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High Court of Australia Transcripts |
Melbourne No M63 of 2001
B e t w e e n -
PETER ROGER SHERGOLD, AS DELEGATE OF PETER KEASTON REITH, MINISTER OF STATE FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS
Appellant
and
LINDSAY TANNER
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 15 NOVEMBER 2001, AT 10.22 AM
Copyright in the High Court of Australia
MR A.L. CAVANOUGH, QC: I appear with my learned friend, MS W.A. HARRIS, for the appellant. (instructed by Australian Government Solicitor)
MR K.H. BELL, QC: If the Court pleases, I appear on behalf of the respondent with my learned friend, MR S.G.E. McLEISH. (instructed by Maurice Blackburn Cashman)
GLEESON CJ: Yes, Mr Cavanough.
MR CAVANOUGH: In this matter the drafting positions of the parties might be stated as follows. The appellant says that a certificate under sections 33A or 36 of the Freedom of Information Act 1977 if regular on its face establishes conclusively, subject only to Part VI of the Act, that the relevant document has the certified characteristics.
McHUGH J: But that is not the issue, is it? The issue as stated in paragraph 1 of your submissions is not the issue at all in the case. Surely the question is whether the certificate is immune from judicial review. That is the issue in the case, not whether the certificate is conclusive. Your opponent does not suggest otherwise than conclusive. So long as they cannot be reviewed or being reviewed, they are not challenged. It is quite misleading to state that the issue is whether or not a conclusive certificate is conclusive. Of course it is conclusive. The question is whether it can be reviewed.
MR CAVANOUGH: The question is, in my respectful submission, whether any of the grounds that are advanced are grounds that are able to be entertained in a challenge to a certificate of this kind.
KIRBY J: This is the debate, this is the realm of debate?
MR CAVANOUGH: Yes, your Honour.
KIRBY J: It is important, as Justice McHugh has said, to get the actual issue clear at the outset and the respondent says that your ground of appeal accurately states the issue, but your argument does not.
GUMMOW J: We went through all this, and there was a special leave question that was formulated by the Bench, I think, after some difficulty, but is that not right, is not what Justice McHugh says right? That is why the question was formulated that way after a lot of toing-and-froing.
MR CAVANOUGH: Your Honour, with respect, I would submit it is two different ways of looking at the same question and Justice Burchett's approach is one approach to the problem and the majority approach, although they differ between themselves, is another approach to looking at the problem. We submit that Justice Burchett's approach is correct and that the judgments of the majority are not correct. If I can - - -
McHUGH J: Justice Frankfurter once said the answer you get depends upon the question you framed, and there could only be one answer to the question you have framed and that would be "yes". It does not seem to me it is the issue.
MR CAVANOUGH: Your Honour, if - - -
KIRBY J: We are just trying to give you a few helpful points at the beginning of the case to help you on your way.
MR CAVANOUGH: If your Honour pleases, thank you very much.
MR CAVANOUGH: If your Honour pleases, thank you very much.
HAYNE J: And you may take "on your way" in whatever sense you like.
MR CAVANOUGH: Perhaps if I can put it this way, that, in our submission, one simply cannot go behind the certificate to inquire into the process, or the reasoning, involved in the decision to issue it, that there is a clear policy reason evident in the Act for that, that would unduly risk disclosure of the very thing said to be secret. Whereas the respondent says, as we understand it, that a certificate establishes that the document has the certified characteristics subject to Part VI and not conclusively but only if the Minister gave a fair hearing, was not biased, there is no appearance of bias, he had some evidence before him, he had a proper purpose, he did not act under dictation, he took all relevant considerations into account, he took no irrelevant considerations into account, he acted in good faith, and the decision was not manifestly unreasonable and my learned friend further says it is permissible for the Court to have a factual inquiry into all of those matters.
GUMMOW J: I get a little angry about this. The order in the appeal book at pages 203 and 204 does not reflect what was said in the transcript for the grant of special leave at page 15. It does not set out the particular question that is there framed. To find it you have to go to the ground of appeal, but the fact is the ground of appeal at 205 is the only ground upon which leave was granted. Those drawing out these orders should do it with some exercise of their brain power. Anyhow, the point is that all you have leave on is the ground appearing under the heading 2 on page 205. That is the subject matter we have.
MR CAVANOUGH: Yes, I must confess, your Honour, I did not understand that there was any - - -
GUMMOW J: Well, I am not going to waste any more time debating it.
MR CAVANOUGH: If your Honour pleases.
GUMMOW J: I have made my point.
MR CAVANOUGH: Yes. Your Honour, it is plain from the appeal book that the respondent proposes to conduct a vast factual case challenging the certificate on all of the grounds that I have just mentioned, or on all the bases I have just mentioned.
KIRBY J: But is not the point the respondent makes, that "Amen to all that" because they are the normal incidents of judicial review? The Parliament could have excluded that, so it is said in their argument. The Parliament could have said that the making of this - giving of the certificate is, itself, immune - - -
MR CAVANOUGH: That is their argument, your Honour.
KIRBY J: - - - but it did not do so and, if it does not do so, first of all there is no basis for a court to do it if the Parliament has not done it and, secondly, there are good and sound reasons of principle why a court should not do it and invent it and slip it in when the Parliament has not done it because courts are vigilant to maintain judicial review of administrative decisions. That is the way our Constitution works.
MR CAVANOUGH: I understand exactly that that is the way the argument is put against us, but, nonetheless, we submit that, at the end of the day, it is a matter of statutory construction. Those grounds are potentially available as judicial review grounds across the broad spectrum of administrative law matters, if one likes, but in each particular case one must read the statute to see what it is that Parliament has set up, what kinds of defaults, if any, would attract invalidity in the resulting action and we respectfully submit that here the intent is manifest that none of those kinds of circumstances were intended by Parliament to be capable of being inquired into or capable of causing the setting aside as invalid of a certificate issued under either of these provisions and essentially for the reasons Justice Burchett sets out in his Honour's dissenting decision.
As I respectfully further submit, it is plain that that must be so where some of those grounds of their nature in other contexts could not be applicable because they are just of no relevance to the particular kind of decision. But beyond that, here one has a most precise scheme set up. It is a new statutory creation, the Freedom of Information Act as of 1982. It grants some benefits, but they are limited benefits and there are careful safeguards in place to make sure that there will not be any inquiry into information in the hands of government beyond that which the Act provides for and the Act makes the most careful provision in relation to Administrative Appeals Tribunal review of matters involving conclusive certificates which would be set at nought if they could be outflanked by an application for judicial review of the kind that is - - -
HAYNE J: The propositions that they can be set at nought or outflanked, though good mouth-filling propositions, are not self-evident to me at least. You should not assume that it is self-evident that permitting review of the decision to issue such a certificate necessarily, as you say, sets at nought the statutory scheme.
MR CAVANOUGH: Perhaps I could try to make the point good by the example from this very case of the very sorts of things the respondent contends that the respondent is free to do in this case. Perhaps I could take the Court to the appeal book, commencing at page 43. That is where one gets to part C of the respondent's contentions which he puts forward as the particulars of his grounds of review.
Now, when one reads those paragraphs, particularly paragraph 6, which says that:
The Schedule attached to these contentions sets out the relevant circumstances relating to the waterfront dispute. Each of the matters there set out is referred to and relied upon as though contained within the body of these contentions. The matters there set out are relied on for the purpose of demonstrating the truth of the contentions there referred to and/or in the alternative for the purpose of demonstrating the fact that those contentions are in the public domain and have wide currency among the public and appear to have been made on a reasonable factual foundation.
Then, in part D, there is a series of allegations, firstly, said to be true, or, alternatively, in the public domain. The respondent proposes to prove all of this, he says. There is a reference to an alleged "strategy", and if one looks at the last line of (i) on that page, a strategy:
utilizing the consultants and the reports provided by them.
The very documents that are in issue.
HAYNE J: Now, all of that may be material that might be of importance, were there a review of the merits of the decision. Is that what is envisaged?
MR CAVANOUGH: When one reads the grounds, they include every considerable ground - - -
HAYNE J: Let it be assumed, for the purpose of debate only, that the application were to be cast simply as a fishing expedition with no particularity at all. Let us make that assumption without regard to whether that is an apt or accurate description of this application. That might suggest to a court that at some point, probably fairly early in the process, it might be desirable to have a few particulars and it might be desirable to nail an applicant to the wall of the case that he or she seeks to make. But what does that say, if anything, about what seems to be the fundamental proposition you advance that to permit judicial review of the decision sets at nought the statutory scheme encompassed by the FOI Act?
MR CAVANOUGH: Well, we respectively submit that - - -
HAYNE J: It says that people will test the boundaries. Well, we know that.
MR CAVANOUGH: But, your Honour, the Act says that a certificate establishes conclusively the exempt status of the document or the characteristic to disclose it would be contrary to the public interest. That is what it says.
McHUGH J: That assumes that the certificates are valid. Supposing it is forgery, it establishes nothing. Arguably on one view, if the Minister has made a decision because he has misunderstood the law, then it is a nullity as well, or it is of no effect. You have to go so far as to say that by necessary implication the FOI takes away the ordinary power of judicial review. That is a fairly large proposition.
MR CAVANOUGH: Yes, your Honour, but it is a proposition that his Honour Justice Burchett accepted.
McHUGH J: I understand.
MR CAVANOUGH: In my respectful submission, when one steps back and contemplates the particular statutory scheme and sees that it is really quite unique, it sets up an entitlement that was no doubt controversial at the time as to whether it should be set up at all - that is to say, the granting for the first time quite, if you like, contrary to the Westminster system as it previously operated, a right subject to the Act and as defined in the Act for any member of the public to obtain access merely for the asking to government documents, save exempt documents. It is not surprising that as part of the safeguards that were built in in that scheme, Parliament gave an unreviewable power to Ministers only or their principal - that is to say, the head of a department only. That is the only person to whom the power can be delegated.
McHUGH J: But, you see, what is put against you or what can be put against you is what is surprising, if that was what the Parliament intended, they did not exclude judicial review. For example, they did not exempt these decisions specifically from the AD(JR) Act or that they did not contain a provision specifically excluding judicial review from this Act. Do you not have to take us through the FOI legislation to indicate that its scheme is totally inconsistent with any notion of judicial review, so that by necessary implication you are forced to the conclusion that judicial review is excluded.
MR CAVANOUGH: Yes, indeed, your Honour, that is the task.
McHUGH J: I do not think you assist your case by taking us to this or that particular. They seem to me to be points of prejudice really.
MR CAVANOUGH: But, your Honour, with respect, they illustrate, perhaps in a very stark way relevant to these very documents, what the consequences of my learned friend's approach would be.
KIRBY J: You have opened in a general way, but I think we just have to take a plunge into the FOI Act and look at all of the provisions, as Justice McHugh has said, and see whether, there being no express exemption or exclusion, it fits within the implied exclusion because of the whole scheme, total effect of the Act. We just have to do it.
MR CAVANOUGH: Yes, that must be what it comes down to.
McHUGH J: It cannot depend upon what this particular applicant does or what his motivation is. It has to depend upon the scheme of the legislation itself.
MR CAVANOUGH: That is so, your Honour, but - - -
HAYNE J: And has to be tested, does it not, against the sort of case where, if you take 33A(1)(a), where a document can be certified, about "damage to relations between the Commonwealth and a State", a case where, for example, the certifying person wrongly assumes that that extends to relations between the Commonwealth and a self-governing Territory. Is that not to be capable of review? Your proposition is, as I understand it, that that is not capable of review.
MR CAVANOUGH: Your Honour, if, on the face of the certificate - - -
HAYNE J: No, not on the face of the certificate, but the certificate is cast in terms that are apt to the section but extraneously it emerges that the motivating reason is damage to relations between Commonwealth and Territory.
MR CAVANOUGH: Yes, I understand that, your Honour. Our respectful submission is that Parliament has taken that minor risk - it is a minor risk in the circumstances - and the alternative was to leave open a much more unpalatable set of possibilities in terms of what kind of inquiries could be made into the contents of the documents, the very thing that is secret, and associated matters.
KIRBY J: Could I just ask you before we leave forever the express exclusion, because if we conceptualise it there is an express exclusion, then there is the implied in the scheme of the Act. Are there provisions in either the AD(JR) Act or the FOI Act which say that a document is excluded and the decision as to whether the document is excluded is itself excluded? Are there precedents for Parliament approaching the matter in that way, because that would be against you if there are such - - -
MR CAVANOUGH: Yes.
KIRBY J: I had a recollection with extradition there is something like that, but whether it is so or not, I would like to know whether there is the double whammy, in a sense.
MR CAVANOUGH: I see, is there an omission, an eloquent omission?
KIRBY J: Yes.
MR CAVANOUGH: Your Honour, I do not know, but I will ask the Commonwealth persons instructing me to make a search and let the Court know.
KIRBY J: It would not be all that difficult to enact a provision saying that the certificate is exempted and the decision whether to grant the certificate or not is itself exempted. It would not be difficult to word it.
MR CAVANOUGH: Your Honour, we respectfully submit that would be superfluous really.
KIRBY J: You say so but - - -
MR CAVANOUGH: It depends on what the certificate certifies, perhaps, but it may well be superfluous. This argument is put against me in respect of the Tax Act and our reliance on Richard Walter and Bloemen's Case, but it is misconceived, with respect, the way it is put - - -
KIRBY J: Do not go into that now. You will deal with that in your own good time. I think we have just got to plunge into the Act.
MR CAVANOUGH: Yes. Your Honour, I should say in answer to your Honour Justice Hayne, one of the obligations on the Minister in signing a certificate under section 33A is to specify in the certificate itself the reason relied upon and that, at least, provides some discipline on the certifier. It would be rather unlikely given that requirement.
GUMMOW J: Where do we see that?
MR CAVANOUGH: In section 33A(2).
GUMMOW J: "Specifying that reason".
MR CAVANOUGH: Similarly, in section 36 there is an obligation on the certifier to specify in the certificate the ground of public interest in relation to which the certificate is given and, accordingly, that was done here. There were, in fact, 10 grounds specified in the certificate.
