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Bill Lane and Eleanor Dickens [*]
Freedom of Information (FOI) legislation was first introduced in Australia in the 1980s, the Commonwealth FOI Act essentially being the template for the introduction of legislation in other Australian jurisdictions. Although deficiencies in FOI regimes have been the subject of a number of reform proposals,[1] the pressure for change has intensified in more recent times. Increasing Government outsourcing and corporatisation have reduced the reach of FOI in the sense that documents held by private sector entities are generally not directly accessible under FOI.[2] Governments have also generally regarded FOI as incompatible with the existence of Government business enterprises, many of which are afforded legislative immunity from FOI. As well as this, patterns of FOI usage have emerged which are arguably inconsistent with the original FOI goals of achieving open Government and enhancing the values of citizenship. For instance, whilst the framers of the Commonwealth FOI Act anticipated the need for exemptions to protect third party business interests, they may not have fully envisaged certain applications of FOI which have evolved in relation to competitive business practices, such as the use of FOI as a handy mechanism for private business entities to gain commercial information about rivals. This can be seen, for instance, in the expanding field of Government outsourcing where unsuccessful tenderers have resorted to FOI as a means of seeking access to commercial information about their business rivals.[3]
FOI regimes have also faced new challenges in the wake of increased concern about global terrorism and perceived threats to national security. As Governments modify legal systems in areas such as criminal investigation and surveillance in order to address increased national security concerns, the underlying values supporting FOI become more difficult to sustain. Increased concern for public safety means that the balance inevitably shifts from openness and transparency towards greater control of information as Governments adopt new strategies deemed necessary to deal with perceived threats of this nature.[4]
In addition to these challenges, FOI has increasingly struggled against bureaucratic inertia and even active resistance, undermining its foundational goal of enhancing transparency in Government. As a Canadian study concluded, long-term exposure by Government agencies to FOI leads to the development of ‘FOI resistant cultures’ in areas of public administration - represented by what are referred to as agency strategies of ‘contentious issues management' - strategies which have evolved to thwart or deflect FOI requests perceived as likely to result in the exposure of information capable of reflecting badly on the agency or causing political embarrassment to a Minister.[5] The extent to which patterns of bureaucratic behaviour of this nature exist in Australia has not been the subject of any specific and systematic study, although evidence suggests that they do exist, especially where public officials are confronted with managing FOI requests involving politically sensitive issues.[6]
Finally, the manner in which Government agencies and Ministers have been prepared to rely on the FOI 'conclusive certificate mechanism'[7] to withhold documents arguably increases the degree of cynicism about Governments' stated commitment to the goal of openness and transparency. This mechanism, which had been the subject of early calls by law reform bodies for change,[8] enabled a Minister, or some other designated public official, to sign a certificate certifying that a matter within the scope of an FOI request is embraced by a particular exemption. Once signed, a certificate established conclusively that the requested material fell within the relevant exemption. The major feature of the 'conclusive certificate mechanism' was the limited scope of review available once a certificate had been issued. The role of the reviewing body was generally confined to the question of whether reasonable grounds existed for the claim made in the certificate, rather than whether the decision to issue the certificate was based on 'reasonable grounds'. In other words, the review body was not permitted to consider whether the public interest favoured disclosure or non-disclosure of the relevant documents or even whether, in all of the relevant circumstances, it was reasonable to claim the exemption.[9] Moreover, 'reasonable grounds' was taken to mean grounds distinct from those which were 'irrational, absurd or ridiculous',[10] thus suggesting a relatively easy test to satisfy.
Disquiet over the use of the conclusive certificate mechanism came to a head with the High Court decision in McKinnon v Secretary, Department of Treasury[11] where a 3-2 majority (Hayne, Callinan and Heydon JJ; Gleeson CJ and Kirby J dissenting) affirmed that no balancing exercise was involved - the task being simply to decide whether there were reasonable grounds for the claim that disclosure would be contrary to the public interest even though there may be reasonable grounds against the claim.[12] (Nonetheless, the majority did emphasise that the term 'reasonable grounds' was not simply synonymous with 'not irrational, absurd or ridiculous.'[13]). In the wake of the High Court decision in McKinnon and as part of its stated 2007 election promise to reform the FOI process, the Commonwealth Government introduced legislation in September 2008 to abolish the power to issue conclusive certificates.[14]
Against this background, the purpose of this Paper will be to discuss the recent developments in FOI, with a particular focus on the recent developments in Queensland which have seen the establishment in many respects of a fundamentally different FOI regime.
Bearing in mind the matters outlined above, it is not surprising to have seen recent calls for a fundamentally new FOI model. Whilst some existing FOI regimes, such as that in the Northern Territory, are structurally different from the conventional 'Commonwealth FOI template', the recent reform initiatives in Queensland, New South Wales, Tasmania and the Commonwealth, point to a radical departure from the old template and the emergence of a significantly different kind of FOI regime.
In 2007, the Queensland Government commissioned an Independent Review Panel (Panel) to undertake a comprehensive review of Queensland's FOI Act. The terms of reference were deliberately framed to direct the Panel to step beyond a 'section by section' review of the existing statute in favour of exploring a completely new model. As a result, the Panel's Report - The Right to Information - Reviewing Queensland's Freedom of Information Act[14] (Solomon Report) was based on a fundamental re-appraisal of the core elements and concepts of the current FOI framework in the context of information management generally. In that respect, the Panel's 141 reform recommendations extended beyond the conventional architecture of FOI legislation, encompassing related areas of information privacy and records management. Taken as a whole, the Panel's recommendations pointed towards an entirely new legislative framework, governing the overall management of Government information - a framework which the Panel summed up as a move from the conventional 'pull model' of FOI to a 'push model'.
