are set out in paras 27, 29, 30 and 31 above. 49 The passage at para 27 shows that early in the second day the Tribunal stated the view that he was required to find as a fact that the complaints were protected disclosures, and that the onus was on the plaintiff to prove that they were. Presumably on the assumption that the Tribunal had indicated that the evidence was inadequate, Mr Mullen stated that he would seek an adjournment to put on evidence. In response the Tribunal suggested that he defer doing so pending the defendant's submissions. 50 The plaintiff pointed out that thereafter the defendant made submissions to the effect that, in the public interest, the Tribunal should order access to the unedited reports. The plaintiff relied upon the passage quoted in para 17 above which records the defendant's unequivocal concession that the complaints were protected disclosures, and his invitation to the Tribunal to act on that basis. Reference was made to the defendant's submission that the Tribunal should treat the disclosures as protected, and not question whether in fact that was the case, and should accept the plaintiff's case that the documents were exempt documents under Sch 1, cl 20(1)(d). 51 The plaintiff also relied on the passage quoted in para 30 above in which the parties responded to the Tribunal's question about making a finding, based on acceptance of the defendant's concession, that the disclosures were protected. It pointed to Mr Mullen's response that it would be an unreasonable diversion of resources to be put to proof, and to the defendant's repetition of the concession that he conceded the protected disclosure issue. It pointed to the Tribunal's response to the common position of the parties which was in the following words: "All right. I'll go away and think about that". 52 The plaintiff submits that it is evident that the Tribunal decided to ignore the defendant's concession or decided not to accept it. It was put that the principles of procedural fairness required that he should have informed the parties of his decision, and to have afforded the plaintiff the opportunity of addressing the issue of proof and adducing further evidence. 53 For the defendant it was initially put that what was said by the defendant did not amount to a concession that the complaints were protected disclosures. In my opinion this submission cannot survive a reasonable reading of the transcript, and is rejected. Any doubt was removed by the inevitable finding of the Appeal Panel based on the defendant's statement to it. 54 In the alternative the defendant submitted that, in any event, the concession was not one upon which the Tribunal should have acted because it was plain from the outset that there was a lack of evidentiary support that the complaints were protected disclosures. It was put that, regardless of the concession, it remained for the Tribunal to be satisfied that the plaintiff had proved by evidence that the documents were exempt within Sch 1, cl 20(1)(d). 55 Further, it was submitted that in reply to the defendant's submissions, Mr Mullen gave no indication that he relied upon the concession, and should therefore be taken to have proceeded on the basis that the plaintiff left it to the Tribunal to decide whether the disclosures were protected, and that he was obliged to prove it. It was put that it was on this basis that Mr Mullen referred the Tribunal to the documents which included Mr Hungerford's report and the complaints annexed to it, and concluded his submissions without seeking an adjournment. 56 In short, the defendant submitted that the concession, if made, was of no effect because it did not relieve the Tribunal of the need to be satisfied that there was evidence that the disclosures were protected, and because the plaintiff placed no reliance on it. Thus, it was put, as there was no evidence to support a finding that the disclosures were protected, it was not open to the Tribunal to give the concession any weight. It was argued that there was no procedural unfairness in circumstances where the plaintiff did not rely on the concession and had full opportunity to put its case. Furthermore, it was put that the requirement for a warning did not arise as the plaintiff had proceeded on the basis that it was obliged to prove its case regardless of the concession. In any event, it was said, the Tribunal had given adequate warning very early in the case of his need to be satisfied on the evidence that the complaints were protected disclosures. The principles 57 In Comcare v Fiedler [2001] FCA 1810 the Full Federal Court of Australia pointed out that in carrying out its review functions under the Administrative Appeals Tribunal Act 1975 (Cth) the Administrative Appeals Tribunal ordinarily should accept relevant admissions of fact unless there is material before it to suggest that it could not properly rely upon those admissions in determining the case. It pointed out: "40. The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision". 58 In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Ipp, JA stated the principles in these terms: "78. These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. 79. A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves". 