KIRBY J: But that does not get away from Justice Hayne's question because the Minister, or those advising him or her, might simply set out the statutory formula. If they are wise, they would do something like that. But then the Minister might have given an interview or said something in Parliament or a document might have fallen off the back of a truck which suggests that the Territory has been taken into account and that that has been the focus and then you have presented quite starkly. Is a court then completely kept out of that and cannot review it, or can a court then go in to see whether there is, as it were, a fundamental flaw in the certificate, in the making of the decision to grant the certificate as distinct from - - -
MR CAVANOUGH: Yes, but that could not happen, at least in respect of section 36, because one could not just recite statutory formula there. One has to spell out the ground of public interest that is relied upon. There is no statutory phrase to parrot.
GUMMOW J: Now, why is not subsection (2) its own conferral of power upon the Minister? In other words:
Where a Minister is satisfied -
and the cases would say he is reasonably satisfied, would they not -
that a document:
(a) is an exempt document . . .
the Minister may sign a certificate to that effect, specifying that reason.
What is there to stop an investigation of that exercise of power by the Minister as to his satisfaction triggering the signing of the certificate?
MR CAVANOUGH: That is what we are here to debate, your Honour.
GUMMOW J: I know, but how is that overcome by what the Act then stamps upon the product of that process, which is the certificate itself? If you look at (2A) what is being established "conclusively" is not the anterior processes. What is being established conclusively is the characteristics in 33A(1).
MR CAVANOUGH: Yes, your Honour, but that is enough, in my respectful submission. If the document is conclusively established to be exempt it becomes futile to inquire into the preceding steps.
GUMMOW J: Well, not really.
McHUGH J: Why? The Minister may wrongly think that an instrumentality is a State instrumentality and, therefore, an authority of the State. In fact, it may be. He may be completely wrong about it, in which case his decision was wrong, so why cannot his process of reasoning be examined?
MR CAVANOUGH: Your Honour, there is always the risk that a mistake will be made by a minister. That is so. But the question is whether Parliament tolerated the possibility of such mistakes being made by ministers notwithstanding these requirements to specify reasons in the certificates.
KIRBY J: But would not one say in answer to that, "Well, Parliament can tolerate that, but courts have traditionally, and in this country still do, say you have to make it very clear"?
MR CAVANOUGH: I understand that, your Honour, but this is a unique statute, in my respectful submission.
KIRBY J: Now, you say it is very clear if only we will look at all the provisions of the Act.
MR CAVANOUGH: Yes, your Honour.
KIRBY J: Well, it is like the dentist's chair. As typical of lawyers they hate to go into the statutes.
MR CAVANOUGH: No, your Honour. In this case we say the statute is the very thing that gets us home.
KIRBY J: Well, let us go into the dentist's chair.
GLEESON CJ: You say it is more like a dental conversation in which the dentist asks you a question and then puts a drill in your mouth before you can answer it?
MR CAVANOUGH: I will not say that to you. Can I take the Court, first then, to section 11, which is the principal provision, I suppose? It provides that:
Subject to this Act -
and we emphasise that phrase -
every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of any agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
My learned friend would, no doubt, also draw the Court's attention to subsection (2). The decision on access is to be made by the agency.
GUMMOW J: Well, wait a minute, there is a definition of "exempt document", is there not?
MR CAVANOUGH: Yes, there is, I think, your Honour.
GUMMOW J: Well, do we not have to look at that?
MR CAVANOUGH:
"exempt document" means:
(a) a document which, by virtue of a provision of Part IV, is an exempt document;
KIRBY J: Where is that?
MR CAVANOUGH: That is in section 4, the definition section.
KIRBY J: That is a really insightful and helpful definition, is it not?
MR CAVANOUGH: Yes, very helpful, your Honour.
GUMMOW J: Well, it does make the point, does it not, that it is not only Part IV - that Part IV is not the exclusive area that one looks to to see if a document is an exempt document, is it?
MR CAVANOUGH: No, because of subsections (b) and (c) of the definition, your Honour.
GUMMOW J: Yes.
MR CAVANOUGH: Yes, that is right:
(b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State - - -
GUMMOW J: So (b) and (c) would raise justiciable questions, surely. Is there any exclusion of justiciability as to (b) and (c) of the definition of "exempt document"?
MR CAVANOUGH: No, your Honour, because the conclusive certificates are not applicable in respect of those sorts of decisions.
GUMMOW J: That is right.
MR CAVANOUGH: They are not applicable to every exemption claim either, only certain exemption claims. They are rarely issued, I should say, your Honour, and no doubt for good reason. Perhaps I should draw attention to the definition of "exempt matter" which is:
matter the inclusion of which in a document causes the document to be an exempt document - - -
GUMMOW J: Where is the phrase "exempt matter" used?
MR CAVANOUGH: In provisions, for instance, as I recall, that deal with protections on procedure and so on, making it clear that in giving explanations for decisions - - -
GUMMOW J: Well, do not descend into generality. At some stage tell us precisely where that phrase crops up, but no need to do it now.
MR CAVANOUGH: Yes, your Honour. There are some exceptions in section 12 to the entitlement to obtain access. They are essentially documents that are otherwise available. An exception for documents in certain institutions in section 13. Section 14 provides that:
Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.
Then section 15 governs the requirements for a request, but one only has a right to obtain a document upon a request made in accordance with section 15 and the request must be directed to the agency or the Minister. I think 15A can be passed over. There is also in section 16 a provision for transfer of requests to more appropriate agencies. And 17, relating to the use of computers, again I think can be passed over, but 18 is a more central provision. It provides that:
(1) Subject to this Act, where:
(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b) any charge . . . has been paid;
the person shall be given access to the document in accordance with this Act.
But subsection (2) provides:
An agency or Minister is not required by this Act to give access to a document at a time when the document is a exempt document.
GUMMOW J: That is another point really. This characteristic of being an exempt document has a temporal aspect to it.
MR CAVANOUGH: Yes, your Honour. The certificates are not forever either, your Honour.
GLEESON CJ: I notice that this scheme of certification appears to apply to some categories of exempt documents and not to other categories of exempt documents.
MR CAVANOUGH: Yes, indeed, your Honour. Only what might be considered the most sensitive from the, if you like, high-level government point of view.
GLEESON CJ: It does not only apply to section 33A and section 36, with which we are concerned - - -
MR CAVANOUGH: No, your Honour.
GLEESON CJ: But there are a number of kinds of exempt documents that do not have this certified procedure.
MR CAVANOUGH: That is so, your Honour, quite a number.
GLEESON CJ: Is it a common feature of the certifying procedure - I have not checked - that at least in so far as there is a challenge to the merits of the decision to grant the certificate, the ultimate capacity to review the merits lies with the Parliament itself?
MR CAVANOUGH: Yes, that is essentially true, your Honour, although perhaps for more precision may I say this. The Act explicitly says that the AAT is not to review the decision to grant the certificate. What the AAT does is to determine the question - - -
GLEESON CJ: Whether there are reasonable grants - - -
MR CAVANOUGH: Whether there are reasonable grants for the claims reflected in the certificate.
GLEESON CJ: Yes.
MR CAVANOUGH: And that has been held to mean as at the time of the hearing before the Tribunal.
GLEESON CJ: At the scheme of the legislation, in relation to this certification procedure where it exists, is that there is a limited form of merits review by the AAT. If the merits review is adverse to the decision-maker, the decision-maker does not have to comply with the finding of the AAT.
MR CAVANOUGH: Precisely.
GLEESON CJ: The decision-maker can then put the matter to Parliament, for Parliament to decide.
MR CAVANOUGH: Exactly, your Honour.
GLEESON CJ: So that is the scheme of merits review.
MR CAVANOUGH: Yes, your Honour, albeit, as your Honour says, truncated merits review in that the question is whether there were reasonable grounds for - whether there are reasonable grounds for the claims contained in the certificates.
GLEESON CJ: But the scheme of merits review, in relation to the certification procedure, is one that follows both an administrative and ultimately a political process.
MR CAVANOUGH: Yes, your Honour. We submit, as Justice Burchett says, "the plain intent is that that was meant to be comprehensive", to use the phrase that this Court used in the Wright Case some years ago. "Comprehensive" meaning exhaustive, that is to say, encompassing the possibility of judicial review also.
GLEESON CJ: That is the question.
MR CAVANOUGH: Yes, indeed, your Honour.
GLEESON CJ: It may be exhaustive of the form of merits review that is available.
MR CAVANOUGH: That is where the debate is, your Honour, of course. We say that, as Justice Burchett says, it would be quite odd really, at the very least, that the "unreasonableness" ground could be aired and entertained - - -
GLEESON CJ: Well, it is not self-evidently odd to me that Parliament would decide that the avenues of merits review would be administrative and ultimately political but that if, for example, there was alleged to be an error of law affecting the decision, judicial review would be available. It would not be a crazy scheme.
MR CAVANOUGH: No, your Honour, perhaps not, but nevertheless it is highly unusual to have in any legislation this particular form of parliamentary review, if you like. That in itself is not a usual feature of legislation. There are also very strict mandatory requirements in relation to who can be even present at the hearing at the Tribunal level of the debate as to - - -
GLEESON CJ: About the merits.
MR CAVANOUGH: About the merits.
McHUGH J: But is not the critical question in this case whether the certificate remains in force? Whether it ever is in force? The legislation says it is only conclusive while it remains in force. Does that not raise the issue whether it is in force at all? If it is a nullity, it is not in force. It might have a bit of paper.
MR CAVANOUGH: Your Honour, with respect, that is, if I may say so, begging the question. The words "in force" are referred to by Justice Burchett and explained by reference to the particular provision - I think it is one of the sections providing for regulations under which certificates can be rendered time-limited.
McHUGH J: Well, of course, they can. That is one way they may not be in force, because of expiration of time, or because they are withdrawn. But they are only conclusive, according to the very terms of the Act, so long as they remain in force. And according to a theory which has long been expanded, a decision made without jurisdiction - a decision infected by jurisdictional error - is of no force and effect, at all events, once a court sets it aside.
MR CAVANOUGH: But, your Honour, those are implications that the law generally draws. Not always; not necessarily. We refer, for instance, to the case of ABC v Redmore in our submissions, which was a case again referred to recently - - -
McHUGH J: I remember it well. It came from us in the Court of Appeal when I was there.
MR CAVANOUGH: Yes, it did, your Honour. I see that. This Court said in that case that, on reading the statutory scheme, the proper inference that was to be drawn was that the obligations in the statute on the ABC were not legally enforceable. They were of such a nature that one drew the inference that Parliament did not intend that courts should become involved in enforcing adherence to those.
KIRBY J: Again, you are at a high level of generality. I dissented in that case, and it is not unusual in these cases to have different views about what the scheme of the Act requires. The problem is clear. You have to see whether the scheme of the Act ousts the review, but it is a pretty strong presumption against it - - -
MR CAVANOUGH: I understand that, but - - -
KIRBY J: - - - and you have to develop it from the scheme of this particular Act.
MR CAVANOUGH: Yes, and that is what I am seeking to do, your Honour, but it is not invariable that one reads the words, "certificate", say, to mean "a valid certificate". That is reading a word in, and the question is whether the Court ought, in the circumstances, to read that word in.
KIRBY J: Well, you do not have to read the word in. You just have to read in the word "certificate". Is it a real certificate? Or is it just a piece of paper? You say, it is begging the question, but it comes back to you. You are begging the question, is it a certificate?
MR CAVANOUGH: That, really, is the debate. If I may just go back to Redmore for a minute, I do not think, your Honour - we may be at cross-purposes. That was a decision of 1983.
KIRBY J: Redmore.
MR CAVANOUGH: Redmore. ABC v Redmore, which - - -
KIRBY J: Yes, I think - - -
MR CAVANOUGH: Your Honour - - -
McHUGH J: Yes, Justice Kirby dissented. He was in the Court of Appeal.
MR CAVANOUGH: The Court of Appeal. I am sorry, yes, your Honour.
KIRBY J: This was in our earlier life.
MR CAVANOUGH: Yes, your Honour.
KIRBY J: We never forget those cases.
MR CAVANOUGH: I see, your Honour. But this Court, I think - or, certainly, there was - - -
McHUGH J: This Court upheld the majority judgment in the - - -
MR CAVANOUGH: Yes, your Honour, exactly.
KIRBY J: They gave special leave and it took a lot of words to uphold the majority view.
MR CAVANOUGH: They did, your Honour, and presumably the case is still of authority.
KIRBY J: Because it is a matter of looking at the whole scheme of the Act and, of course, there is a legitimate point of view about the matter and I acknowledge that, but we are just not going to getting to get away from that drill.
MR CAVANOUGH: No, your Honour.
GUMMOW J: Where do we find nature of the review under Part VI? There is a merits review? Is there any content given to the expression "review" in Part VI?
MR CAVANOUGH: A content given to it - it is plainly a merits review.
GUMMOW J: How do we know that? I am not saying you are not right, but how do we know?
MR CAVANOUGH: Well, it is given to the AAT and that is what they do.
GUMMOW J: Yes, well.
MR CAVANOUGH: Yes, and section 43 of the AAT Act would assist there - - -
GUMMOW J: So we find it from 43 in the AAT Act?
MR CAVANOUGH: Yes, section 43(1):
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
GUMMOW J: That is right.
KIRBY J: By the way - and I do not wish to appear to be overly sensitive about this - but in this Court, the Court divided by three Justices to two, Justices Brennan and Dawson dissented in Redmore.
MR CAVANOUGH: Yes, your Honour, but - - -
KIRBY J: Which all goes to show that there is just no getting away from an analysis of the scheme and on such questions different minds will have different opinions.
MR CAVANOUGH: That is right, your Honour, but I think we also mentioned - - -
KIRBY J: You can make it so much easier if the Parliament does it expressly, then we are not troubled.
MR CAVANOUGH: I understand, your Honour, but may I just say that that case was referred to with approval, that is to say, the majority judgment by the Chief Justice and Justice McHugh in Abebe for the proposition that it is not unknown to the law to have unenforceable duties.
KIRBY J: I do not think I referred to it with approval.