In a formal response to the Report in August 2008, the Queensland Government accepted the majority of the Panel's recommendations and released two Draft Discussion Bills - the Right to Information Bill 2009 and the Information Privacy Bill 2009 designed to establish a fundamentally different type of FOI regime, interconnected with a State-based information privacy and personal information access and amendment regime. Following final adjustments to the content of the two draft Bills, the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act) were passed and came into effect on 1 July 2009. The key features of the Queensland legislation are explained later, the most significant of these is a complete re-modelling of the exemption system in the context of a new public interest test and provision for the routine release of information.
In the wake of the Queensland FOI reform initiatives, the Commonwealth Government, in March 2009, released two Exposure Drafts - the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009, with the stated object of building a stronger foundation for openness in Government by promoting a 'pro-disclosure culture'. These Bills have features in common with the new Queensland legislation, including in particular, a re-modelled public interest test as well as measures to ensure the increased 'routine' release of information.
In the meantime, the New South Wales (NSW) Ombudsman announced, in April 2008, a comprehensive review of the Freedom of Information Act 1989 (NSW). A Discussion Paper issued in September 2008 was followed by the delivery of a comprehensive report to the NSW Government in February 2009 - Opening Up Government - Review of the Freedom of Information Act 1989.[15] The report followed the tenor of the Solomon Report, providing the NSW Government with 88 recommendations - the key elements of which included a new Act incorporating proactive disclosure, new public interest and objects clauses and the creation of an Information Commissioner. After releasing public consultation drafts,[16] the NSW Government has responded by passing the Government Information (Public Access) Act 2009 (NSW) and the Government Information (Information Commissioner) Act 2009 (NSW) which are expected to be proclaimed and operational in 2010.
Similar initiatives for reform have occurred in Tasmania with the release of a Directions Paper in 2009, Strengthening Trust in Government - Everyone's Right to Know - Review of the Freedom of Information Act 1991 (Tas) (Directions Paper).[17] This move is a step towards a broader 10-point plan announced by the Tasmanian Government in August 2008 to 'strengthen trust in democracy and political processes in Tasmania'.[18] As with the Commonwealth and NSW recommendations, the Directions Paper follows the reform agenda of the Solomon Report, recommending in particular a reformulation of the public interest test, modelled on the RTI Act. The Paper recommends that new Tasmanian legislation include a clear statement that disclosure of information must occur unless its disclosure, on balance, would be contrary to the public interest, and a schedule which provides for a non-exhaustive list of factors which must be taken into account in assessing the public interest.
At the time of writing, the Queensland RTI Act and IP Acts were the only statutes in force as an operational example of the 'new FOI model'. This, together with the fact that the recent reform initiatives in other jurisdictions have substantially endorsed the Solomon Report recommendations which underlay the Queensland legislation, means that it is appropriate to explain the key features of the 'new FOI model' by reference to the Queensland legislation.
Before considering key features of the RTI and IP Acts, it is useful to make mention of the major policy driver behind the legislative framework, having regard to its bearing on the legislative architecture and the overall structure and "tone" of the new statutes. At the centre of the RTI Act is the policy of moving from a "pull' to a "push" model in relation to the release and disclosure of Government information. Underpinning the "push model" is the assumption that freely available Government information is a cornerstone of an open and accountable democratic system - the key element being that Government should be proactively and routinely releasing information to the public, independently from the previous reactive FOI-based information access and disclosure regimes.[19] The "push model" is not new, being largely reflected, for instance, in the information access regime established under the Official Information Act 1982 (NZ). However, the Queensland legislation, to date, represents the first operational example in Australia.
The need to move to a "push model"-based FOI regime was expressly supported by the Queensland Government in its response to the Solomon Review (Response) in the following terms:[20]
"..It is fundamental to an open and participatory Government that information is provided as a matter of course, unless there are good reasons for not doing so. The policy framework [establishing the RTI and IP Acts] will be based on guiding information policy principles, strategies and standards that position legislative access as the 'last resort' in accessing Government information. These information policy principles, strategies and standards will embed a right to information in the administrative practices and organisational culture of the public sector, so that providing information to Queenslanders is recognised as a legitimate and core aspect of every public servant's day-to-day work."
Recognising the virtues of the "push model", the next step for the Queensland Government was to re-design and reconceptualise the old FOI legislative framework so as to give effect to the goal of the proactive release of Government information. The result has been a radically different FOI framework under the RTI and IP Acts which, at a fundamental level, is structured so as to compel FOI decision-makers to consider whether information should be disclosed solely in the context of the public interest. As the core policy driver behind the RTI Act, the "push" model is reflected throughout the legislation - on both a broader structural level and in greater detail in respect of specific provisions. Key features of the new framework are described below.
A core reform under the RTI Act is the fundamental revision of the methodology to be adopted when determining whether access to a document can be refused (i.e. the exemption process). In this regard, the RTI Act reduces the number of 'stand alone' exemptions previously available and introduces a revised Public Interest Test which operates where a 'stand alone' exemption does not apply.
The general methodology adopted in redefining and restructuring the exemptions available under the RTI Act has been to frame the exemptions such that the key issue and basis for exemption is whether the release of the information would be contrary to the public interest. Broadly, this approach has provided that the exemption mechanism in the RTI Act consists of specific stand alone exemptions and a Public Interest Test that is to be applied to documents falling outside the stand alone exemptions in determining whether the relevant documents should be released.
The stand alone exemptions in the RTI Act consist of a number of categories of documents for which Parliament has determined that disclosure would be contrary to the public interest. Generally, the stand alone exemptions are those previously found in the FOI Act which were not subject to a public interest test. The Solomon Report referred to these exemptions as the "true exemptions".[21]
In considering the exemptions contained in the previous FOI Act and whether they should be retained in a new FOI model, the Panel actually considered whether there was, in fact, a public interest in ensuring that information falling within the categories of documents covered by these exemptions was not disclosed. In working through this process, the Panel largely recommended that the majority of the pre-existing or "true exemptions" be retained and adopted in the RTI Act on the basis that disclosure of these types of information would, in fact, be contrary to the public interest.