59 An early application of these principles is exemplified in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 in which Davies, J held (p 491) that a tribunal ought not to have made a finding of fact contrary to an agreed fact without disclosing to the parties that it did not propose to accept the agreement or without adjourning the proceedings to enable further evidence to be adduced. He said (p 489): "… where the Tribunal's procedures encourage the representatives of the parties to agree upon limited issues and thereby maximise the efficiency and reduce the cost of review by the Administrative Appeals Tribunal, it is obviously desirable that a concession made by the representative of one of the parties, be accepted unless there exist good reasons to the contrary. To do otherwise would be disruptive of the procedures of the Administrative Appeals Tribunal, which seeks to achieve resolution or limitation of disputes through its process of pre-trial mediation. Moreover, if a concession agreed to before a hearing is not accepted by the tribunal at the hearing, then the result will usually be, as in this case, that the hearing ought to be adjourned so that the parties may deal with the issue which they had understood to have been resolved". The concession issue considered 60 Before the Tribunal the plaintiff bore the burden of proving that its determination under s 25(1)(a) FOI Act to refuse access to the reports on the ground that they were exempt documents was justified. It was necessary for the plaintiff to show that the reports were exempt documents under Sch 1, cl 20(1)(d) being documents which contained matter the disclosure of which would disclose matter relating to a protected disclosure within the meaning of the PD Act. Proof was therefore required that the matters related to disclosures which met the relevant requirements of ss 8, 9, and 14 PD Act referred to above (para 10). It was also necessary for the plaintiff to show that, if the documents were exempt, the exercise of discretion to refuse access was justified in the circumstances. 61 However, the proceedings were adversarial and it was up to the parties to define the issues to be left for the Tribunal's decision. 62 The defendant conceded that the complaints were protected disclosures. He unequivocally stated to the Tribunal that he accepted they were protected disclosures, and invited it to proceed on that basis. In my opinion the intention and effect of the concession was to agree that the factual requirements of the PD Act were met and supported the finding that the documents were exempt documents. 63 By the time the defendant finished his submissions and Mr Mullen began his reply it was common ground between the parties that the complaints against Professor Hall were protected disclosures, and that the reports related to those complaints. In other words, the factual basis for a finding that the documents were exempt documents under Sch 1, cl 20(1)(d) was agreed. Any issue as to whether the reports were exempt documents was thereby removed from the contest, and the plaintiff was relieved from the burden of adducing evidence to prove the facts relevant to the issue of protected disclosure upon which exempt status depended. So, too, once the point was conceded, the Tribunal was relieved of any need to make findings of fact relevant to this issue. (Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, para 152) 64 As a consequence, the issues before the Tribunal on this aspect of the proceedings before it had been reduced to one, namely the overriding discretion issue. The defendant's submissions were directed to that issue which was the only one left for the Tribunal to decide. 65 Ordinarily, a party would not be required to adduce evidence to prove facts which the opposing party has admitted. The parties are entitled to conduct the case on the basis that the Tribunal would accept and act upon the admission. If the Tribunal does not intend to do so, procedural fairness requires it to inform the parties accordingly and to afford them the opportunity to meet this situation. As a fact-finder, it is always necessary for the Tribunal to consider precisely what it is that is being admitted and to give careful consideration to its significance (Dovuro, para 25). 66 The plaintiff failed because the Tribunal held that the material put before him was insufficient to establish that the complaints were in fact protected disclosures. The Tribunal's reasons made no mention of the defendant's concession that they were. The fact that there is no mention of a matter which required consideration founds the inference, which I make, that either it was not considered at all, or it was decided not to act upon it. This conclusion is reinforced by the statement in the reasons (para 20): "… In my view the mere fact that the University treated the complaints as protected disclosures does not establish that they were in fact protected disclosures". It suggests that his decision turned on the assessment of the plaintiff's evidence alone without regard to the significance of the parties' agreement that the complaints were, in fact, protected disclosures. 67 In my opinion, in holding that the plaintiff had failed to prove the complaints were protected disclosures without disclosing to the parties that he did not intend to accept or act upon the defendant's concession, and without affording them the opportunity to deal with an issue which both understood had been resolved, the Tribunal denied it procedural fairness in the proceedings before him. 68 The transcript shows that Mr Mullen's application for an adjournment was deferred at the Tribunal's suggestion pending the hearing of the defendant's submissions. Thereafter the concession was made and repeated. The point was reached (Ex AM1, pp 207, 208) when the Tribunal raised a question about accepting the concession. Mr Mullen foreshadowed that if proof of the necessary facts was required it would involve an unreasonable diversion of resources. For his part, the defendant submitted, in effect, that such proof was unnecessary, and the Tribunal should accept and act upon the concession. Significantly, the Tribunal's statement to the parties was that he would "… go away and think about that". 