MR CAVANOUGH: Perhaps your Honour did not. Yes. Now, I think your Honour Justice Gummow was asking me to go to Part VI of the Act, is that right?
GUMMOW J: Do we need to look at the Ombudsman Act in any way?
MR CAVANOUGH: I do not think so, your Honour, the Ombudsman Act provides for - - -
GUMMOW J: It is referred to in Part VI, some provisions, is it not?
MR CAVANOUGH: The role of the Ombudsman, as I understand it, is to inquire into complaints of poor process in determining requests for access, delays to getting files, things like that, administrative error of that kind, and the Ombudsman's powers are not determinative, they are recommendatory, and he reports to Parliament in extreme cases.
GUMMOW J: It would be odd to have a system whereby you have a form of merits review, but no review for legality.
MR CAVANOUGH: But, your Honour, the AAT will, of course, always be required to form opinions on legality and can act on them. Unless and until later set aside by court, those opinions will prevail.
GUMMOW J: What is the relationship between the AAT Act and the AD(JR) Act in that respect?
MR CAVANOUGH: But the AD(JR) Act ought to be just for legality complaints.
GUMMOW J: That is right.
MR CAVANOUGH: The AAT is more broad; it covers all complaints. If I might just go back to the Act from where I left off. I think I got up to section 18, I had dealt with that. There are some other provisions that are perhaps of some minor assistance to the case I wish to put. Section 21 deals with deferment of access; 22 with deletion of exempt matter or irrelevant material; 23 deals with decisions to be made by authorised persons. I will come back to that in a moment. Section 24, for instance, says that:
The agency or Minister dealing with a request may refuse to grant access . . . without having caused the processing of the request to have been undertaken, if . . . satisfied that the work involved in processing the request:
(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency -
or the Minister, as the case may be. So these are the sorts of qualifications and limitations that the Act imposes on the so-called right to access.
If I can come back to section 23 which reposes in administrators the responsibility of making the decision as to whether the request should be granted or not, it is not a judicial function, it is not a matter for a court. One does not go along to the Magistrates Court or the Federal Court or any other court and seek an order for the production of a document for which a request has been made.
GUMMOW J: What is the force of the phrase "legally enforceable right" in section 11?
MR CAVANOUGH: If a decision is made but then the document is not - - -
GUMMOW J: It means you can get mandamus under 75(v), does it not?
MR CAVANOUGH: Yes, exactly, your Honour. You can enforce your rights under the Act but the initial decision is made by the administrator.
McHUGH J: Do you not have to go as far as this, bearing in mind that the Federal Court has section 39B jurisdiction which reflects our section 75(v) jurisdiction. So you have to say that Parliament intended that even though a Commonwealth officer has acted illegally and unlawfully, the decision was not meant to be reviewable in this Court. I do not think you could maintain that proposition constitutionally, so therefore you have to go further and say that this legislation lays down a substantive rule of law that the Minister does not act unlawfully even when he disregards what he is supposed to consider.
MR CAVANOUGH: Yes, your Honour, we do need to go that far and we do, as Justice Burchett did. We are talking about only very particular decisions under certain provisions only in relation to this general scheme which simply do not - even if there were no reference to conclusive certificates, they would be the decisions of high policy, very broad concepts such as the public interest - - -
McHUGH J: Yes, but since Conway v Rimmer those types of decisions have been reviewable by the courts.
MR CAVANOUGH: Yes, but only since then and only within limits.
McHUGH J: Well, that is arguable, "only since then". Back in Marconi's Case this Court was doing it. It was only because of Lord Simon in Duncan v Cammell Laird that the law went off the rails for a 20-year period.
KIRBY J: No doubt you think that was one of the great decisions of the common law.
MR CAVANOUGH: Duncan v Cammell Laird? I do not say one thing or other in relation to that, your Honour.
GLEESON CJ: Mr Cavanough, is it possible to test this by looking at one of the other areas of certification not involved in this case, such as section 35? The same provisions, as far as I can see, relevantly apply. Suppose that a decision was made that a document was an official record of the Executive Council, which was a decision that was based on an error of law as to what constituted an official record of the Executive Council, or that was so unreasonable that nobody could reach it as, for example, where the person who made the decision did not even look at the document but asks somebody's clerk whether it was an official record, and accepted that explanation. Your submission, as I understand it, is that even if the decision was affected by an error of that kind, the effect of section 34 is to empower the making of such an erroneous decision, subject only to the limited merits review and ultimate political accountability provided by this legislation.
MR CAVANOUGH: Yes, indeed, your Honour, that is precisely it. Of course, it is highly likely that a limited merits review would undo any harm that may have been done in that course, because at the moment one has to come along to the AAT, which is going to be constituted especially for the purpose by a presidential member, and be required to demonstrate reasonable grounds for the decision. One is not going to be able to do so in a case like that.
GUMMOW J: Well, how does it get to the Federal Court only on a question of law under section 44?
MR CAVANOUGH: Beyond the decision of the AAT.
GUMMOW J: Yes.
MR CAVANOUGH: In an ordinary case, putting aside conclusive certificate cases, your Honour, section 44 provides that a decision of the AAT is reviewable on error of law in the Federal Court.
GUMMOW J: What about this field?
MR CAVANOUGH: I was thinking about that yesterday as it happens, your Honour. It is a nice question whether section - - -
GUMMOW J: It may be a vital question.
MR CAVANOUGH: Well, your Honour, in thinking about it, what I would submit is this, that the answer - - -
GUMMOW J: Ms Harris has the answer.
MR CAVANOUGH: Perhaps she has, too. I will not speak without consulting her. Your Honour, the answer, we would say, is provided by the substantive law which is reflected in these provisions, that is to say the certificate establishes conclusively the exempt status of a document and that is it and it is so in respect of the matter before any contemplation of an appeal to the Federal Court under 44.
GUMMOW J: So there is no question of law because of the substantive effect that Justice McHugh put.
MR CAVANOUGH: Exactly, your Honour.
McHUGH J: You have to assert that the legislation enacts a substantive rule of law that defines the legal effect of the Commissioner's conduct.
MR CAVANOUGH: Exactly, your Honour, and we do and that is what we have said in our written submissions. We say it is not surprising at all because one thinks, well, how would one - if Parliament is contemplating this legislation in 1982, it is not at all surprising that Parliament would want to reserve this particular power to the minsters, ministers only and their head of department, in special cases reviewable only by the AAT specially constituted, possibly by a Federal Court judge - some of them do sit on the AAT - on reasonable grounds basis with a further parliamentary accountability mechanism, an unusual one at that. The Minister personally must read the notice to Parliament. Again, we have been unable to find any other provision in the whole of the Commonwealth statutory regime where that is a mandatory requirement.
GLEESON CJ: Where is that provision of parliamentary accountability?
MR CAVANOUGH: It is in Part VI, it is in section 58A. The obligation on the Minister is contained in subsection (3).
GUMMOW J: It is laid before each House and read to the House of which the Minister is a member.
MR CAVANOUGH: Yes, read by the Minister.
GUMMOW J: Yes. Then what happens?
HAYNE J: Honourable members interject, I suspect.
MR CAVANOUGH: Honourable members interject and no doubt questions can be asked in the House.
GUMMOW J: But they do not disallow it?
MR CAVANOUGH: They cannot disallow it, no, your Honour, no. Nonetheless, as I say, that is a unique provision, as far as we can tell, requiring the Minister personally to - - -
GLEESON CJ: The ultimate sanction would be a vote of no confidence in the Minister. That is the usual form of ultimate parliamentary accountability by a Minister.
MR CAVANOUGH: Yes, your Honour.
GLEESON CJ: Subsection 4 prescribes what the Minister has to inform Parliament.
MR CAVANOUGH: Yes, and quite a detailed notice has to be read. It is not as though the Minister can just get up and say, "I decline to assist".
GUMMOW J: Where is the content of what the Minister says again, 58A?
MR CAVANOUGH: To Parliament?
GUMMOW J: Yes.
MR CAVANOUGH: Section 58A(4).
GUMMOW J: Assume that is not observed, what happens then?
MR CAVANOUGH: That is a matter for Parliament, surely, to discipline the Minister. It is an obligation - - -
GUMMOW J: No, assume the notice is defective, the notice read out is defective so the scheme of the Act is miscarried. The scheme of the Act assumes each House would be informed. If they have not been informed as the Act requires, what happens then?
MR CAVANOUGH: I notice that subsection (7) provides that:
Section 13 of the Administrative Decisions (Judicial Review) Act does not apply to a decision of a Minister under this section.
So, because of the substituted reasons requirement, there is no duplication, but if the - - -
GUMMOW J: You have to say this a Redmore-type obligation, do you?
MR CAVANOUGH: Yes, your Honour, we do.
GUMMOW J: It does not mean what it says.
MR CAVANOUGH: This particular one, your Honour?
GUMMOW J: Yes. It is no good saying the Act requires this or does not require that, if there is no legally enforceable obligation to do it and it is just a motherhood provision. You may be right but that it what you have to say.
GLEESON CJ: You have to say the only sanction is political.
MR CAVANOUGH: Yes, your Honour. At that particular stage one has gone beyond the AAT filter - - -
GUMMOW J: Yes, but you have to say the sanction is political not only for what follows from compliance with the requirement of disclosure, but what follows from non-compliance of the requirement of disclosure. You have to say that is political as well.
MR CAVANOUGH: Disclosure of the reasons?
GUMMOW J: That seems to me a large step, but is that not a step you take?
MR CAVANOUGH: Disclosure of the reasons.
GUMMOW J: That seems to be a large step, but is that not a step you would take?
MR CAVANOUGH: It is just that it would be virtually unheard of, one would - surely it is unheard of to - it is not to be contemplated really that a minister would not provide a notice in accordance with that provision if - - -
GUMMOW J: He or she may be maladvised. It has happened before today.
GLEESON CJ: Does the expression "injunction" in section 75(v) of the Constitution include a mandatory injunction?
MR CAVANOUGH: Your Honour, that is not a question I have thought about.
GLEESON CJ: Could this Court make an order that a minister comply with section 58A?
HAYNE J: For example, by a writ of mandamus.
MR CAVANOUGH: I would submit, yes, your Honour.
GUMMOW J: Well, take instructions. Do not rush to any concession.
MR CAVANOUGH: Your Honour, it is not as though - the critical part is the conclusive certificate, shutting off inquiry as to the exempt status of the document. This notice here is a notice about a different thing.
GLEESON CJ: I think we are just testing the proposition, which is an important proposition, that the form of accountability, provided at this level, is exclusively political.
MR CAVANOUGH: Yes, it may well be that that is the intention of it. I do not have instructions one way or the other as to what the position of the government would be in relation to that. Certainly, Justice Burchett's view was that once one got to this stage the matter was wholly political, and that was sufficient to show that there was no room for judicial review, particularly in relation to the decision to issue the certificate in the first place, but also I think his Honour would have said, at this level too, "We would adopt that". Alternatively, even if that be wrong, it does not indicate that the decision of the Minister, to issue the certificate, is judicially reviewable. Just because there might be an enforceable obligation to comply with this particular notice requirement.
HAYNE J: Now, I can understand that the subject matter of the certificate may - it may not - have some bearing upon the kinds of allegation that might engage what might be called the "standard grounds for judicial review". That is, the area for debate might, in this case or kind of case, be quite narrow. Much of your argument seems to start from Pandora's box, saying because the whole range of judicial review arguments are open, effectively they can flail around and set at nought the whole statutory procedure.
Given the way in which this case has progressed through the courts, we do not have any specification, save in the most general terms, of the errors of law or illegality alleged. Why should we assume that to engage any of the standard grounds for judicial review, impinges on the statutory scheme? Does not that argument become circular because it carries within it an assumption about the kinds of errors of law that might be made?
MR CAVANOUGH: But, your Honour, my learned friend does not restrict himself to errors of law.
HAYNE J: I understand that and Wednesbury unreasonableness is going to march across the stage at some point in this debate, I know that. Can I leave it aside.
MR CAVANOUGH: Yes, but it not just that, your Honour; it is taking into account irrelevant considerations.
HAYNE J: Just so. Now what is an irrelevant consideration, what are relevant considerations, in this field of discourse, might be as to the former very narrow, as to the latter very large. Because of the way we have the case, we do not know what are said to be the relevant or irrelevant considerations.
MR CAVANOUGH: Yes we do, your Honour. Justice Burchett, with respect, was perhaps in error in saying that the respondents had done no more than set out a bare bones - - -
HAYNE J: Look, I know we have got pages of statement, dare one say unrefined statement.
MR CAVANOUGH: Yes, your Honour, and therefore we have been told as much as I think my learned friend ever intends to tell us about - - -
HAYNE J: Just so. It would be unkind to utter the words "grapeshot pleading" and I therefore do not, but it might be thought that there might be a little more refinement in the argument at some point, but we have not got it. But the point I want to have you grapple with is notions of relevant irrelevant considerations, which you suggest as being exemplars of why the statutory scheme will be set at nought, may themselves be, as for the former, as I say, relevant considerations very large; irregular considerations very narrow, and if that is so, why is the statutory scheme set at nought?
MR CAVANOUGH: Your Honour, our submission is that there are no legal enforceable conditions or duties on the Minister in relation to - - -
HAYNE J: And that is the end point.
MR CAVANOUGH: Yes.
HAYNE J: What I wanted you to grapple with is this intermediate question.
MR CAVANOUGH: Well, your Honour, I will endeavour to do so. If, in fact, the considerations that were mandatory or imperative, if you like, were limited and if there was very little scope for the argument of failing to take into account relevant considerations - I think that is what your Honour is putting to me?
HAYNE J: Yes.
MR CAVANOUGH: That may lessen, to a degree, the contrariety with the policy of the Act that would be involved in allowing cases like this to go ahead, but it would not deal with it entirely, but this case is a good illustration. It is not just the outcome at the end of the day in the judge's judgment; it is the judicial review process that is a problem, if you like, with respect to this area, because what is envisaged in the statute itself, in what we say is the only avenue that is contemplated, is that where the certificate has been issued, the Commonwealth will go along to the AAT; the AAT will be closed; the applicant will not be allowed to be there, nor any member of the public, nor any legal representative for the applicant, nor anybody else, except the representatives of the Commonwealth and the AAT, and material will be put to the Deputy President or the President and that will be all of the material that can be looked at and it will be conducted by the Commonwealth in front of the Tribunal, and then there is a parliamentary process later.