Notably however, the Panel did recommend that the Cabinet exemption in s.36 of the previous FOI Act be retained in an amended form ensuring that it contains a purposive element (that is, a connection between the creation of a document and its submission to Cabinet).[22] In this regard, the Panel recognised that there was a public interest in protecting Cabinet information from disclosure (so as to allow for robust and frank discussion which is necessary as Cabinet is the central deliberative body of the Executive Government) but concluded that the exemption in s.36 of the previous FOI Act was too broadly worded and had been abused by successive Governments as a mechanism to prevent the disclosure of otherwise available Government information.[23] The Queensland Government accepted these recommendations and adopted a revised, narrower Cabinet-based exemption.
The Panel also recommended the establishment of a new stand alone exemption for specific Ministerial documents including "incoming Minister briefing books and Parliamentary Question Time and Estimates briefing books".[24] The basis for this was a perceived public interest in Ministers receiving full and frank advice from Departments within their portfolio area via incoming briefing books. In other words, to subject such information to potential disclosure under the RTI Act could, it was said, lead to a reluctance to document frank advice and information.[25] The Queensland Government accepted this recommendation with an exemption in the RTI Act preventing the disclosure of "incoming Minister briefing books".[26] However, the Queensland Government did not adopt the recommendation of the Panel as to the scope of this exemption with the RTI Act exemption now only covering incoming Ministers and not Parliamentary or Estimate briefing materials.
In addition to the Cabinet and incoming Minister briefing book exemptions, other exemptions prescribed under s.48 and Schedule 3 of the RTI Act include:
• Executive Council information;[27]
• Information which if disclosed would found an action for breach of confidence;[28]
• Information which is subject to legal professional privilege;[29]
• Information revealing particular Sovereign communications;[30]
• Information, the disclosure of which would be a contempt of Court or Parliament;[31]
• National or State security information;[32]
• Law enforcement or public safety information;[33]
• Investment incentive scheme information;[34] or
• Information, the disclosure of which is prohibited by an Act.[35]
Importantly, section 47 of the RTI Act expressly states that the grounds under which access to information can be refused, including under s.48 and Schedule 3 of the RTI Act, are to be construed narrowly. Although this generally has been the approach adopted under the previous legislation by the Information Commissioners and the Courts, such a requirement is now expressly stated in the RTI Act. In addition, s.44 of the RTI Act also expressly states that the RTI Act is to be administered with a "pro-disclosure" bias.
These provisions, in conjunction with the revised exemption process and reduction in the number of stand alone exemptions provides an example of how the RTI Act has been drafted to reflect the "push model" and the expectation that Government information should generally be available unless it would be contrary to the public interest.
In addition to the stand alone exemptions established under s.48 and Schedule 3 of the RTI Act, s.49 and Schedule 4 of the RTI Act establish, as a stand alone exemption, the Public Interest Test. The Public Interest Test is the most significant change to Queensland's FOI regime, establishing a uniform and express procedure for implementing the test, which prescribes specific factors which are required to be considered.
Section 49 of the RTI Act sets out the process to be adopted when applying the new Public Interest Test - which is complex, requiring the decision maker to go through a series of specified steps to ensure that regard is had to a series of factors as set out in Schedule 4, Parts 1 to 4 of the RTI Act.
In general terms, the specific steps which a decision maker must take in applying the Public Interest Test are summarised as follows:
(a) Irrelevant considerations - the decision maker must identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including the factors set out in Schedule 4, Part 1 of the RTI Act.[36] These factors include:
• Disclosure of the information could reasonably be expected to cause embarrassment to, or loss of confidence in, the Government;
• Disclosure of the information could reasonably be expected to result in the applicant misrepresenting or misunderstanding the document;
• Disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant; or
• The person who created the document containing the information was, or is, of a high seniority within the relevant agency.
(b) Factors favouring disclosure - The decision maker must then identify any factor favouring disclosure that is relevant to the particular information. This includes (but is not limited to) the 19 factors mentioned in Schedule 4, Part 2 of the RTI Act. Some of these factors include:
• Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government's accountability;
• Disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest;
• Disclosure of the information could reasonably be expected to inform the community of the Government's operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;
• Disclosure of the information could reasonably be expected to ensure effective oversight of expenditure of public funds;
• Disclosure of the information could reasonably be expected to allow or assist an inquiry into possible deficiencies in the conduct or administration of an agency or official;
• Disclosure of the information could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;
• The information is the applicant's personal information;
• Disclosure of the information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;
• Disclosure of the information could reasonably be expected to reveal the reason for a Government decision and any background or contextual information that informed the decision;
• Disclosure of the information could reasonably be expected to contribute to the protection of the environment, or reveal environmental or health risks or measures relating to public health and safety;
• Disclosure of the information could reasonably be expected to contribute to the administration of justice generally or for a person; and
• Disclosure of the information could reasonably be expected to contribute to innovation and the facilitation of research.
(c) Factors favouring nondisclosure - The decision maker is then required to identify any relevant factors favouring nondisclosure. This includes (but is not limited to) the 22 factors prescribed in Schedule 4, Parts 3 of the RTI Act and the 10 factors prescribed in Schedule 4, Part 4 of the RTI Act. Examples in this regard include:
• Disclosure of the information could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of entities;
• Disclosure of the information could reasonably be expected to impede the administration of justice generally or for a person;
• Disclosure of the information could reasonably be expected to impede the protection of the environment;
• Disclosure of the information could reasonably be expected to prejudice the economy of the State;
• Disclosure of the information could reasonably be expected to prejudice trade secrets, business affairs or research of an agency or person;
• Disclosure of the information could reasonably be expected to prejudice an agency's ability to obtain confidential information;
• Disclosure of the information could reasonably be expected to prejudice the competitive commercial activities of an agency; and
• Disclosure of the information could reasonably be expected to prejudice a deliberative process of Government.
(d) Schedule 4, Part 4 of the RTI Act contains factors favouring nondisclosure in the public interest because of public interest harm in disclosure. Examples of these factors include:
• Disclosure affecting relations with other Governments;
• Disclosure of deliberative processes;
• Disclosing personal information;
• Disclosing trade secrets, business affairs or research;
• Disclosure affecting confidential communications;
• Disclosure affecting State economy; and
• Disclosure affecting financial or property interests of State or agency.