69 During the course of Mr Mullen's reply the Tribunal was referred in some detail to the documents, but the topic of the admission and whether or not it would or should be accepted was not raised again. 70 In my opinion, in all of the circumstances, it was reasonable for Mr Mullen to proceed to conduct the plaintiff's case as he did, and on the basis that further evidence to prove the disclosures were protected disclosures was not then required, alternatively, that if the concession was rejected he would be informed and afforded the opportunity to address the issue. 71 Nothing in the evidence established any reason to question the factual justification for the concession. Absent some rational basis for doubting it, the Tribunal was not obliged to enquire into the issue for itself, but was entitled to act on the concession in making its decision (Comcare paras 40, 42). It was reasonable for the plaintiff to assume the Tribunal would be guided by these principles. The Tribunal's process of reasoning suggests he may not have been aware of them. It follows that the submission made on behalf of the defendant in this Court to the effect that a tribunal should have evidence before it may act on an admission of fact is rejected. 72 In all the circumstances, I find that the Tribunal was obliged to inform the parties of its decision not to act upon the concession. It should have afforded them the opportunity to address him as to the significance of the admission, and whether or not there was reason to prove facts to establish an issue which had been conceded, and to adduce further evidence if the issue remained. This opportunity should now be provided to the parties. 73 It is apparent that I have come to a different view to the Appeal Panel as to whether the Tribunal had maintained the position throughout the hearing that he would decide the protected disclosure issue on the evidence of the facts rather than relying on any concession by the defendant. In my opinion, it is evident from the transcript passages to which I have referred that this was not the case. Furthermore, in my opinion there is no evidentiary support for the finding that the Tribunal made it clear he would not be acting on the concession (Appeal Panel reasons paras 20, 22). 74 The significant passage from the transcript is included in the Appeal Panel's reasons, para 11, (see also Ex AM1, pp 207, 208). In my opinion, when read in context, the Tribunal's statement (Ex AM1, p 208, l 32): "All right. I'll go away and think about that" should be understood as a statement of intention to think about the defendant's submission (ll 26-31) that he was prepared for "… the Tribunal to accept (the complaints were) protected disclosures and to proceed from there". In my opinion it is reasonable to understand the Tribunal, in using the pronoun "that", was referring to the immediately preceding submission of the defendant. Alternatively, it is reasonably open to understand that he was referring to both the defendant's submission and Mr Mullen's submission (ll 1-5, 16-20, 24) that further proof would involve an unreasonable diversion of resources. 75 Whichever of these ways it may be understood, the Tribunal's statement conveyed the impression that he was undecided about whether or not to act upon the concession. It was this impression with which the parties were left at the end of the hearing. Its effect was to nullify the Tribunal's statement that the plaintiff was required to prove the relevant facts which came long before the concession was made and repeated. 76 As I have said, if the Tribunal doubted the basis for the concession and/or whether or not it should be accepted, or had decided not to accept it, it was obliged to so inform the parties in clear and unambiguous terms of his position to enable them to address it. The passage referred to demonstrates that he did not do so. 77 For these reasons I find that the Appeal Panel was in error in failing to hold that the Tribunal denied the plaintiff procedural fairness in the manner referred to, and in proceeding to determine the case without regard to the concession that the disclosures were protected. Accordingly, the appeal to this Court should be upheld, and the orders of the Appeal Panel be set aside. 78 Because the Appeal Panel dismissed the appeal on procedural fairness grounds it decided that the plaintiff had no cause for complaint against the Tribunal's decision that access should be given to the defendant as the plaintiff had failed to prove the reports were exempt documents. As the Appeal Panel did not uphold either these or other grounds of appeal it found it unnecessary to determine whether the Tribunal had a general discretion to grant access to exempt documents under the FOI Act. 79 As I understand the parties' submissions, if the concession issue was decided favourably for the plaintiff it would not be necessary to deal with the other grounds of appeal. Nevertheless, the parties agreed that I should decide the overriding discretion issue on the assumption that the documents were, in fact, exempt documents. 