What my learned friend wants to do is to have the conduct of a proceeding in a court where he leads evidence, calls witnesses, even if it is only a limited area, as your Honour says, that would be an imperatively relevant consideration. Nonetheless, my learned friend wants to go along as the plaintiff and call a string of witnesses - he already has 15 affidavits in this case - make all sorts of allegations as broad as can be about the infamy of the respondents in the way they have behaved, put the respondent to the choice of having to lead no evidence, say nothing about it - - -
HAYNE J: That is what litigation is ordinarily about, Mr Cavanough. Yes, go on.
MR CAVANOUGH: Yes, but, if not to do that, to at least have to cross-examine witnesses in court. Even if you close the court, at least the witnesses are there and they are going to hear the sorts of things that will have to be put by the Commonwealth to justify its position, the very thing that the Act says must never happen. Now, can I take the Court to the case that established that 10 years ago?
GUMMOW J: Before you do that, where are the secrecy provisions in Part VI?
MR CAVANOUGH: Section 58C, your Honour. There are other provisions that endeavour to ensure, even in any ordinary case, that there will be no disclosure or even accidental disclosure of the contents of the documents to an applicant in the course of the debate about whether the document should be released or not, because that is what we are talking about, ultimately, whether the document should be released or not to the applicant and, of course, it would be anathema if, in the very process of considering that question, any information about the contents of the document were released, even incidentally.
HAYNE J: No doubt the Court would mould its processes accordingly.
MR CAVANOUGH: Well, your Honour, the Court would have a discretion, presumably, if this other view were right. Here, there are mandatory provisions involving no discretion, or so it has been held, in respect of the particular case of certificated claims and 58C deals with them. Section 58C(1) says:
This section has effect notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975 .
(2) At the hearing of a proceeding referred to in subsection 58B(1) -
which is a proceeding arising out of a request for the determination of a special question whether there are reasonable grounds for a claim in a certificate -
the Tribunal:
(a) shall hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document is produced, to the Tribunal by:
(i) an agency or an officer of an agency;
(ii) a Minister or a member of the staff of a Minister; or
(iii) a member, an officer, or a member of the staff, of a body referred to in subsection 7(1) or the person referred to in that subsection;
or during which a submission is made to the Tribunal by or on behalf of an agency or Minister, being a submission in relation to the claim:
(iv) in the case of a document in respect of which there is in force a certificate under subsection 33(2) or 33A(2) or section 34 or 35 - that the document is an exempt document;
(v) in the case of a document in respect of which there is in force a certificate under section 36 - that the disclosure of the document would be contrary to the public interest . . .
(b) subject to subsection (4), shall hold the hearing of any other part of the proceeding in public.
But there will be other matters to be inquired into that are not covered by the certificate, but where the certificate is in force that is the regime.
Now, it has been held in a case called Burchill, which we have copies of and I will hand up, Department of Industrial Relations v Forrest - I am sorry, Mr Burchill was the applicant for the documents and Mr Forrest was the person constituting the AAT. Perhaps if I can take your Honours to that particular case. It is a decision of the Full Court in which I see Mr Black, QC, as his Honour then was, and Mr Bell were for the applicant, for the Minister.
This was a case where a journalist sought access to a document, being a:
Commonwealth submission on parliamentary salaries, made to the Remuneration Tribunal. Meanwhile the to the Department of the Prime Minister and Cabinet signed a certificate purporting to be pursuant to s 34, stating that the document was exempt as "a document of a kind referred to in s 34(1)(c) and 34(1)(d) of the Act".
Then, as I have just taken your Honours to:
Section 58C(2) provided that in such a proceeding the Tribunal should hold in private the hearing of any part of the proceeding during which evidence, information, documents or submissions were given or made by the Department. Section 58C(3) provided that the Tribunal "may, by order, give directions as to the persons who may be present at that hearing ".
These present proceedings were brought by the Department to challenge a ruling by the Tribunal which allowed -
the journalist's -
legal advisors to be present while evidence was led as to the contents of the document the subject of the claim for exemption.
Now, it was held by the Full Court that:
The word "may" in s 58C(3)(a) imposed a duty on the Tribunal to give effect to the mandatory provisions of s 58C(2).
The Tribunal had proceeded in error by assuming that it was entitled even to allow -
the journalist -
and his witnesses and legal representatives to be present, and its decision should be set aside.
It was also held by Justices Lockhart and Hill that:
The certificate -
on its face -
was so uncertain in its description of the kind of document in respect of which the exemption had been claimed as to be rendered invalid.
That is the sort of - if you like - concession that we have made, that if the certificate, on its face, does not answer the statutory description, then it is not a certificate that takes effect under the statute. But that is as far as one can go. It seems to be certainly consistent with the reasoning in this case that their Honours would have taken that view, too.
Can I just take the Court to the particular passages in the judgment, firstly, of Justice Northrop, page 101, which relate to this duty: "to give effect to the mandatory provisions of s 58C(2)". That is the very top line or two of his Honour's judgment on page 101.
Then, if I could take the Court to page 102, and the first paragraph on that page. Again, if I could just draw attention to that, where his Honour made reference again to 58C and the requirements for privacy. Similarly, at the top of 104:
The order made was inappropriate for the purpose since the hearing should have been in private.
Towards the bottom of that first incomplete paragraph on 104, his Honour said:
neither Mr Burchill nor his legal representatives would have been at the hearing when that matter was disclosed.
Then, in the joint judgment of Justice Lockhart and Hill, the same view was taken, commencing at page 118, towards the bottom of the page, where their Honours refer to "the first of the remaining questions", the question being:
whether the Tribunal is entitled to direct that, until it further directs, Mr Burchill be excluded from the hearing of the application before the Tribunal, but that his counsel and solicitor may remain.
Towards the bottom of the page, their Honours say:
There are indicia in the Act which lead us to conclude that there is an evident legislative purpose that, where there is a conclusive certificate in force, the document which is the subject of the claim for exemption shall not be revealed to persons who are present at the hearing including the applicant for review, his witnesses, agents or legal representatives, but excepting a Minister or agency which is represented at the hearing.
On page 120, in the first full paragraph, there is reference to the 58A obligations about laying notice before each House of Parliament. Then, in the third full paragraph, their Honours said:
In the present case the Tribunal proceeded on a wrong basis. It assumed that it was entitled to allow Mr Burchill, his witnesses and legal representatives to be present during the private hearing (though it chose in fact to allow only the legal representatives to be present) when evidence was to be given as to the contents of the document the subject of the claim for exemption which would have revealed at least exempt matter. That assumption was misconceived. We observe at this point that there must be very few cases where the evidence to support the claim that there is a reasonable basis for it in respect of Cabinet documents would go beyond an affidavit of the kind which Mr Templeton himself swore.
Then, there is also a passage from an earlier judgment of Justice Davies in Re Howard and Treasurer of the Commonwealth of Australia, which I would draw attention to in this context. His Honour said:
"If a conclusive certificate is given with respect to a document the disclosure of which it is thought would, or could reasonably be expected to, cause damage to the security of the Commonwealth or the defence of the Commonwealth or the international relationships of the Commonwealth within the meaning of s 33 of the FOI Act or that the document was a Cabinet document as specified in s 34 of the FOI Act or an Executive Council document as specified in s 35 of the FOI Act there may be very good reasons for keeping the document entirely confidential and therefore for seeking a private hearing before the Tribunal in the absence of the applicant. In many such cases, the production of the document itself to the Tribunal may not be necessary, for adequate evidence of the nature of the document given in private could satisfy the Tribunal of its exemption. There is a clear need for - - -
GUMMOW J: Well, what is the position with the United States legislation, from which this Act is derived?
MR CAVANOUGH: His Honour goes on to say in the very next paragraph says:
Decisions of the Supreme Court of the United States of America show a similar approach to the Freedom of Information legislation of the USA to the approach which commends itself to us - - -
GUMMOW J: Yes, I can read that. But what is the provision in the American legislation?
MR CAVANOUGH: What - - -
GUMMOW J: That is comparable to these secrecy provisions? Well, we had better be supplied with it, at some stage.
McHUGH J: Yes.
GUMMOW J: Because that is where this Act comes from.
MR CAVANOUGH: Yes, your Honour, yes. I think Justice Burchett's even had an earlier predecessor somewhere else in Europe, I think.
KIRBY J: Sweden. Sweden has had an FOI Act since about 1804.
MR CAVANOUGH: Yes, and I think France has had an FOI Act for some time too, his Honour said.
GUMMOW J: Yes, but what happens in France might be different from what happens in a Commonwealth country.
MR CAVANOUGH: Yes. Your Honour, we will seek to get the American provisions.
GUMMOW J: Those who drew this Act were inspired by the United States Act, I am sure.
MR CAVANOUGH: Principally, I think, your Honour, that is right. Your Honour, we will undertake to get the American provisions as they were at the time of those cases and as they presently are.
GUMMOW J: Since then, that is then 81 and 83 when Mr AG was having some war with the CIA.
MR CAVANOUGH: Was he?
GUMMOW J: Yes, but there must be a decision since then.
MR CAVANOUGH: Is your Honour interested in the decisions as well as the legislation?
GUMMOW J: Yes.
MR CAVANOUGH: Yes, your Honour.
Well, we say much can be drawn from those provisions as to the absolute secrecy, to use his Honour Justice Davies' phrase, that must be enforced in respect of certificated claims or documents the subject of certificated claims and mandated absolute secrecy is not compatible with judicial review.
McHUGH J: I suppose if your argument is wrong, it certainly throws up an anomaly with a case of court proceedings. If a State paper is subpoenaed and it is an individual document, a certificate is given in respect of the individual document and not on the class document, then the court inspects it in private and, depending on what view the court takes of the matter, a court will uphold the Minister's certificate. So in that situation, where a document is going to be evidence in court, there is no question of exploring the motives of the Minister.
MR CAVANOUGH: No, Justice Burchett mentions those judgments.
McHUGH J: It may be put in your favour that this has nothing to do with courts. None of this documentation was obtainable until this legislation has been brought in and it is handed over to citizens and I suppose you say that the Parliament has taken the view that the Minister states conclusively, subject to review before the Administrative Appeals Tribunal, whether or not a particular document should be handed over.
MR CAVANOUGH: That is it, your Honour. That is it, your Honour.
KIRBY J: But is the answer that is given to that, logically, the first question is to determine whether there is a "certificate" under the Act and if, in fact, because of a flaw in getting to the decision to that certificate, there is not, then the piece of paper purports to be a certificate, but because it can be attacked by reason of the scheme of the Act and by reason of the general principles of administrative law, there being no express exemption, that therefore you are begging your question, "Is this a certificate?".
McHUGH J: Your answer to that is that there is an anterior question, that the legislation has produced a substantive rule of law, just as it did in Bloemen's Case.
MR CAVANOUGH: And Redmore's Case.
GLEESON CJ: Without expressing any view on the ultimate correctness of your argument, it must turn ultimately, must it not, on the meaning of the concept of conclusiveness of a certificate, the sort of thing that was decided in Dobbs v The National Bank, where this Court said a statement that a certificate was conclusive means what it says. What it was taken to mean in that case was in line with what Justice McHugh just put to you, that it defined the rights of the parties to a contract.
MR CAVANOUGH: Exactly.
GLEESON CJ: It did not prevent a party from a contract going to court to exercise a right; it defined the nature of the right.
MR CAVANOUGH: Precisely, your Honour, that is this case, we say. No one is prevented from going to the Federal Court. We are in the Court now arguing about what are the rules that apply in respect of the release of documents under this Act. My learned friend has not been shut out from judicial review. We are here determining the very question of what are, if any, the legal obligations that - - -
KIRBY J: Yes, but you are arguing for a proposition that, if correct, means that no one can go to court.
MR CAVANOUGH: No, your Honour.
KIRBY J: You cannot go to court to challenge the lawfulness of the certificate.
MR CAVANOUGH: There would be no point because you would be bound to lose. That is what we are saying, just as in Richard Walter. The order of the Court was along those lines: yes, you can review but you will lose. The question was:
Does the production of the Notices of Assessment preclude wholly or in part challenge or review of the Richard Walter assessments in the proceeding under s 39B of the Judiciary Act 1903 (Cth), by reason of the operation of s 177 of the Income Tax Assessment Act 1936 (Cth)?
Answer: No, but the challenge must fail or the review be refused.
It is the same answer.
McHUGH J: I held, if I remember rightly, that section 177 was not jurisdictional.
MR CAVANOUGH: No, it does not affect the jurisdiction of the Court, neither does this provision. We never suggested it did.
McHUGH J: So there was no interference of the judicial power of the Commonwealth?
MR CAVANOUGH: No, none whatsoever, and similarly here. It is just that it is plain that the Act means what it says.
HAYNE J: Let me test that against the extreme case of fraud. Let us begin with Dobbs' Case, contractual certificate. If the contractual certificate is obtained by fraud, would the courts stand by and preclude the challenge to the certificate in those cases? I think not, would they?
MR CAVANOUGH: Your Honour, Justice Burchett dealt with that very point.
HAYNE J: I am not interested in Justice Burchett's treatment of it for the moment, Mr Cavanough. I want to come to the underlying question. Would the certificate be set aside for fraud?
MR CAVANOUGH: In my respectful submission, no, because, if I can adopt his Honour's argument, "It is very difficult to see how that situation" - that the Act sets up - "can accommodate the legal doctrine of fraud, or bad faith", as his Honour said at 168. It is very different in this context. It is one thing to say fraud might be an exception in the contractual situation between two citizens but it is simply a different realm of discourse altogether here.
McHUGH J: That is because I think it was said in one of the valuation cases by Sir David Cairns. I cannot remember the name of it for the moment, but he said notwithstanding the certificate, there is an implied term in the contract that - - -
MR CAVANOUGH: - - - fraud undoes everything, as Justice Denning once said.