(e) Disregard irrelevant factors - Once all of the factors have been identified, the decision maker must disregard any irrelevant factor.[37]
(f) Balancing the factors - The decision maker is then required to balance the factors favouring disclosure against the factors favouring non disclosure.
(g) Decision - The decision maker must then decide whether, on balance, disclosure of the information would be contrary to the public interest. If after balancing the factors, it can be established that, on balance, the disclosure of the document or information would be contrary to the public interest, the decision maker can then refuse access to the information.
The Public Interest Test is therefore highly prescriptive in terms of setting out the process and specific factors that the decision-maker must have regard to in applying the test.
Collectively, the "true exemptions" in Schedule 3 of the RTI Act and the Public Interest Test prescribed under s.49 and Schedule 4 of the RTI Act have established a revised FOI exemption framework. The central component of this exemption framework being the issue of whether the disclosure of the information would be contrary to the public interest. Under this framework, some specific categories of information have been identified as being information which is not in the public interest to disclose. For information falling outside these categories, the Public Interest Test is the mechanism to apply to determine if this information should be disclosed. The use of the public interest as the central mechanism in determining the disclosure of information, at a fundamental level, has a link to the "push model" in the sense of the assumption that information should be freely available unless the disclosure of the relevant information would be contrary to the public interest.
Consistent with the push model and the requirement that as much information as possible be released to the public, the RTI Act also has exemption provisions in relation to Government commercial entities, in particular to Government Owned Corporations (GOCs).
As was the case with the revised exemption process detailed above, the scope of the exemption provided to GOCs has been dramatically narrowed under the RTI Act. Previously, GOCs were the beneficiaries of a broad exemption under s.11A of the FOI Act whereby documents created or received by a GOC when carrying on commercial activities were not subject to the FOI Act. In practice, this provided GOCs with an extremely broad exemption such that the only types of documents and information available from GOCs were those concerning employee related matters, and other non-commercial activities.
Furthermore, the nature of the exemption under s.11A of the FOI Act was such that it applied to documents, so that a document was exempt from the application of the FOI Act regardless of who had possession or control of the document. The nature of the exemption was particularly relevant to GOCs given that GOCs have extensive Government-based reporting obligations which require the provision of sensitive commercial information and documents to shareholding ministers and relevant Government Departments.
However, the RTI Act has radically changed the scope of the exemption available to GOCs and, for a number of GOCs, has dramatically increased their exposure to information access under the RTI Act. The new exemption process prescribed under the RTI Act operates on a fundamentally different basis. It provides that GOCs no longer uniformly receive the benefit of a GOC specific exemption under the RTI Act. Now only some GOCs benefit from an exemption similar to that previously provided under the FOI Act while other GOCs do not receive any specific exemption. The approach that the Government has adopted in determining whether GOCs are entitled to an exemption under the RTI Act is to consider whether the particular GOC carries out competitive commercial activities.
The approach of only providing an exemption under the RTI Act where the GOC carries out competitive commercial activities was recommended by the Panel[39] on the basis that there was a legitimate public interest in ensuring that Government businesses, including GOCs, that carried out competitive commercial activities were exempt from an FOI-based disclosure regime. In this regard, given that a particular Government entity would be competing directly with commercial service providers in carrying out particular functions, it was accepted that in order to enable the particular Government business to operate competitively in such an environment it would be necessary to provide the entity with an exemption in relation to those functions.[40]
The Government accepted the basis of this approach in identifying that only some of the current GOCs were to be provided with a GOC-based exemption. This has been reflected in the RTI Act and provides that some GOCs (being the State-owned electricity generators) have received an exemption in respect of the majority of their functions, while other GOCs have received no specific exemption other than the standard exemptions including those contained in s.48, Schedule 3 and the Public Interest Test of the RTI Act. The Government considered that these GOCs did not operate in a competitive commercial environment and therefore were not entitled to any type of exemption from the application of the RTI Act.
Another important point of difference with the new RTI approach to GOCs is that the exemption is no longer cast in terms of applying to documents. This means that as the exemption will no longer flow with the relevant document, the benefit of the GOC specific exemption will be removed once the document leaves the relevant GOC and is, for example, provided to a Government Department.
However, the Government has expressly preserved the old 'documents-based exemption' reflected in s.11A of the previous FOI Act in respect of documents received or created by GOCs prior to 1 July 2009. This means that the RTI-based exemption regime only applies to GOC documents created or received after 1 July 2009.
The practical effect of the revision of the GOC exemption under the RTI Act is likely to mean that a greater volume of documents that were previously exempt from disclosure under the FOI Act will now be subject to the RTI Act and potentially discloseable. Again, this revision is consistent with the "push model" in the sense that the ultimate impact of the revised exemption will be an increase in the number of Government documents available to the broader public.
A key component of the "push model" is the desire to effect a cultural change across the broader public sector in terms of how information is released and disclosed to the public. As explained, the revision of the exemption process is one means of facilitating such cultural change. Another is the inclusion of offence and disciplinary related provisions in the RTI Act.
Section 175 of the RTI Act establishes an offence in circumstances where a person gives a direction to an RTI decision-maker which requires the decision-maker to make a decision that the decision-maker considers should not be made under the RTI Act. This is an offence provision which attracts a fine of $10,000. The inclusion of such a provision in FOI legislation in Queensland is unique with no criminal offences previously prescribed under the FOI Act for such activities.
Section 113 of the RTI Act provides that where the Information Commissioner is of the opinion that there is sufficient evidence that an officer has committed a breach of a duty or misconduct in the administration of the RTI Act, the Information Commissioner is required to bring evidence of such a breach or misconduct to the attention of the principal officer of the agency (being the Director General or Chief Executive Officer) or, where the person in question is the principal officer, the responsible Minister of the agency. Again, the inclusion of such a provision in FOI-based legislation is unique with no similar provision previously included in the FOI Act for such activities.