80 However, I make brief comment with respect to the grounds based on the Appeal Panel's failure to act on the concession made to it by the defendant. The plaintiff accepted (T p 95) that it did not address the Appeal Panel on the significance of the concession generally. From the transcript of the proceedings before the Appeal Panel it is unclear whether the plaintiff made a submissions to the effect that the Appeal Panel should act on this concession and itself find that the reports were exempt documents and, without more, proceed to decide the overriding discretion issue. Although I am of the opinion that it was open to the Appeal Panel to have taken that course, even of its own motion, and thereby usefully reduce the issues before it, absent a submission that it should do so, I doubt if it is open to the plaintiff to complain on appeal that it did not. Ordinarily, a party is bound by the conduct of its case. It seems to me that in this case the plaintiff proceeded before the Appeal Panel on the basis that the defendant's confirmation to the Appeal Panel of the concession made to the Tribunal was relied upon only for the purpose of the removal of doubt that the concession was in fact made, and that the defendant intended the Tribunal should act upon it. The overriding discretion issue 81 The plaintiff contended that the Tribunal does not have power to give access to documents which are exempt documents under the FOI Act. It accepted that, absent other statutory provisions, the combined effect of s 63 ADT Act and ss 24(1) and 25(1)(a) FOI Act provides such power. However, it contended that s 124 ADT Act and s 55 FOI Act operate to deprive it of the power it would otherwise have. 82 The plaintiff submitted that the term "body" where first appearing in subs (1) should be understood to include "the Tribunal", and that the term "to disclose", having regard to the definitions in subs (5) should be understood to mean "to grant access to". Accordingly, it was submitted that it was permissible to read subs (1) as though it was in the following terms: "Except as provided by this section, nothing in this act requires or authorises the Tribunal to grant access to any exempt document to another person or body". 83 According to the argument it followed that its effect is to deprive the Tribunal of the power to grant access to an exempt document which it would otherwise have under s 63 or any other provision of the ADT Act. It was submitted that the effect of subs 124(2) was that the Tribunal was unable to order disclosure or access unless it was authorised to do under the FOI Act. It was submitted that although under that Act an agency may determine whether to give or refuse access, it gave no authority to the Tribunal to give access. It was put that the prohibition in s 55(a) FOI Act against disclosure of exempt matter in its reasons or otherwise operated against a power to order access. On this construction of s 124 ADT Act and s 55 FOI Act it was submitted that the Tribunal did not have an overriding discretion on review of an agency's determination to order access be given to an exempt document. 84 The plaintiff relied upon the ruling of O'Connor, DCJ in Neary v the Treasurer NSW [2002] NSWADT 261 which held that, on its proper construction, s 63 ADT Act did not afford the Tribunal the discretion to release an exempt document which is conferred upon an agency by s 25 FOI Act. 85 On the other hand, the defendant contended that by s 63 ADT Act the Tribunal is placed in the same shoes as the agency the determination of which it is required to review, and necessarily has the same discretion to order access to exempt documents. His submission is that neither s 124 ADT Act nor s 55 FOI Act limit the Tribunal's functions under s 63 ADT Act. He contended that, consistent with the ruling of Mr M B Smith, JM in Mangoplah the Tribunal has a discretion to order access to the exempt documents and, in the circumstances of this case, it should have exercised it in his favour on public interest grounds. The overriding discretion issue considered 86 Determination of the issue turns on the proper construction of s 124 ADT Act and s 55 FOI Act. 87 In construing the legislation a construction promoting its purpose or object is to be preferred to a construction that would not promote that purpose or object (e.g. Vigolo v Bostin (2005) 221 CLR 191, para 53). This is the approach required by the Interpretation Act 1987, s 33. Context is also an important consideration. (CIC Insurance Limited v Bankstown Football Club Limited (1995-1997) 187 CLR 384, p 408). Ultimately, in every case, statutory construction is a text-based activity. (Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273, paras 87, 89). 88 I turn first to s 55 FOI Act. 89 It is self-evident that the section is a procedural requirement applicable to the Tribunal in the course of determining a review application in the exercise of its powers and functions under s 63 ADT Act. Its purpose is to prohibit the Tribunal from disclosing in its reasons or otherwise any exempt matter. It is consistent with ss 28(3) and 45(3) FOI Act which relieve the agency of any requirement to include in a notice of refusal of an application any matter which would cause the notice to be an exempt document. 