HAYNE J: And fraud is one of the AD(JR) grounds: induced or affected by fraud.
MR CAVANOUGH: Yes, as is natural justice, but it is not always applicable, your Honour.
HAYNE J: Yes, I understand that, Mr Cavanough. Do you say that a certificate obtained by fraud in this case could not be set aside?
MR CAVANOUGH: Your Honour, my submission is one cannot conceive of how a certificate could be obtained by fraud. It is not really a concept that really could ever apply.
McHUGH J: I think you have to grasp the nettle, have you not? You have to say even if the Minister is dishonest, he says, "This is going to get rid of this certificate - if I do not give this certificate we are going to be damaged politically, so I am going to sign a certificate here. I don't mind." I mean, if a Minister said that - - -
MR CAVANOUGH: Well, if that is what his Honour means by fraud, yes, of course, I do make that submission, that that is open to a Minister. One would hope it would never happen and, of course, that the Minister does that - - -
GUMMOW J: We do not know if it has ever happened, that is your problem.
MR CAVANOUGH: Well, one may know, your Honour, through the AAT process, one may know through the parliamentary process, but they are the limits of the processes by which one is entitled to find out whether that hopefully very rare, very extreme, possibility has come to pass in a particular case. The problem otherwise is, once you open the door, it is just open slather in terms of examining - - -
KIRBY J: Courts do not generally rest on hope. They rest on law and legal analysis.
MR CAVANOUGH: Yes, your Honour.
KIRBY J: I do not think "hope" and "hopefully" and so on are really very helpful to the debate. You say hopefully it will not happen very often, but that really is not an answer to Justice Hayne's question, I think.
MR CAVANOUGH: Well, with respect, it is in that your Honours would take into account, surely, I would submit, that Parliament, when turning its mind to these provisions, would have not contemplated that kind of prospect as being such a problem in this country as to warrant allowing examination - - -
KIRBY J: You say the protection against this is the political opprobrium that might attach to the obliged statement in the Parliament and the fact that the Minister has to wear it.
MR CAVANOUGH: Yes. Well even prior to that, your Honour, the Minister has to go to the AAT and show reasonable grounds for the claims. If there are reasonable grounds for the claims, surely that is enough to justify the remaining secret of a document, regardless of what the Minister may have done. That is what Parliament is saying. Even beyond that - - -
HAYNE J: That argument amounts to this, it seems to me, Mr Cavanough, that the only area for reasonable debate in relation to these certificates will be about reasonable grounds. There will be no relevant area for reasonable debate about lawfulness. Now, that may, in fact, have a large element of truth in it, in this way. Natural justice may, perhaps, have little engagement in this area - it may have some, but it may have little. Want of jurisdiction to decide may have little relevant engagement. Error of law may have little relevant engagement. Want of evidence and other material likewise. Relevant and irrelevant considerations we have already debated. That may simply be an argument that the lawfulness of the decision will generally not be open to successful challenge, but you want to go so far as to say may not be open to any challenge.
MR CAVANOUGH: Yes, your Honour, I do, and I say that that is the plain intent of the provisions and, as his Honour Justice McHugh said, it is not unprecedented in the law at all. One does not go behind a certificate in those State immunity cases.
McHUGH J: Well, you do, but the court may inspect in private.
MR CAVANOUGH: Yes, the court would inspect in private, but the court is not going to then go back and examine the decision to issue the certificate. It is going to look at the document and the claims that are made in respect of it. That is the equivalent protection that there is here.
McHUGH J: What about the Ombudsman's powers? Does it extend to exempt documents as well?
MR CAVANOUGH: I think so, yes, your Honour.
McHUGH J: So you have your right of - - -
MR CAVANOUGH: He will not inquire if there is an AAT case going on at the same time, but you will hold his hand, but if someone wants to go to the Ombudsman - they cannot afford or do not like the AAT proceeding - they can go to the Ombudsman and ask him to inquire. He cannot overturn a decision and order the release of a document, but he can embarrass agencies more than somewhat by one means or another.
McHUGH J: You can go to both, I think, can you not?
MR CAVANOUGH: Yes, in fact, you might have different complaints. The Ombudsman might be best for one sort of complaint and the AAT for another.
GUMMOW J: Were you intending to refer to the issue of certificates by the executive relating to foreign affairs?
MR CAVANOUGH: I am sorry, your Honour, I did not quite catch that.
GUMMOW J: Were you intending to refer as conclusive to certificates issued by the executive as to various matters of foreign affairs?
MR CAVANOUGH: Under one of the other provisions is it, your Honour?
GUMMOW J: No, no, I mean at general law, as an example of this common law conclusive principle.
MR CAVANOUGH: Yes, it is another example. I seem to recall - - -
GUMMOW J: There is some discussion about that in the Hong Kong Case 193 CLR 128 at 149. There is a reference to the decision of Sir Owen Dixon on the point.
MR CAVANOUGH: Yes.
GUMMOW J: In Australia that is not right because it may purport to decide a constitutional question.
MR CAVANOUGH: Yes, but, your Honour, constitutional questions are again - - -
GUMMOW J: That is right. There is no such thing as a conclusive certificate under the Constitution in Australia. There is no such thing as a conclusive certificate because the Constitution is always there.
MR CAVANOUGH: Exactly, your Honour, I understand that entirely. But that does not affect this case, in my respectful submission.
GUMMOW J: It affects the English cases which creep into people's thinking. They are in a different ball game, no Constitution written down - - -
MR CAVANOUGH: No, but to the extent that there is no - - -
GUMMOW J: No separation of powers.
MR CAVANOUGH: That is so, your Honour, that is so, but nonetheless those English cases are consistent with our argument in so far - - -
GUMMOW J: I am sure they are.
KIRBY J: When I read that Lord Justice's opinion which you extracted in your written submissions, I thought that really does not square very well with our Chapter III notions.
MR CAVANOUGH: I understand that, your Honour, but our Chapter III notions are principles - - -
GUMMOW J: They come first, not last.
MR CAVANOUGH: Yes, they do, your Honour, but principally in respect of the Constitution and how far one takes that is a debate beyond this case.
KIRBY J: You say that, but can one test the proposition that the Act does not permit the scrutiny of the decision to grant the certificate by asking whether under section 75(v) the applicant could, nonetheless, go straight to this Court and say, "This is not a certificate at all. This is a nullity. This is void"?
MR CAVANOUGH: The answer, in my respectful submission, is the same answer that we give in respect of the same application being made to the Federal Court, namely that the outcome of the application must be the same. The substantive law is such as to require that the relief be refused, because the answer to the complaint is supplied by the statute. The document is conclusively exempt. Yes, obviously, the certificate answers the statutory description.
May I just conclude then, your Honour, by referring to a few matters in my learned friend's submission which escaped attention in our reply. Would it be convenient if I asked the Court to look at my learned friend's written submissions, in particular paragraph 22, to commence with. It is said against us that we do not:
and cannot, rely on the principle that, where a particular remedy is provided by statute, it is assumed in the absence of a contrary intention that the remedy is exclusive of other remedies.
The fact is we can, and do, rely on that principle, certainly at least by analogy and, just as his Honour Justice Burchett applied it, by reference to the case of Downey v Trans Waste [1991] HCA 11; 172 CLR 167
GUMMOW J: Sorry, 172 - - -
MR CAVANOUGH: [1991] HCA 11; 172 CLR 167 at 171, just as Justice Burchett did at appeal book 177. In paragraph 25 of my learned friend's submissions my learned friend says:
The conclusive certificate provisions do not employ the traditional formulations found in true privative clauses, such as "final and conclusive for all purposes", or "final and not subject to appeal or review". The word "establish" in sections 33A(2A) and 36(3) is referable only to matters of proof and evidence on merits review in the AAT, subject to the provisions of Part VI of the FOI Act.
GUMMOW J: Is that not a rather good point?
MR CAVANOUGH: I beg your pardon, your Honour?
GUMMOW J: Is that not a rather good against you?
MR CAVANOUGH: No, your Honour. In my respectful submission, it is not.
GUMMOW J: A good point against you, in the sense that you have to show that there is the creation of the substantive right.
MR CAVANOUGH: Yes, your Honour.
GUMMOW J: And one would have thought there would be better language if that was what the Parliament was setting out to do. Stronger language.
MR CAVANOUGH: With respect, your Honour, it is hard to be more plain than "establishes conclusively" and what that means, with respect, your Honour - - -
GUMMOW J: There are plenty of attempted privative clauses that said that, that collapsed in a heap.
MR CAVANOUGH: Yes, but, again, one has to read the whole statute in context. The point I am - - -
GUMMOW J: That is why privative clauses got so sophisticated and drastic in their - - -
MR CAVANOUGH: Yes, your Honour, but sometimes their sophistication and their being expressed in terms of shutting out the powers of the court, the jurisdiction of the courts, is their undoing. This is not a provision of that kind. This is a provision which creates a substantive rule of law. It does not just go to matters of proof or evidence, as Justice Burchett said; quite the opposite. A certificate can be issued at any time. It just happens in this case that it was issued whilst there were some AAT proceedings on foot, brought by this particular applicant. The certificate might have been issued two years before a particular request for a document is made, quite independently of any particular request or any particular applicant. Plainly, natural justice has nothing to do with such a process.
Now, that certificate will take effect there and then and render conclusively exempt that document. So, the agency, when it receives, later on, a request, will be able to say without fear of contradiction, "That document is exempt" subject only to the power of the person who then wants it to go to the AAT to seek a determination for a specific question that the Act provides for, namely whether, at that time, there are reasonable grounds for the claims reflected in the certificate. So, my learned friend is quite wrong to say that this is a provision that deals only with proof and evidence in the AAT.
GUMMOW J: It may be, might it not, that the state of affairs which form the Minister's satisfaction as to Commonwealth/State relations, for example, evaporates.
MR CAVANOUGH: Exactly.
GUMMOW J: But the certificate remains in force.
MR CAVANOUGH: It does, but it is revokable at any time.
GUMMOW J: Quite.
MR CAVANOUGH: And, not only that, the whole point is that the decision - the reason that the decision to issue the certificate is expressly excluded from the AAT's kin because it becomes irrelevant. What matters is whether the claims that are reflected in the certificate are still current and are reasonable claims at the relevant time and it would be quite strange if, nonetheless, Parliament intended that a court could retrospectively go back and examine the decision of the Minister who issued the certificate.
GUMMOW J: You are saying that you might get further with a merits review over the AAT because the evaporation could there be investigated?
MR CAVANOUGH: Of course.
GUMMOW J: Because the AAT works on current situations.
MR CAVANOUGH: Current facts, yes.
GUMMOW J: Whereas judicial review is only operating on the anterior situation.
MR CAVANOUGH: It is retrospective, yes, your Honour.
GLEESON CJ: Is there a possible intermediate position - I do not know how it would relate to the grounds of review in the present case, but is it a possible point of view that the issue of a document which answers the description of a certificate in that it is a piece of paper with certain information written on it signed by a certain officer is conclusive of that which it certifies, but not necessarily conclusive of that which had to exist in order to give it efficacy as a certificate.
To take the fraud example raised by Justice Hayne a little earlier, the document does not certify that no fraud went into its production. Is it a possible point of view that an applicant for judicial review would not be defeated by the conclusiveness of the certificate if the applicant set out to claim that the issue of the certificate was procured by fraud, because that is not something that is certified.
MR CAVANOUGH: No, but, your Honour, there is the anterior question of whether fraud would invalidate the certificate, that is the question.
GLEESON CJ: Justice Hutley once wrote an article about what he called "The Cult of Nullity"; the lawyers' response to things. Just take the simplistic approach that a certificate is a piece of paper with writing on it to a certain effect, signed by a certain person. You may have the consequence that that piece of paper is conclusive of that which it certifies, but that would not be an answer to an argument that it was obtained by fraud, would it?
MR CAVANOUGH: It would, in my respectful submission, in this particular case.
GLEESON CJ: Because it does not certify that it was not obtained by fraud.
MR CAVANOUGH: No, my response is that it does not matter because, on our submission, fraud would not invalidate the certificate. Now, if it is a certificate of the Minister, it must be authentic, that is to say, it must be a certificate of the relevant Minister. But once it is, if you like, the act of the relevant Minister, once the certificate answers that statutory description, a certificate of that Minister, then one does not go behind it. Therefore - I know it is an extreme case - but one does not go behind it at all. True it is, it does not certify that the certificate was not issued through fraud, it does not certify that the certificate was not issued through an error of law or through any other defect.
GLEESON CJ: No, but there are some things that the certificate certifies.
MR CAVANOUGH: Yes, it certifies, and I will be precise; it is different according to each section. In the case of 33A the certificate:
(2A) . . . establishes conclusively that the document:
(a) is an exempt document referred to in subsection (1) -
and the case that I have already taken the Court to shows that one has to say whether it is (1)(a) or (1)(b), I think, in the certificate, otherwise it is invalid. Further, that the document:
(b) does not contain matter the disclosure of which under this Act would, on balance, be in the public interest.
The relevance of that comes from subsection (5) which provides that:
This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
So the certificate establishes conclusively that the document is exempt and, if you like, for completeness, that subsection (5) does not apply. That is that case. In 36 - - -
GLEESON CJ: Just pausing there before you pass, pause to examine that case. Is it a possible point of view that the effect of that is that the certificate establishes all matters of fact or law relevant to whether the document is an exempt document, but its production does not defeat an argument that the certificate was obtained by fraud?
MR CAVANOUGH: Well, in my respectful submission, no, that is not an available argument because subsection (2) provides that:
Where a Minister is satisfied that a document:
(a) is an exempt document for a reason referred to in subsection (1);
The Minister may sign a certificate to that effect -
To what effect? To the effect that the document is an exempt document, and once that has been certified, that is the end of the question. If the document is exempt, it does not matter any more whether there was fraud or any other problem previously in respect of that decision, because the document is conclusively certified to be exempt and, if it is exempt, the applicant cannot get it, so there is no point in any further argument.