The inclusion of provisions of this nature reiterates the "push model" by introducing cultural change-based mechanisms to ensure that cultural aspects of the "push model" are implemented across the public sector.
Under the RTI Act, the Information Commissioner has been provided with new functions and associated powers which provide the Information Commissioner with a quasi-regulatory role with respect to monitoring and enforcing the proper administration of the RTI Act.[41] In this regard, the functions of the Information Commissioner have been expanded beyond external review functions to now include a broad range of other functions, such as providing guidance on the interpretation and administration of the RTI Act, monitoring the way the Public Interest Test is applied by agencies, and monitoring, auditing and reporting on agencies compliance with the RTI Act.
Contrary to the position under the FOI Act, the Information Commissioner now has a role in terms of ensuring that the RTI Act is administered according to its proper purpose. This expanded role facilitates cultural change and again reflects the "push model", to the extent that the expanded functions of the Information Commissioner have been conferred in order to ensure that the key purposes of the RTI Act, being that as far as possible more Government information is provided to the public, is achieved in the administration of the RTI Act.
Reference was made earlier to the manner in which the RTI Act establishes a new Public Interest Test exemption. As stated, this is arguably the most innovative specific feature of the new FOI model and, as such, is worth considering in more detail.
The concept of 'public interest' has been a central feature of FOI legislation - the term often features in FOI objects clauses and, more particularly, underlies the operation of FOI exemptions.
In a broader sense, of course, the term ‘public interest’ has been employed in various areas of law - for instance, in the law concerning breach of confidence where certain 'public interest' defences may apply. The term is also commonly used in legislation - most commonly where a statute confers a regulatory function on a body or official, stipulating that the function must be exercised, or a decision made, based on, or having regard to, the ‘public interest.’[42]
Generally speaking, the term is not used in the sense of meaning particular private or individual interests. As Tamberlin J noted in McKinnon v Secretary, Department of Treasury,[43] the term is generally used to signify the interests of the public, the society or the nation - in other words, to incorporate an ideal relating to the overall or greater good of society. However, rather than being one homogenous concept, the term is multi-faceted, requiring a decision-maker to evaluate and weigh various facets of the public interest.[44]
In the specific context of FOI, the manner in which the concept of 'public interest’ should operate was originally considered by the 1979 Senate Inquiry, preceding the enactment of the Commonwealth FOI Act. The Senate Inquiry Report[45] acknowledged the dangers of including the term in FOI legislation - that its amorphous and ill-defined nature meant that it was quite capable of being subject to the interpretative whim of Ministers or public officials.[46] However, drawing an analogy with the High Court decision in Sankey v Whitlam[47] (which involved reconciling a claim by Government for public interest immunity in response to a request for discovery of documents), the Report saw value in the term being utilised in FOI as a balancing mechanism to enable the interests associated with an FOI applicant's 'right to know' to be properly measured against competing interests against disclosure.
The term ‘public interest’ has served a specific function in FOI legislation - in particular, in relation to the operation of FOI exemptions, where it has acted as a mechanism for balancing relevant interests for and against disclosure in respect of the kind of documents to which the exemption relates. Also, in some jurisdictions, FOI legislation provides external review bodies with a 'public interest override' so that, in addition to the usual exercise of merits review, the appeal body can consider whether or not the public interest requires access to an exempt document.[48] This means that in addition to its normal 'merits review' jurisdiction, the review body enjoys a power to determine whether or not the public interest requires access to an exempt document.
Of course, not all FOI exemptions have expressly incorporated a public interest test. Where none is included, access is excluded immediately upon establishing that the request relates to the type or category of documents to which it applies - without the need to weigh public interest arguments for and against disclosure.[49] These types of exemptions are essentially ‘class exemptions' which reflect a legislative intention that the public interest in non-disclosure is paramount.
In exemptions which have expressly included a public interest there have been differences in the way in which it has been legislatively deployed.[50] Some exemptions have specified that the public interest test is a separate and additional requirement which an agency or Minister must establish to successfully invoke the exemption. This meant that it was not sufficient for an agency to establish that the requested documents are of the type to which the exemption applies – it was also necessary to establish that disclosure would be contrary to the public interest (e.g. ‘a document is exempt if its disclosure would reveal the deliberations of an agency and would be contrary to the public interest'). Exemptions which have contained this type of public interest test have been more closely aligned with the underlying 'right to know' philosophy because satisfaction of the document description component did not create a presumption that the documents are exempt.[51]
However, most exemptions with a public interest test have utilised it in the form of a proviso (e.g. ‘a document is exempt if its disclosure would reveal information of commercial value to another person unless on balance its disclosure would be in the public interest). Here, once the agency established that the requested documents were of the type to which the exemption applied, they were prima facie exempt, subject to the application of the public interest test. This meant that the FOI applicant had to bear an evidentiary burden to adduce relevant public interest arguments in favour of disclosure, sufficient to overcome those against, inherent in the exemption itself. As well as this, some exemptions have incorporated a test not specifically using the term 'public interest' but requiring decision-makers to determine whether disclosure would be 'unreasonable.'[52]
Finally, some exemptions have included a test which, whilst not expressed as a public interest test, requires consideration of whether disclosure of particular kinds of documents is reasonably likely to result in prejudice or 'harm' of a certain kind.