90 The relevant legislative context to which reference may be made includes the provisions of the ADT Act which establish the general procedure of the Tribunal. These include the general requirement that hearings be conducted in public, and that its written reasons are to include its findings on material questions of fact with reference to the evidence or other material on which they were based, and its reasoning processes which led to its conclusion. Also relevant are the provisions which provide a party with a right of appeal to the Appeal Panel and, from it, to the Supreme Court. 91 The meaning of s 55(a) was considered by the Appeal Panel in Ibrahim v Commissioner of Police [2004] NSWADTAP 8. I respectfully agree with, and adopt, what was said in the following passage: "28 This provision modifies the general rule found in s 89(5) of the ADT Act which obliges the Tribunal to set out in its written reasons its factual findings, referring to the evidence or other material on which those findings were based, its understanding of the applicable law and its reasoning process. The effect of s 55(a) is that any material which the Tribunal finds to be exempt, cannot be disclosed in its reasons for decision or otherwise. Similarly, any material which the agency claims to be exempt, but which the Tribunal ultimately finds not to be exempt, must not be disclosed. That conclusion is based on the statutory interpretation of the provision and is consistent with the case law in other jurisdictions. … 30 The objects of the FOI Act are set out at [6]. Although it is not an object of the FOI Act to prohibit publication of material over which an agency claims an exemption, the FOI Act acknowledges that an agency may deny access to documents to the extent that it is it is "reasonably necessary for the proper administration of Government": s 5(2)(b). In cases where the Tribunal ultimately disagrees with the agency's determination, the agency may wish to appeal against that decision. If the Tribunal discloses matter over which an exemption is claimed, then any appeal right in relation to that material is effectively nullified. 31 Commissioners and Courts in Queensland and Western Australian have interpreted equivalent provisions in their State's FOI legislation as applying to material which the agency claims to be exempt. Section 87(1) and (2) of the Freedom of Information Act 1992 (Qld) is in similar terms to s 55(a) and has been interpreted as requiring the Commissioner not to disclose in its reasons for decision material which the agency claims to be exempt. ( B and Brisbane North Regional Health Authority [1994] QICmr 1 (31 January 1994); (1994) 1 QAR 279 at [11]; Kupr and Department of Primary Industries [1999] QICmr 6 (27 September 1999); (1999) 5 QAR 140 at [14]. 32 Section 74 of the Freedom of Information Act 1992 (WA) contains a similar provision to s 55(a). The Western Australian Supreme Court has interpreted that provision to include matter claimed by an agency to be exempt. BGC (Australia) Pty Ltd v Fremantle Port Authority and Anor [2003] WASCA 250 (15 October 2003). 33 The effect of s 55(a) is that even if the Tribunal ultimately disagrees with an agency's characterisation of matter as exempt, it is prevented from disclosing that matter to the applicant either in its reasons for decision or otherwise. This does not constitute a breach by the Tribunal of its obligation to afford the parties procedural fairness: s 73(2) of the ADT Act. In clear statutory language, s 55(a) qualifies an applicant's right to be apprised of the other party's case. (See Daniels Corporation International Pty Limited & Anor v Australian Competition and Consumer Commission (2002) 192 ALR 561 per Gleeson CJ Guadron, Gummow and Hayne JJ at [11].) … 40 Section 55(a) governs the situation where, as in this case, the Tribunal goes on to finally determine the review application. In determining a review application, the Tribunal, the Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter." We have discussed the meaning of that provision at [29] to [35] above. 41 It is a rare for a court or Tribunal to be justified in not disclosing its reasoning or its orders in full ( David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 295 per Street CH at 300 –301). The question is whether the Tribunal needed to write confidential reasons and make a partially confidential order to comply with s 55(a). For example, if the confidential orders required the agency to disclose a schedule of documents to the applicant, then by revealing that a schedule of documents existed, the Tribunal would be disclosing information which the agency claimed to be exempt. Although its ultimate finding might be that such a disclosure does not contain exempt matter, in order to preserve the agency's appeal rights, the Tribunal is prevented from publishing that information in its reasons for decision and its orders". 