GLEESON CJ: Well, there might be an attempt to set aside the certificate for a court to order that the certificate shall no longer be in force.
MR CAVANOUGH: That is going back to, in a sense, where we started. That requires the court to take the view that there are preconditions, there are limitations on the power to issue a certificate, other than compliance with the form of a document, the requisite form, such as - well, one then starts to list them: fraud or taking into account relevant matters or - - -
HAYNE J: Lawfully. The only requirement is that, in taking 33A(2), "where a Minister is" lawfully "satisfied that a document . . . is an exempt document".
MR CAVANOUGH: But, your Honour, there are a myriad of cases involving phrases like that being interpreted as merely directory, as not imposing legally enforceable obligations as to satisfaction, and that must be this case because - - -
HAYNE J: But that is Duncan v Cammell Laird, is it not, to say that "where a Minister is satisfied" does not at least include "where a Minister is reasonably satisfied"? It seems to me to be only a very slight step, if step at all, to say, "where a Minister is lawfully", which is to say, reasonably and other conditions, "satisfied".
MR CAVANOUGH: Well, your Honour, the certificate would conclusively establish nothing if one accepts that approach. It would simply lose its conclusivity. It would no longer conclusively establish that the document was exempt, because it itself was subject to - - -
HAYNE J: Well, that seems to me to be an argument that necessarily confuses merits review and judicial review. Judicial review is about lawfulness, not about whether the decision is right or wrong.
MR CAVANOUGH: No, with respect, your Honour, "conclusively" means conclusively in all respects and for all purposes, not merely as to whether it was a sound or unsound exercise of discretion. "Conclusively" is a much broader word than would merely extend to an opinion about the soundness of the exercise of discretion. It means what it says, "conclusively".
KIRBY J: Conclusively though as to what it says, not conclusively as to whether it has validly said it.
MR CAVANOUGH: Well, again, your Honour, we are going around in circles really.
KIRBY J: Yes, it is a circle - - -
MR CAVANOUGH: This is very apparent in Justice Marshall's judgment. His Honour said, "I am not saying anything about the certificate at all, only about the decision to issue it". But really the two things cannot be separated.
KIRBY J: We just have to sit down with the Act and read it carefully and, as you keep begging us, read Justice Burchett over and over and over again and then make up our minds.
MR CAVANOUGH: Yes, your Honour, that is really what it comes down to at the end of the day, but there were just a couple of other specific matters that I wanted to draw attention to in my learned friend's submissions. I am sorry, I may not have answered fully though your Honour's question.
GLEESON CJ: Yes, thank you.
MR CAVANOUGH: Paragraph 27, my learned friend says that in respect of 33A the certificate is more limited. It only relates to the ground in (1)(a) or (b) and the certificate does not extend to the "public interest" aspect which I have already drawn the Court's attention to, which is referred to in subsection (5). In my respectful submission, that is not so. It is plain when one reads 33A as a whole that the certificate covers the whole of the issues that arise under 33A and that, therefore, when that certificate comes to be examined in the AAT as to reasonable grounds, it is all of the matters that are certified, including reasonable grounds or the public interest claim.
Now, if I could then go to paragraphs 34 to 35 of my learned friend's submissions. I think I have perhaps already made this point. These are at the heart of the, if you like, circular roundabout we have been on but I think my learned friend relies on Justice Brennan's judgment in Quin in a footnote to those two paragraphs. I would invite the Court also to read those passages and draw a different inference from the one my learned friend would invite the Court to draw.
Justice Brennan focuses attention on what the power of the executive is in the particular situation, not so much legitimate expectations of the person approaching the executive for a benefit but really administrative review turns on the extent to which, or the scope and nature of the particular powers that Parliament has conferred on the decision-maker. We say here one infers that from the statute and one sees that there is, as a matter of substantive law, a power to issue a certificate which will be effective notwithstanding that these particular circumstances of the kind my learned friend alleges may or may not have occurred.
KIRBY J: Quin turned on the very special circumstance that that was the prerogative of appointments.
MR CAVANOUGH: It was, the magistrate's appointments. Yes, it is a very different situation and the question was whether there was a legitimate expectation of the same policy persisting into the future and I think the Court unanimously said no. Perhaps it was not unanimous but, in any event, that was the majority.
KIRBY J: It was not unanimous in the Court of Appeal of New South Wales.
MR CAVANOUGH: Yes, I see, your Honour. In any event, I will pass by that, if I may. The next point is dealt with in paragraph 44 of my learned friend's submissions where he seeks to distinguish Bloemen and, for that matter, Richard Walter. He relies on the terms of section 177, which are set out at the top of page 13 of his submissions. The terms are:
"The production of a notice of assessment...shall be conclusive evidence of the due making of the assessment and -
and my learned friend underlines "and" -
(except in proceedings on appeal against the assessment) that the amount and all particulars of the assessment are correct" -
and then my learned friend argues that that provision is very different from the one we are dealing with here because, if you like, it contained a self-validating aspect.
KIRBY J: Does it not the "due making"?
MR CAVANOUGH: No, your Honour, it does not because there is no self-validating aspect in respect of the thing that does the trick, namely the production of a notice of assessment. It is the "production of a notice of assessment" that is "conclusive evidence of the due making of the assessment" and that "the amount and all particulars of the assessment are correct".
KIRBY J: Yes, but you are lacking that "due making", are you not?
MR CAVANOUGH: No, your Honour. The reason for reference to "due making" there is just the very necessity of the Tax Act, the different context of the Tax Act. The scheme of the Tax Act is to have an assessment and there has to be an assessment made. It was appropriate as a matter of language to cover the due making of the assessment as immune from challenge. The reason is plain when one thinks about what happens in tax assessment, but this section gives conclusive effect not to the making of the assessment but to the production of a notice of assessment without saying the production of a notice of assessment is deemed to be done validly or - - -
KIRBY J: Given that the statutes are different and the statutory environment is different, it would have been simple for the Parliament here, would it not, to have slipped in, "And the signed certificate shall be taken by a court to be conclusive evidence that it was duly made under the Act by the Minister"?
MR CAVANOUGH: Your Honour, I do not think I have ever seen such a certificate in any other context. It really in a sense is superfluous and almost, one would think, inappropriate to say anything along those lines.
KIRBY J: That is the question, is it?
MR CAVANOUGH: In my respectful submission, it is.
KIRBY J: We realise that; you have been telling us that for three hours.
MR CAVANOUGH: I am sorry, your Honour, if I have gone on too long.
KIRBY J: Two hours - it seemed like three hours.
MR CAVANOUGH: The point I want to make is that this wording is apt to mislead. One can be apt to be misled when one forgets about what the subject matter of the certifying act is. It just happens to be the process that goes on in the Tax Office, the making of an assessment. There is no eloquent omission in the FOI Act by comparison to the Tax Act. If it had said in the Tax Act, "The production of a notice of assessment shall be deemed to be regular, regardless of any defect that might have attended the decision to produce it", that would be one thing, but there is no such provision in the Tax Act and never has been. That would have been the equivalent that my learned friend says is missing here.
HAYNE J: Just while we are in the realm of tax and the Richard Walter Case, am I right in recalling Richard Walter as establishing, amongst other things, that the provisions about production of assessment did not deprive the Federal Court of jurisdiction under 39B, that is to say the provisions about due production of assessment were not inconsistent with the availability of relief to a taxpayer, true it is in very limited circumstances, but under 39B or 75(v)?
MR CAVANOUGH: Your Honour, what was established there was that the jurisdiction of the court was not defeated because the provisions were read substantively; they were read to create a substantive rule. They had the effect that the application must fail. No "ifs" or "buts" or bits around the edges; the application must fail because of the terms of section 177. Perhaps what your Honour is thinking of is the passage that said the jurisdiction of a court is not taken away. The applicant can go along to the court and have his day in court but he will be met with a certificate which one can expect the Tax Commissioner to produce every time, and it will effectively conclude the issue.
McHUGH J: Did any other Judge except myself describe the effect of 175 and 177 as being substantive rules of law?
MR CAVANOUGH: Chief Justice Mason did, your Honour, yes. At page 185 his Honour said:
On the other hand, a rule of substantive law, which will not intrude into the exercise of judicial power, may be expressed in the form of a conclusive evidence provision.
It follows that the characterisation of s 177(1) is the critical consideration. Does it prescribe a substantive rule that all procedural steps, other than those going to substantive liability and so going to the excessiveness of the assessment, are directory only and do not touch the validity of the assessment? Or is it a jurisdictional provision which simply attempts to preclude the court from inquiring into matters which do go to the validity of the assessment?
GUMMOW J: Where is his Honour's conclusion?
MR CAVANOUGH: His Honour's conclusion I think is at page 187 at the top essentially:
Viewed in the light of s 175, s 177(1) is a provision which gives effect to the substantive expression of intention in the earlier section. The reference to "due making" of the assessment in s 177(1) reflects the content of s 175.
His Honour says at the foot of page 187 about five lines from the bottom:
In that context, the existence of an inadmissible purpose on the part of the Commissioner plays no part.
At 188 in the first full paragraph his Honour says:
In the light of the relevant provisions of the Act, as I have explained them, s 177 is not inconsistent with s 75 of the Constitution; nor does s 177 trench upon the provisions of s 75. Section 177 gives effect to the substantive provisions of the Act, in particular s 175, the effect of which is to ensure that the validity of an assessment does not depend upon compliance with any of the particular provisions of the Act or considerations of purpose. On this view, s 177(1) is consistent with the Hickman principle.
We say those observations apply squarely here.
McHUGH J: My judgment was to the same effect.
MR CAVANOUGH: Yes, it was, your Honour.
GUMMOW J: Is there a majority of the Court that says that?
MR CAVANOUGH: I think so, your Honour. Justices Deane and Gaudron dissented but their Honours view I think was to that effect.
GUMMOW J: Did Justice Brennan deal with it?
MR CAVANOUGH: Yes, I think he does.
GUMMOW J: Did Justice Toohey, with this precise point?
MR CAVANOUGH: I am trying to find Justice Brennan's dealing with the matter. Justice Brennan would have answered the question the way that the order of the Court answered the question. I think Justice Brennan might have thought the Hickman principle had some work to do in - - -
McHUGH J: I think Justice Brennan at page 223 says:
The effect of s 175 is that the requirements of the Act relating to the making of an assessment are directory only - - -
MR CAVANOUGH: Is that Justice Brennan? I think it might be Justice Toohey.
McHUGH J: Sorry, no, it is Justice Dawson.
MR CAVANOUGH: Yes, that is right.
GUMMOW J: What is the effect of this penultimate paragraph of Chief Justice Mason's judgment at page 188, "I did not understand the taxpayer to contend"? What is the point of saying that?
MR CAVANOUGH: For completeness, in my respectful submission.
GUMMOW J: I do not think so.
HAYNE J: I think since Richard Walter there had been some cases in the Federal Court - they have not, I think, come here - where taxpayers had sought section 39B relief alleging want of good faith in the Commissioner. Those cases have fallen over, I think I am right in saying, on want of proof of lack of good faith. I think there is a view, in some circles at least, that 39B is available even in the face of 177 if you make a challenge of want of good faith by the Commissioner.
MR CAVANOUGH: I think that view does prevail in the Federal Court jurisprudence of recent times. In my respectful submission, that is not in accordance with this decision and that - - -
GUMMOW J: We need to know about those decisions in due course. What Justice Hayne said to you is my understanding of what the law is understood to be. You may want to dispute it.
MR CAVANOUGH: Yes, and in any event, your Honour, even if, in respect of the tax provisions, this Court were to hold that that view were correct, that would not necessarily mean that bad faith was an admissible ground in respect of the FOI Act. The question would still arise whether, on the true construction of the FOI provisions, Parliament intended to admit that particular - - -
HAYNE J: I understand that, but where you have a due making provision not seen as excluding want of good faith, it is at least something to which we need, I think, to give some attention.
GUMMOW J: Yes, now what I want to know is whether Richard Walter is authority for the proposition that bad faith does not attract 75(v) relief.
MR CAVANOUGH: In respect of the Tax Act 1977 ?
GUMMOW J: I think, and being there are four Justices, it could be treated as it having assented to that proposition.
MR CAVANOUGH: Your Honour, my impression is that it is not clear - - -
GUMMOW J: We can sit here all day trying to go through it on the spot, but it needs to be thought about.
MR CAVANOUGH: Yes. Certainly Justice McHugh was very clear about it, that bad faith was not a ground that could be relied upon and Chief Justice Mason too, in my respectful submission.
GUMMOW J: Well, the question is open, then.
MR CAVANOUGH: Certainly.
McHUGH J: I thought Justice Brennan was to the same.
MR CAVANOUGH: I think Justice Brennan may have admitted bad faith, but because his Honour considered the Hickman principle applicable and bad faith is one of the - - -
GLEESON CJ: Qualifications.
MR CAVANOUGH: Yes, I think it is only for that reason that his Honour said bad faith may be relevant.
GUMMOW J: Well, would we not construe this provision in the same way? Would we not construe this provision of the FOI Act in the same way?
MR CAVANOUGH: Would we?
GUMMOW J: Yes.
MR CAVANOUGH: In my respectful submission, no.
GUMMOW J: You require strong words to achieve the result you contend for.
MR CAVANOUGH: Yes, but context also is important.
GUMMOW J: All right. They knew about Hickman when they drafted this.
MR CAVANOUGH: Yes, your Honour, but Hickman, as your Honour has already said, is a principle of construction.
GUMMOW J: Yes.
MR CAVANOUGH: Yes.
GUMMOW J: At the least it is a principle of construction.
MR CAVANOUGH: Yes.
GUMMOW J: And I do not quite see how you grapple with it at the moment, beyond repeating the word "conclusive".
MR CAVANOUGH: Well, your Honour, there is no inconsistency to be resolved. Hickman only has relevance where there is an inconsistency to be resolved and it is the principle that has been adopted for resolving inconsistencies between the provision which, on the one hand, appears to impose legally binding requirements and, on the other hand, a provision that purports to preclude the courts from giving effect to those legally binding requirements. Now, that is not this case. That is why Hickman is inapplicable. Here the words are all in the same provision, for a start, but beyond that, the real question is, what is the legal rule? There is, we say, no legally binding condition or duty on the Minister at the time of issuing the certificate and, hence, there is nothing for the Court to inquire into. If the Court pleases.