In terms of the application of the FOI public interest test, in Director of Public Prosecutions v Smith,[53] the Full Court of the Supreme Court of Victoria said that in the context of FOI, the term ‘public interest’ refers to "standards of human conduct and of the functioning of Government…the interest of the public, rather than the interest of the individual or individuals." [54] Conversely, according to the Court, it does not relate to "that which gratifies curiosity or merely provides information or amusement." [55]
Ultimately, the function of the public interest test in FOI exemptions was always to achieve the right balance between the 'right to know' and the protection of legitimate Government and private interests. In practical terms, the decision-maker must evaluate multiple and sometimes competing interests and, at the risk of generalisation, these can be characterised as falling under two broadly competing heads: the desirability of individuals being able to access Government information and the need to avoid harm to recognised Government interests or third party private or commercial interests which is likely to result from disclosure. [56]
The original FOI model never provided any specific guidance as to how FOI decision-makers were to deploy the public interest balancing test in exemptions and, to the extent that case law has been any guide, it has revealed different approaches.[57] Whilst it is generally accepted that public disclosure of certain kinds of information held by Government can be prejudicial to broader community and state interests or to the private or commercial interests of individuals, the difficulty lay in attempting to achieve the correct balance in particular cases, especially where decision-makers had to weigh multiple and competing interests. In one sense, the issue has been what level of specificity is required of agencies and Ministers in claims that disclosure would be contrary to the public interest. Some authorities have suggested that broad and general assertions suffice,[58] whilst other cases indicated that such claims must be based on specific evidence concerning the particular documents in question which defines the likely consequences of their disclosure. Cases of this kind rejected the idea that the public interest against disclosure was made out simply by asserting that disclosure could mislead or confuse the public or inhibit candour and frankness in the expression of views by Government officials[59] and, in fact, some Australian FOI jurisdictions legislated to make it clear that reliance on generalities of this nature would not suffice. [60]
In some exemptions, the application of the public interest test has been more controversial than in others. This was especially so in the case of the 'deliberative process documents' exemption where there have been marked differences of view in the case law. In Re Howard and the Treasurer of the Commonwealth,[61] (a decision published early in the life of the FOI Act (Cth.)), Davies J. listed five criteria (subsequently referred to as the ‘Howard criteria’) which were intended to provide guidance in determining whether or not disclosure of documents revealing an agency's deliberative processes would be contrary to the public interest: (i) the higher the office where the deliberation occurred and the more sensitive the issues involved, means that it is more likely that the communication should not be disclosed; (ii) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest; (iii) disclosure which would inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest; (iv) disclosure, which would lead to confusion and unnecessary debate about the possibilities raised in the deliberative process, tends not to be in the public interest and (v) it is not in the public interest to disclose documents which do not fairly reveal the reasons for a decision subsequently taken, which may be unfair to a decision-maker and which may prejudice the integrity of the decision-making process.
The Howard criteria received qualified approval in some subsequent cases[62] but were the subject of direct criticism in others;[63] the most comprehensive critique occurring in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs[64] where they were bluntly described as "ill-advised". [65] Re Eccleston rejected the idea that the level of Government involved in deliberations should, in itself, establish a presumption that disclosure would be contrary to the public interest. Moreover, the 'candour and frankness' argument was criticised as little more than a thinly disguised 'class claim' - something which was completely contrary to the very purpose of FOI. Finally, the idea that it is in the public interest not to expose the citizenry to complex ideas lest they become confused was roundly criticised as either elitist or based upon a misplaced sense of paternalism. In some FOI jurisdictions, provisions were adopted to specifically limit the relevance of the Howard criteria[66] but in other jurisdictions the extent of their relevance remained uncertain.[67]
Finally and from a broader perspective, the old scheme of FOI exemptions - with some incorporating a public interest test, has been criticised as excessively legalistic and inconsistent with the underlying objectives of FOI. As early as 1995, some law reform bodies pointed out that the format encouraged Government agencies to ‘look for’ an exemption to fit the FOI request, rather than focusing on the fact that the legislation establishes a prima facie right of access.[68]
As explained earlier, the Public Interest Test is highly prescriptive in terms of detailing how the test is to be applied and what factors are to be considered in applying it. In essence, the Public Interest Test contained in the RTI Act represents the high water mark in terms of statutorily prescribed public interest tests. Given its novel nature, the important issue now is how it will be applied and what will be the associated difficulties once the test is applied in practice.
One issue of concern is that the high degree of prescription in the Public Interest Test will have the effect of limiting an RTI decision-maker's discretion. In response to this issue, it should be noted that the factors prescribed in the Public Interest Test are not exhaustive and the decision-maker may take into account other factors that they identify as being relevant. The other mechanism to offset these concerns is the discretion afforded to the decision-maker in allocating the weighting to be awarded to each of the relevant factors in applying the Public Interest Test.
The highly prescriptive nature of the statutory directions in the RTI Act as to how the Public Interest Test is to be applied and the express listing of relevant and irrelevant factors calls to mind the two related and important grounds of judicial review concerning the exercise of discretionary powers: a failure to take account of a relevant consideration and taking account of an irrelevant consideration.[69] Of course, internal and external FOI review mechanisms are of the nature of 'merits review', as opposed to judicial review. Nonetheless, indicators from the case law concerning the manner in which these two grounds of judicial review operate provides some general insights for the task of FOI decision-makers faced with the somewhat complex task of applying the RTI Public Interest Test.