92 In my opinion s 55 says nothing about, and has no effect upon, the Tribunal's powers and functions under s 63 ADT Act. In particular, it does not preclude the Tribunal from deciding to disagree with an agency's exercise of discretion under s 25(1)(a) to refuse access to an exempt document, and to make an order that it be released to the applicant. As pointed out in Ibrahim (para 28), s 55(a) prohibits disclosure of exempt matter in the written reasons to be provided under s 89(5) ADT Act. In short, it operates to limit the content of the reasons for a decision under s 63 ADT Act, and is irrelevant to the exercise of the powers and functions by which the decision is made. 93 I turn now to s 124 ADT Act. As earlier mentioned, the ADT Act was enacted at the same time as the Administrative Decisions Legislation Amendment Act which included s 55 FOI Act. The second reading speech was in respect of both Bills, and included the following statement by the Minister: "The Tribunal will need access to all relevant documentation in order to reach the correct or preferable decision about the matter before it. Evidence of government policies may be provided by ministerial certificate. However provision has been made for the protection of the confidentiality of Cabinet documents and other exempt documents under the Freedom of Information Act and for the application of those parts of the Evidence Act which relate to privilege". (NSW Legislative Assembly: 29 May 1997, Hansard, p 9605). 94 Sub-section (1) states that the ADT Act provides neither requirement nor authority to any person or body to disclose any exempt document to another, except as provided by the section. Its construction requires consideration of subs (5) in which the term "disclosure" is defined for the purpose of the section to include several meanings namely, (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. Ordinarily, "provision" means "the providing or supplying of something", "granting" means "the act of granting", and "disclosure" means "the act of disclosure". The ordinary meaning of the verb "to disclose" includes "allow to be seen; to make known" (Macquarie Dictionary, 4th edition). 95 Sub-section (2) preserves the prohibitions under the FOI Act of disclosure of exempt documents to any person or body other than to the Tribunal. 96 Sub-section (3) is the exception to which subs (1) refers. It allows, (a) disclosure to the Tribunal of a document the disclosure of which is prevented under the FOI Act if such disclosure is required or authorised under the ADT Act, and (b) requires the Tribunal to ensure that it is not disclosed to any person other than a member of the Tribunal without the consent of the disclosing person or body. It applies to the circumstances where an agency has lodged with the Tribunal exempt documents under s 58, or has produced exempt documents to the Tribunal pursuant to a summons issued under s 84. 97 Sub-section (4) enables the Director-General to certify a cabinet document as an exempt document which thereby authorises a person to refuse to lodge or disclose the document with the Tribunal if the person would be otherwise required under the Act to do so. 98 With regard to the meanings prescribed by the legislature the effect of subs (1), properly construed, is to state as a general rule that the ADT Act provides no requirement or authority for any person or body to engage in any activity of disclosure, as defined, of any exempt document, or to allow to be seen or to make known any exempt document. So understood, the section permits disclosure of exempt documents to the Tribunal and, subject to the FOI Act, ensures the protection of their exempt status. This construction gives effect to the language of the section considered as a whole, and is consistent with the minister's statement in the second reading speech to which I have referred. 99 In my opinion, s 124 is a procedural provision the purpose of which, consistent with the Minister's statement, is to meet the need of the Tribunal for access to relevant documentation in order to reach the correct or preferable decision about the matter as well as to secure the protection of the confidentiality of cabinet documents and other exempt documents under the FOI Act. 100 It is also evident from the second reading speech and the contemporaneous enactment of Pt 5, Div 2 FOI Act and the ADT Act that s 55 FOI Act and s 124 ADT Act are complementary provisions with a common purpose. 101 The distinction between conduct in making disclosure, to which s 124 is directed, and conduct in making a decision, to which s 63 is directed, is readily seen. Accordingly, in my opinion, like s 55 FOI Act, the operation of s 124 is irrelevant to the operation of s 63 and, particularly, to the kind of orders it may make in the exercise of its powers and functions under it. For these reasons the plaintiff's submissions are rejected. Conclusion 102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. 103 It follows that with respect to the overriding discretion issue I respectfully disagree with the conclusion expressed in Neary (para 83) that it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25 FOI Act that a Minister or agency release an otherwise exempt document. In my respectful opinion the following passage from Mangoplah correctly states the position: "85 Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it". 104 On the concession issue I have found that the plaintiff was denied procedural fairness by the Tribunal, and should be given the opportunity to present its case. On the overriding discretion issue I have found that the Tribunal has a discretion to order access be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. 105 In the circumstances it is appropriate that I direct the parties to bring in short minutes of orders to give effect to these conclusions, and to afford them the opportunity to address me in relation to costs. Arrangements should be made with my associate by 14 December 2006 for the re-listing of the matter. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.