GLEESON CJ: Thank you. Yes, Mr Bell.
MR BELL: The starting point of our submissions is the scope of the statutory provisions governing the exercise of the power to issue the certificates and the scope of those provisions is not such as to justify a construction for which our learned friends contend. The provisions are to be found in sections 33A(2) and (2A) and section 36(3) of the Act.
Those provisions confer upon the Minister a discretionary power, upon satisfaction of certain things, to issue a certificate. They separately provide for the consequence of the issue of the certificate, and the consequence of the issue of the certificate, is only in terms as to certify, in the case of section 33A(2)(a):
that the document:
(a) is an exempt document -
and that the document:
(b) does not contain matter the disclosure of which under this Act would, on balance, be in the public interest.
In the case of section 36(3) the provisions:
conclusively certify that the disclosure of that document would be contrary to the public interest.
They do not certify that the document is an exempt document. What the Court should conclude, in our submission, from those provisions is that the legislature has made a choice between those kinds of provisions, having different attributes, which would conclusively certify the due making of the certificate itself and those kinds of provisions, in fact selected and contained in the Freedom of Information Act, which have a different operation. If the principle is, as stated in McGrath's Case, that the legislature must make clear an attempt to cut down, to qualify or to exclude the jurisdiction of the courts, then, in our submission, the provisions at issue cannot possibly pass that test.
McHUGH J: The argument that is put against you is there is no attempt to cut down the jurisdiction of the court. You can go along to the court but you must fail.
MR BELL: Yes. The principle, in our submission, applies not just in circumstances where there is an attempt to cut down or to exclude, but also to circumstances in which there is an attempt to qualify.
McHUGH J: That depends upon what your right is. If your argument is right, what is the certificate conclusive of?
MR BELL: It is conclusive of that which the statute prescribes.
McHUGH J: Well, take 33A, it says that it establishes conclusively that the "document is an exempt document" and one of the kind set out in subsection (1). Now, does the certificate establish that conclusively?
MR BELL: Yes.
McHUGH J: One of the things that I find a little surprising is the application for an order for review is not in the book. What is the relief that is sought in this application for an order of review? To set aside the certificate? To declare it is null and void?
MR BELL: The application that is relevant is the application that can be found at page 25 of the appeal book. The relief claimed is set out on page 32 of the appeal book in A to D, which is that:
A. A declaration that each of the decisions is void and/or contrary to law.
B. A declaration that as at and from 30 December 1999 s 33A of the FOI Act does not apply to documents . . .
C. An order quashing or setting aside the decisions.
D. Alternatively, an order quashing or setting aside the decisions and remitting them to the Respondent for reconsideration in accordance with law.
McHUGH J: Then the certificate is not conclusive. You want to quash the decision, which must mean you are quashing the certificate, and you want a declaration that 33A does not apply to the matters contained because - - -
MR BELL: Section 33A, your Honour, contains a provisions which gives rise to separate considerations, namely subsection (5). That provision provides that:
This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
And the applicant puts in contention in the application for judicial review the question whether or not subsection (5) gives him a right in a court to contend that section 33A does not apply because of the terms of subsection (5). That explains the reference in paragraph (b) of the prayer for relief to that provision.
McHUGH J: Now, what is going to happen in this litigation? Does it mean that all these documents will be examined one by one?
MR BELL: I would think most unlikely, your Honour.
McHUGH J: Why?
MR BELL: Because the attack is not upon the status of the documents but upon the question whether the discretion to issue the certificate was properly exercised, and that is not a case that depends upon the status of the documents.
McHUGH J: Well, what you say as to whether or not the discretion is properly satisfied - - -
MR BELL: Exercised.
McHUGH J: Exercised, your alleged way in is through the Minister's satisfaction, is it not?
MR BELL: No, your Honour.
McHUGH J: It is not?
MR BELL: I want to clarify that, your Honour. Section 33A(2) confers a discretion predicated upon the proper formation of the Minister's satisfaction with respect to the two conditions. Section 36(3) confers a discretion predicated upon the proper satisfaction by the Minister of a single condition. But the form of the conferment of the discretion follows the same formula. An applicant seeking judicial review of the exercise of the power in section 33A(2) or section 36(3) has at least two orthodox avenues available; the first being the question whether the satisfaction of the Minister with respect to the conditions has been properly formed, and the second is whether the Minister has properly exercised the discretion to sign a certificate. The applicant in the present proceedings puts in issue both orthodox means. It may be, in a given case, that the Minister is properly satisfied to look at section 33A(2)(a) and (b), for example, that the document is exempt and does not contain matter, on balance, the disclosure of which would be in the public interest, but nonetheless gave improper consideration to the question whether a certificate should be signed. This case has tended to focus, to date, in - - -
McHUGH J: What is the criterion upon which you would determine whether or not he had improperly determined to sign a certificate?
MR BELL: Criterion to be ascertained by reference to the scope and objects of the Act, in the absence of prescription in the statute as to what the criteria are. But one criterion would not be to achieve improperly - and perhaps, for political reasons, it may be put in argument - a cutting down of the applicant's right to have reviewed an adverse decision with respect to his access to the documents.
McHUGH J: That is circular, is it not, because his right depends upon determining what is his right? The argument against you is that the right is defined in such a way that he cannot get his hands on an exempt document that the Minister thinks is an exempt document and that the certificate is conclusive of.
MR BELL: Yes. That is the argument against us, your Honour. Our submission is that the provisions of the governing statute would need to provide differently than what they do in order for that argument to be made good and there was available to the legislature a perfectly satisfactorily formula for seeking to make conclusive, not just the effects of the certificate but the making of it itself. As I have already submitted, that formula was not adopted. That being so, section 33A(2) is a provision that creates a power that has legal consequences which this Court could assess and a court acting under section 39B or the terms of the Judicial Review Act and section 33A(2A) does not affect any of that, in our submission.
McHUGH J: What if "may sign" is an empowering provision? It has nothing to do with a discretion at all. It just authorises the power to sign.
MR BELL: Yes, that is the Russell v Duke of Norfolk point and it has not been raised against us, and we accept that it may be, but that is a question that the Federal Court or any court possessing jurisdiction, including this Court under section 75(v), would need to make in the exercise of its judicial review jurisdiction. What is said against us is that no court has a jurisdiction to resolve such a matter and our submission is that the words do not go that far and, therefore, the Federal Court or this Court, under section 75(v), could do just that. Section 36(3) is in no different category. It is slightly different in form but all that it does is conflate into the one provision the bifurcation of subject matter in section 33A(2) and (2A).
McHUGH J: But you have to go so far as to say that although the Minister is honestly satisfied and acts bona fide, that nevertheless the certificate is not conclusive in respect of the matters it says it is conclusive, because he failed to take into account something that he should have taken into account.
MR BELL: That is one part of our case and it is open to us, in our submission. That is what the (Judicial Review) Act gives a right to an applicant to contend.
McHUGH J: Well, it does, but the question is whether or not the rights given under section 11 include such a right as you maintain. When you look at the Tribunal provisions and you remember the history of the law immediately before the passing of this legislation, together with Sankey v Whitlam and the Court's approach in other cases, it is understandable that a view might be taken that the Minister's view is going to be conclusive about these things and it is not a matter for courts. The only way you review it is through the Ombudsman or through the Administrative Appeals Tribunal.
MR BELL: The Parliament may have taken a view so drastic - - -
McHUGH J: There is nothing drastic about it; what was regarded as drastic at the time, and it would have been regarded as very drastic from the bureaucrats' point of view, is the very enactment of this legislation.
KIRBY J: But, in your submission, that is significant because, once Parliament takes this drastic move, your prima facie paradigm has shifted.
MR BELL: We do submit that, your Honour, and the Act is not to be interpreted against the background of the common law not providing for rights of the kind that the Act created.
McHUGH J: This concerns the waterfront. Supposing that there was a conspiracy case had gone ahead and these documents were subpoenaed? The Minister gives a certificate at common law. What happens? The Court would inspect them in private and if it thought there were reasonable grounds for it, it would not allow the parties access to the documents.
MR BELL: Yes, it would exercise its jurisdiction to determine the claim of the plaintiff that a conspiracy had occurred and, in the course of so doing, would exercise its jurisdiction, privately, to look at the documents and determine upon their admissibility.
McHUGH J: It would not be investigating questions whether the Minister had taken into account this or that. It would look at the document and relate it. You want to go beyond that.
MR BELL: We do, your Honour, in exercising the same right which the presumed plaintiff did in the conspiracy case.
McHUGH J: So that a right that would not be available to you in judicial proceedings is, nevertheless, available to any Tom, Dick and Harry who wants to go along and get a hold of these documents.
MR BELL: Your Honour, no.
KIRBY J: Tom, Dick and Harry are citizens presumably?
MR BELL: They are.
McHUGH J: That may be and information are obtained for all sorts of reasons.
MR BELL: Your Honour, I want to clarify our position in the light of the debate under way. In a case based on common law conspiracy against a Minister for example, say, arising out of presumed circumstances in the waterfront dispute, a plaintiff would, in our submission, be entitled to subpoena State papers and then the respondent Minister would need to determine whether or not to certify them. That would enliven a jurisdiction, if not a duty, on the part of the Court to determine whether or not they were public interest immune. As I think your Honour Justice McHugh has already said, that is a matter ordinarily determined in private.
In such circumstances, it is not the right of the plaintiff to have access to them, it is not a freedom of information type case and the question whether or not the documents are admitted is determined according to procedures laid down by the Court.
HAYNE J: Not "admitted"; "produced" as distinct from "admitted in evidence"?
MR BELL: Yes, "produced", as distinct from "admitted into evidence" and then the question of admissibility arises and in such cases, depending upon the status of the document, special procedures might be adopted and the court has a significant procedural armoury available in order to deal with the sensitivities that arise in such cases. It may be in such a case, for example, that different counsel may be required in order to deal with the subject matter of the documents. I need not go into that.
In the present case, if, for example, the applicant alleges conspiracy or a matter of comparable gravity, say, bad faith, which is alleged, then, in our submission, the issues that arise in relation to that matter do not concern the status of the documents as exempt documents. What they concern is the state of mind of the Minister with respect to the exercise of the statutory power in section 33A(2). Now, in those circumstances, we are unable to see how the exempt status of the documents, which we submit is conclusively certified by the terms of section 33A(2A) and section 36(3), is a relevant issue. What is the relevant issue is whether or not the Minister was improperly activated. Similar issues arise with respect to the other grounds of law.
McHUGH J: But that depends upon impugning into this legislation some common law theories of judicial review. I mean, if somebody who had never heard of "judicial review" looked at this Act, would have been amazed by the argument that you put in this particular case. I mean, on its face, it is simple and clear.
KIRBY J: Not perhaps if they had read section 75(v) of the Constitution and knew the history of the power of the Court.
MR BELL: No, your Honour, not perhaps if they had read the Richard Walter Case.
McHUGH J: You have to read a lot more than section 75(v) of the Constitution.
KIRBY J: That would be a good starting point.
MR BELL: Or simply to read, in our submission, the terms of the Judicial Review Act which permit, expressly, the review of decisions of an administrative character, which these decisions plainly are, or to read the terms of section 39B of the Judiciary Act with respect to the Federal Court's jurisdiction, which clearly contemplate the issue of relief by way of prerogative relief in circumstances such as the present, or to read, latterly, the terms of section 39B(1A) which permit the Federal Court to exercise a jurisdiction with respect to matters that arise under federal statute, which this plainly is.
McHUGH J: All those things can be accepted, but the question is, what is the effect of the word "conclusively"? What did Parliament intend by that, particularly when given the right of review it did have?
MR BELL: It is the single most important issue in the case, your Honour, and the answer we give is the conclusivity is of the kind prescribed and the kind prescribed is that the certificate conclusively establishes in the case of section 33A(2A) that the document is "exempt" and "the disclosure" would not "on balance, be in the public interest". That is point one. Point two, in respect of section 36(3) it prescribes a little differently. It conclusively certifies that the document is such, the disclosure of which would be contrary to the public interest, and it goes not a wit further, in our submission. For that reason, the entire case put forward by the applicant can be answered by reference to the scope of the statutory provisions on which he himself relies, and we so submit.
GUMMOW J: How do you fit your submissions in with section 11, because have you not just conceded that there is no legally enforceable right of access, the moment you concede that it is an exempt document, because of 33(2)(a)?
MR BELL: Yes. We do not need a legally enforceable right of access to the document to have invoked the Federal Court's jurisdiction to adjudicate upon our separate right. Our separate right is to see that the statutory power conferred by section 33A(2) is properly exercised.
GUMMOW J: That is to say that which produced the contraction of your legally enforceable right?
MR BELL: Exactly, your Honour, and the Minister is - - -
McHUGH J: Where do you get your right to examine this satisfaction of the Minister? Or you say you do not examine that? Where do you get your right? Where is your standing? Where does it come from?
MR BELL: Your Honour, firstly, we put forward our grounds for judicial review in respect of both the Minister's satisfaction and what we contend is his discretion. To answer your question directly, your Honour, as to standing, the applicant was the person whose rights to full merits review, consequent upon the rejection of his application for access to the documents, was truncated by the issue of the certificate, the lawfulness of which he wishes to contend. So he is the person directly affected by the decision to issue the certificate. That is the matter of standing.
Your Honour goes further and asks, what is the source of our entitlement to rely upon the requirement that the Minister must comply with the law? That is no different question, in our submission. It is the Court's duty, we would respectfully submit, to determine whether or not the Minister has properly exercised this statutory power, and the question whether a person has properly invoked that jurisdiction is really a standing question. We say that the applicant has standing, that is the applicant that I represent, the applicant in the court below, because he was the person whose rights to merit review were truncated by the issue of the certificates.
GLEESON CJ: Is that a convenient time?