The leading Australian authority is Minister for Aboriginal Affairs v Peko Wallsend Ltd [70] and as the decision explains, where statutory powers or functions are concerned, the first thing is to examine the legislation. In the case of taking account of an irrelevant consideration, a certain degree of guidance is provided for FOI administrators by the provision of an express statutory list in the RTI Act of irrelevant factors. Beyond that however, the possibility of other factors, arguably irrelevant, being taken into account, is present. In that respect, as Peko Wallsend explains, it is necessary to identify the considerations that were taken into account and then determine which ones were irrelevant, having regard to the subject, matter, scope and purpose of the statute. [71]
In the case of failure to take account of a relevant consideration, the ground is made out where it is possible to show that the decision making body failed to take account of a matter which it was bound to consider, as opposed to something it was entitled to consider.[72] A major issue however, is the need to demonstrate an actual failure on the part of the decision maker to take account of the matter [73] and, as the Peko Wallsend Ltd [74] decision explains, where a statute (such as the RTI) provides an inclusive (as opposed to an exclusive) list of relevant considerations, it will be necessary to determine what, if any, additional considerations are impliedly specified by the statute, having regard to the subject matter, scope and purpose of the legislation.[75]
In this respect, many of the public interest factors listed in the RTI as relevant to consider are expressed in broad and all-encompassing terms. Accordingly, where there is evidence that the decision-maker has taken account of the relevant listed factors, it would be difficult to establish the existence of additional factors, implied by the legislation, which were not taken into account. Moreover, as the case law shows, it is not enough to simply establish that the decision-maker failed to take account of a relevant consideration - it must also be shown that the consideration was significant enough to "materially affect the decision".[76]
Finally (and importantly in the context of FOI decision-makers faced with this complex statutory task) Peko Wallsend made it clear that unless the statute declares otherwise, the appropriate weight to be given to relevant matters is for the decision maker, not the Court.[77] Accordingly, in our view the Public Interest Test will allow for a degree of flexibility to decision-makers in terms of the weighting which the decision-maker is able to allocate to specific factors in applying the test. In this regard, where judicial review becomes relevant, Courts are unlikely to go behind the decision-maker and consider the legality of weightings applied to such factors by decision-makers unless the weightings provided to specific factors appears to be manifestly unreasonable.[78]
These are issues for further consideration and are likely to be considered in the context of the RTI Act once the Act has been in operation for a time and the Public Interest Test is considered in the context of judicial review proceedings.
[*] Bill Lane is Clayton Utz Professor of Public Law, QUT and Eleanor Dickens is Senior Associate, Clayton Utz, Brisbane. This paper was presented at the 2009 AIAL National Administrative Law Forum, Canberra, 6 August 2009.
[1] See in particular, Australian Law Reform Commission and Administrative Review Council Open Government: A Review of the Federal Freedom of Information Act 1982, Report No. 77, 1995; Administrative Review Council, The Contracting Out of Government Services, Report No. 42, 1998; Commonwealth Ombudsman, Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, 2006.
[2] FOI does not apply expressly and directly to the private sector although documents held by private service providers may be accessible under FOI, depending on whether specific provisions provide for that or whether the relevant FOI provisions relating to “possession” by Government agencies allow for such as finding.
[3] For a good example, see Re Wanless Wastecorp and Caboolture Shire Council (2003) 6 QAR 242.
[4] See eg. Lane, B. et al, 'Freedom of Information Implications of Information Sharing Networks for Critical Infrastructure Protection', (2008) 15 Australian Journal of Administrative Law 193, White, L. 'The Need for Governmental Secrecy : Why the US Government must be able to Withhold Information in the Interest of National Security', (2003) 43 Virginia Journal of International Law 1071.
[5] See eg. Roberts, A, 'Administrative Discretion and the Access to Information Act: "Internal Law" and Open Government' (2002) 42 Canadian Public Administration 174. The author provides an account of what he describes as 'contentious issues management' in Government agencies in Canada.
[6] See for instance NSW Ombudsman Opening Up Government - Review of the Freedom of Information Act 1989 (Feb. 2009) at 3.6.5. See also comments made in the NSW Ombudsman's Annual Report 2001-2002 (at p.73) which raised concerns about the differential handling of FOI requests - referred to in Snell R: “Contentious Issues Management – The Dry Rot in FOI Practice?” (2002) FOI Review 62; Report of the Commission of Inquiry into Bundaberg Hospital (Queensland Health 1996) - which referred to the existence of a particular practice engaged in by senior officials within the Queensland Department of Health to thwart FOI disclosure of documents recording surgery waiting times in public hospitals by invoking the ‘Cabinet documents’ exemption after forwarding the requested documents to Cabinet with an accompanying submission.
[7] For instance, under the FOI Act (Cth.), certificates issued by a Minister were possible in relation to exemptions contained within s.33 (international relations), s.33A (interstate relations), ss.34-35 (Cabinet/Executive Council documents) and s.36 (deliberative process/internal working documents).
[8] See eg. Electoral and Administrative Review Commission (EARC) Report on Freedom of Information (1990), paras 7.300-7.323 - urging that the conclusive certificate mechanism be confined to the 'Cabinet/Executive Council' documents exemptions and furthermore, that the power to issue a certificate be confined to the State Premier. (The recommendation was not followed in the original Freedom of Information Act 1991 (Qld.)).
[9] See eg. Re Waterford and Treasurer (No.2) (1985) 8 ALN N47; Australian Doctors Fund Ltd v Commonwealth [1994] FCA 1053; (1994) 49 FCR 478; Neary v Treasurer of NSW [2002] NSWADT 261; Re Fagan and Minister for Justice and Attorney-General [1995] QICmr 15; (1995) 2 QAR 583 at [26] ff.).
[10] Department of Industrial Relations v Burchill [1991] FCA 616; (1991) 33 FCR 122 per Davies Jenkinson and Ryan JJ., citing earlier authorities. See also McKinnon v Secretary of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 per Jacobsen J, but note also comments by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [120].
[12] McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [131].
[13] McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at [60].
[14] This legislation was in the form of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008.
[14] Report by the FOI Independent Review Panel, June 2008 (State of Queensland (Department of Justice and Attorney-General) 2008).
[15] Special Report to Parliament under s.31 of the Ombudsman Act 1974 (NSW).
[16] Open Government Information Bill 2009 and Information Commissioner Bill 2009.
[17] Department of Justice, Strengthening Trust in Government - Everyone's Right to Know - Review of the Freedom of Information Act 1991 Directions Paper, 2009.
[18] Foreword to the Department of Justice, Strengthening Trust in Government - Everyone's Right to Know - Review of the Freedom of Information Act 1991 Directions Paper, 2009.
[19] See the Solomon Report at pages 16-18.
[20] The Right to Information - A Response to the Review of Queensland's Freedom of Information Act, Queensland Government at page 6.
[21] See the Solomon Report, page 2.
[22] See the Solomon Report at pages 106-121.
[23] See the Solomon Report pages at 106-121.
[24] See the Solomon Report pages at 123-128.
[25] See the Solomon Report pages at 123-128.
[26] See the Solomon Report pages at 123-128.
[27] Section 3, Schedule 3 of the RTI Act.
[28] Section 8, Schedule 3 of the RTI Act.
[29] Section 7, Schedule 3 of the RTI Act.
[30] Section 7, Schedule 3 of the RTI Act
[31] Section 6, Schedule 3 of the RTI Act.
[32] Section 9, Schedule 3 of the RTI Act.
[33] Section 10, Schedule 3 of the RTI Act.
[34] Section 11, Schedule 3 of the RTI Act.
[35] Section 12, Schedule 3 of the RTI Act.
[36] Section 49(3)(a) of the RTI Act.
[37] Section 49(3) of the RTI Act.
[38] For the purposes of this paper, we note that the meaning of the term Government Owned Corporation is that as it is prescribed under the Government Owned Corporation Act 1993 (Qld) and the Government Owned Corporation Regulation 2007 (Qld).
[39] See the Solomon Report at pages 88 to 90.
[40] See the Solomon Report at page 88.
[41] These functions and powers are prescribed under Chapter 4 of the RTI Act.
[42] See eg. O’Sullivan v Farrer [1978] HCA 43; (1978) 142 CLR 1, where a majority of the High Court (referring to Water Conservation and Irrigation Commission (N.S.W) v Browning (1947) 74 CLR per Dixon J at p.505) observed that the legislative use of the term 'public interest' allows for a “discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…”.
[43] [2005] FCAFC 142; (2005) 145 FCR 70.
[44] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at 75-6.
[45] Report of the Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information Bill 1978 (1979).
[46] Report of the Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information Bill 1978 (1979) at p.64.
[47] [1978] HCA 43; (1978) 142 CLR 1.
[48] See eg. FOI Act (Vic), s.50(4) in relation to the powers enjoyed by the Victorian Civil and Administrative Tribunal (VCAT), as explained in Re Hulls v Victorian Casino and Gaming Authority (1997) 11 VAR 213 at 222ff, and Secretary to Department of Premier and Cabinet [1999] VSCA 117; (1999) 3 VR 331. Note also FOI Act (NSW), s.57 in relation to the power of the NSW Administrative Decisions Tribunal (NSWADT) to determine whether the grounds relied upon in determining that a documents is a restricted document are reasonable or not, as explained in BY v Director General, Attorney General's Department [2002] NSWADT 79.
[49] For example, the exemption in FOI Act (Cth.), s.34 (protecting documents revealing the deliberations of Cabinet or the Executive Council or s.42 (protecting documents falling within the operation of legal professional privilege) and the equivalent exemptions in other FOI jurisdictions.
[50] The FOI Act (Cth.) provided the original model for the manner in which public interest tests are incorporated in exemptions - for an early description, see Re Mann and Australian Taxation Office (1985) 7 ALD 698 at 710ff. For a more recent and comprehensive account, see Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60.
[51] See the discussion in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60.
[52] For instance, FOI Act (Cth.), s.41 requires an FOI decision-maker to decide whether or not granting access to 'personal information' about another person would constitute "unreasonable disclosure". However, this appears to incorporate a test of the same nature as that which exists in other exemptions which use the term ‘public interest’ – see Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111, per Lockhart J; Re Williams and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) ALD 219; (1985) 3 AAR 529, per Beaumont J, and Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at para 14.
[53] [1991] VicRp 6; [1991] VR 63 (Kaye, Fullarton and Ormiston JJ.)
[54] Director of Public Prosecutions v Smith[1991] VicRp 6; [1991] VR 63 at 75 and referred to with approval by Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at 76.
[55] Director of Public Prosecutions v Smith[1991] VicRp 6; [1991] VR 63 at 75.
[56] See Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at 72ff. See also McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70, per Conti J (in dissent) at 78ff.
[57] Different views about the scope and application of the public interest test in relation to Government interests are discussed at length in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60.
[58] Re Howard and Treasurer of Commonwealth of Australia [1985] AATA 100; (1985) 7 ALD 626.
[59] The issue arose as a matter of contention following the decision in Re Howard and Treasurer of Commonwealth of Australia [1985] AATA 100; (1985) 7 ALD 626, concerning the public interest test in the 'internal working documents exemption' in s.36 of the FOI Act (Cth.). Re Howard has been the subject of particular criticism and has not been uniformly followed in all other jurisdictions. See, in particular, Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60. The issue is explained again, later in relation to the operation of the 'deliberative process/internal working documents' exemption.
[60] FOI Act (NSW) s 59A.
[61] [1985] AATA 100; (1985) 7 ALD 626.
[62] Such as Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589; Re Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709 and Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 20; (1990) 20 ALD 264.
[63] See especially Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at 99ff. See also Edlund v Commissioner of Police [2003] NSWADT 195.
[64] [1993] QICmr 2; (1993) 1 QAR 60. See also Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206.
[65] Re Eccleston and Department of Family Services and Aboriginal and Islander Affair [1993] QICmr 2; (1993) 1 QAR 60 at 99.
[66] See eg. s59A of the FOI Act (NSW).
[67] See eg. the discussion in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142.
[68] See, e.g. ALRC 77/ARC 40, 1995 at para 8.2.
[69] Under systems of statutory judicial review, see ADJR Act (Cth) s.5(2)(a); JR Act 1991 (Qld) s.23(a); JR Act (Tas) ss 20(a) and (b); ADJR Act (ACT) ss 5(2)(a) and (b).
[71] Minister for Aboriginal Affairs v Peko Wallsend Ltd 1986) 162 CLR 24 at 40-41.
[72] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, per Deane J at 374
[73] Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action (3rd ed, Law Book Company, 2004) p 254.
[75] (1986) 162 CLR 24 at 40.
[76] (1986) 162 CLR 24 at 40.
[77] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41. Note Mason J's comment that failure to give adequate weight to a relevant consideration may give rise to Wednesbury unreasonableness.
[78] See for example Telstra Corporation Ltd v the Australian Competition and Consumer Commission [2008] FCA 1758.
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