MR BELL: It is, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19 PM:
GLEESON CJ: Yes, Mr Bell. Just before you continue there was some mention before lunch of a case of Dobbs v The National Bank. That case was applied by the Court of Appeal and extended somewhat, in the Court of Appeal of England in a case of Bache & Co (London) Ltd v Banque Vernes [1973] 2 Lloyd's Rep 437, where Lord Denning explained the principle on sociological grounds being that bankers are so honest and reliable and so unlikely to make a mistake that the court gives effect to these provisions. Yes, Mr Bell.
MR BELL: I want to move to the point made by my learned friend in regard to paragraph 22 of our outline of argument. That point is that the scheme of the FOI legislation is such that there is only one avenue of review in respect of decisions to issue conclusive certificates. That avenue of review being the avenue in Part VI, which does not encompass review of the decision to issue the certificate itself, but rather the question whether reasonable grounds exist for the claim.
In our submission, the principles in relation to this question have been of longstanding and a convenient source of them is the case of Webster v Bread Carters' Union (NSW), a decision referred to in our outline of argument, but regrettably not in our list of authorities. I want to hand to the Court a copy of the judgment of Justice Long Innes sitting in the Equity Division of the Supreme Court of New South Wales.
GUMMOW J: This is usually referred to in relation to injunctions.
MR BELL: His Honour examined the principles at page 107 of the judgment, the last page of the three-page judgment that I have given to your Honours. The principles are set out in the left-hand column at about point 5 on the page, in the first complete paragraph. I do not desire to read that entire paragraph to your Honours, but I rely upon the exposition of his Honour there given. The facts of the case are not - - -
GUMMOW J: This does not meet Justice McHugh's point. That is to say, what is in the jurisdiction? What is its content?
MR BELL: Yes, that is true, it does not meet that point. I am here meeting a different point. I will meet the point about content, your Honour Justice Gummow, and I will do that in the context of submissions I want to make in relation to the Richard Walter Case. But in respect of the point made by my learned friend, that there is a scheme in the Freedom of Information legislation which indicates that there is but one avenue of review, in our respectful submission, there is no such scheme. For that reason, East's Case can be distinguished. We would invite the Court to look carefully at the provisions of the Freedom of Information Act and, in particular, those provisions which define the jurisdiction of the Tribunal with respect to the conclusive certificates.
Those provisions are to be found in section 58. There is one provision, in particular, in that section which we submit is fatal to the proposition that there is a scheme of review in this legislation which encompasses the matter in respect of which we take to the Federal Court.
That provision is in subsection (3) which provides:
Where there is in force in respect of a document a certificate under section 33, 33A, 34, 35 or 36, the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such question in relation to that certificate as is provided for in whichever of subsections (4), (5) and (5A) applies in relation to that certificate.
The Court is familiar with the provisions of those subsections.
GUMMOW J: Yes, this goes to the question I was asking this morning. What is the content of the review in the Tribunal?
MR BELL: The content of the review of the Tribunal is expressly limited and that, in our submission, indicates - - -
GUMMOW J: So it is not a merits review?
MR BELL: No, your Honour. It is a species of review, not exactly merits review, sui generis in form and excluding a particular, expressly stipulated matter. In our submission, it is not possible, if faith be paid to the principles of the kind articulated - - -
McHUGH J: Mr Bell, is not the only purpose of that to ensure that the Tribunal is constituted in accordance with 58B, namely, to say three presidents or a president presiding? It goes on to say:
but the Tribunal, constituted in accordance with section 58B, may determine such question -
that is that question that is just referred to -
in relation to that certificate as is provided for in whichever of subsections (4), (5) and (5A) applies - - -
MR BELL: No, with respect, your Honour, it does not only do that. Subsections (3) to (5) define the jurisdiction of the Tribunal with respect to conclusive certificate matters. Separate provisions of the Act set forth the manner in which the Tribunal must be constituted when exercising that kind of decision-making power.
Section 58(3) is, perhaps, the root source of the jurisdiction of the Tribunal in such matters. Defining the jurisdiction first in negative terms as to not including the thing that we have taken to the Federal Court, but then conferring jurisdiction in positive terms as picked up in subsections (4), (5) and (5A). Then the provisions go on to say what that jurisdiction is and in respect of paragraph (4) the jurisdiction is to "determine the question whether there exist reasonable grounds for the claim." In respect of subsection - - -
McHUGH J: Arguably, there are no reasonable grounds for the claim if you have misconceived the question.
MR BELL: Arguably, and there is - - -
McHUGH J: Or you have taken into account matters that you should not have taken into account.
MR BELL: Arguably.
McHUGH J: Or no reasonable person could have reached that decision, that is obvious. Wednesbury must be covered.
MR BELL: Arguably, your Honour.
McHUGH J: What issue could you not raise under the reasonable grounds rubric that you could raise in judicial review?
MR BELL: The attack that we want to make is not upon the grounds, but upon the giving of the certificate itself and that attack is different in kind to the grounds that are encompassed within reasonable grounds as specified in section 58(4). There is no authority of this Court on what reasonable grounds are specified in that subsection encompassed, but we apprehend that reasonable grounds for the claim confine and are intended to confine the kinds of matters that might ordinarily be ventilated in a full judicial review in relation to the exempt status of the documents. Thus, if there is a conclusive certificate standing in the way of an applicant seeking merits review in the Tribunal of a decision to refuse access, then it erects a barrier much higher than that which would otherwise be in existence.
We do not understand "reasonable grounds" in subsection (4) just, for example, to encompass the four grounds of judicial review which might be available to the Federal Court or to this Court. Even if there was some overlap, it needs to be taken into account that the jurisdiction of the Tribunal does not encompass the decision to issue the certificate - see section 58(3) - whereas the jurisdiction of the court, if the argument of the respondent in the present case be right, would encompass the decision to give the certificate and a positive finding by a court might result in the decision itself being quashed.
McHUGH J: I do not know why you say that. It says:
the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such question -
and that "such question" must be the reviewing of the decision to give the certificate.
MR BELL: Your Honour, with respect, the question is specified to be the one that:
is provided for in whichever of subsections (4), (5) and (5A) applies -
and subsections (4) and (5) make that provision in terms to which I have taken the Court. Those terms do not encompass the decision to review the certificate but rather are confined to the question whether or not "there exist reasonable grounds for the claim", as mentioned in those two sections.
HAYNE J: I am sorry, can I just understand that. Do you say that "such question" in (3) is forward looking?
MR BELL: I do.
HAYNE J: It looks forward to (4), (5) and (5A) and what follows after the words "the question whether" in each of (4), (5) and (5A)?
MR BELL: I do say that, your Honour.
McHUGH J: The other way of looking at it is that "such question" is backward looking, but what follows after it confines the examination of the review of the decision to the question whether there exist reasonable grounds for the claim it is an exempt document.
MR BELL: Your Honour, it may be against our case but subsection (3) states:
the powers of the Tribunal do not extend to reviewing the decision to give the certificate - - -
GUMMOW J: It is the use of the word "but" that is the problem.
MR BELL: Yes, perhaps it is. Perhaps it is.
GUMMOW J: It is just an unhappy drafting that gives rise to an ambiguity.
MR BELL: Yes. Maybe there are two ways of looking at it, the one about which I have made submissions, the other being the other falling from your Honour Justice McHugh. The end result is the same, though, and that result is that the capacity of the Tribunal to examine the conclusive certificate decision, if I can call it that generally, is a capacity which is circumscribed by subsections (4) and (5) and that is not a scheme for review, in my respectful submission.
McHUGH J: It is a question of what comes under the rubric of reasonable grounds for that claim. But can I ask you another question which puzzles me? When 33A(2A), for example, talks about a certificate establishing "conclusively that the document", conclusively against whom? It can only be the applicant, can it not? It can have no other meaning.
MR BELL: Not without statutory support.
McHUGH J: But the only context that this is operating in is an application by a person for the document. Now, it only arises in the context of rejecting the application.
MR BELL: Yes, your Honour.
McHUGH J: So it must establish conclusively against that person.
MR BELL: For the purposes of the - - -
McHUGH J: The certificate cannot be used anywhere else.
MR BELL: No. The certificate establishes, in the context of the statutory provisions, in the setting of which it is issued, the conclusivity of the status of the documents or the consequences of release, in the case of section 36(3).
McHUGH J: Can you give me any illustration where, on your argument, the certificate is conclusive? Because it seems to me it cannot ever be conclusive. It can only be conclusive if, after a court exercising judicial review has examined it, upholds the grounds. It is then conclusive It is not conclusive until then.
MR BELL: It is conclusive of the status, of the exempt status of the documents or the consequences of disclosure, for all purposes, under the Freedom of Information Act, your Honour.
McHUGH J: Yes, but you say that it is not conclusive, because we can examine it and - - -
MR BELL: That is not under the Freedom of Information Act, your Honour. That is exercising the jurisdiction of this Court.
McHUGH J: Yes, but the effect of it is that it then is not conclusive under the Freedom of Information Act because one of the orders you seek is, in effect, to quash it. So it is not conclusive.
MR BELL: That is the court's function, your Honour.
McHUGH J: I understand that is the court's function, provided that there is some right that has been infringed. That is the question.
MR BELL: Yes, your Honour, that is the question.
McHUGH J: When I came into this Court this morning I thought this was an easy appeal, easy dismissal. I thought the appellant had little prospects of success. The more I listen to the argument and examine the legislation, I have to say it seems to me there is a lot of substance in what the appellant says.
MR BELL: Well, let me try to persuade your Honour to the contrary.
GLEESON CJ: Justice McHugh means, the more he listens to your opponent's argument.
MR BELL: I hope to restore your Honour to the state of satisfaction that you had this morning. Your Honours, we would agree that the question is whether a right has been infringed such as would permit an applicant to invite this or an appropriate court to exercise its jurisdiction. The right that we say has been infringed is our right to see to the proper observance of the statutory power conferred by section 33A(2) and there is but one place which has a power of adjudication upon that fundamental question and the Minister is as responsible to the law as is the applicant and the Minister must observe the constraints expressed and adhered in section 33A(2) and if he goes outside those constraints - and in this case it is the Minister's delegate that is at issue - then we submit that it is orthodox law that a plaintiff can come to court and ask the court to so determine.
GUMMOW J: Yes, where do we find the power of delegation? That what is what was worrying me too.
MR BELL: Subsection (6).
GUMMOW J: The delegate will not be before the Parliament.
MR BELL: Section 33A(6). We appreciate, your Honours, that there is a question about the content, the width or - - -
GUMMOW J: So there could be a general delegation under subsection (6).
MR BELL: Subsection (6) provides - - -
GUMMOW J:
The responsible Minister of an agency may, either generally - - -
MR BELL: Yes:
delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.
And that has occurred. We would accept - - -
GUMMOW J: That has some impact upon this notion of political responsibility. The Minister is going to say, "It was not me, it was the delegate."
MR BELL: Yes, your Honour.
GUMMOW J: And there is no Westminster tradition that the ministers resign over these things - bureaucrats fall into traps. Not in this country, I do not think.
MR BELL: Yes, your Honour. Perhaps some species of action under section 58. We accept the key question in the case is whether or not the provisions of section 33A(2) and (2A), just to use those provisions as an example, operates so as to provide substantive power to the delegate to make a decision which is in error of law, which is in breach of the rules of natural justice, which was given for improper purposes. In bad faith or fraud, we accept that is the issue before the Court. In our respectful submission, the Court would not find that provisions of these particular nature would confer a power so wide upon a decision-maker.
McHUGH J: Well, supposing the Court came to the view that the Minister had erred for Wednesbury reasons.
MR BELL: Yes.
McHUGH J: Do you say Wednesbury reasons are examinable?
MR BELL: Yes. There is no reason to exclude any species of the genus of judicial review.
McHUGH J: Bias?
MR BELL: All of them, your Honour, and there is no reason to exclude any of the species stipulated in the Judicial Review Act governing the exercise of statutory power generally, which include both of the matters to which your Honour has made reference, and the Parliament knows, assuming the constitutional power to do it, which is another matter to which I will come, that if it wishes to confer such a power upon a decision-maker, then there is available a certain form of words which will bring about that result and that form of words was that to which approval was given, subject to Hickman - another matter to which I will come - in the Richard Walter Case and that has not been done.
GLEESON CJ: Mr Bell, was the Freedom of Information Act enacted at the same time as the AD(JR) Act and the Administrative Appeals Tribunal Act?
MR BELL: No, your Honour, and that is a relevant consideration. In that regard, I invite the Court to consider the analysis of Chief Justice Black in the court below, who examined the chronological series in which the legislation at issue was introduced. The analysis is to be found at appeal book page 140 to 141. As his Honour explains - - -
GUMMOW J: It is reported in [2000] FCA 1420; 102 FCR 215.
MR BELL: Thank you, your Honour.
GUMMOW J: What paragraph of his Honour's reasons?
MR BELL: Paragraph 6 through to 15. In summary, the Freedom of Information Act came into the statutory setting constituted by the then elements of what his Honour rightly described as the new administrative law. So the provisions of the Judicial Review Act, providing for judicial review of decisions of an administrative character, unless excluded, comprise the setting into which the Freedom of Information Act was introduced. His Honour makes reference to the second reading speeches of the relevant legislation as part of an argument which we respectfully ask this Court to accept.
GUMMOW J: Section 39B came later, though.
MR BELL: Section 39B came later, and I did not include 39B in what I just said - - -
GUMMOW J: Yes, that is right.
MR BELL: - - - but I should have pointed out that section 39B came later, and I should, in that spirit, acknowledge that 39B(1A) came later.
GUMMOW J: Much later.
MR BELL: Much later, and even more recently amended. An additional consideration provides support for the proposition that it was not the intention of Parliament to cut down the operation of the Judicial Review Act when it introduced the relevant provisions of the Freedom of Information Act. That consideration is that in the Freedom of Information Act reference is made to the Judicial Review Act expressly, where it is intended that the provisions of that Act shall not apply. The two provisions to which regard should be had in this connection are section 26(1A), which provides that:
Section 13 of the Administrative Decisions (Judicial Review) Act does not apply -
in relation to a decision in respect of access, as mentioned in that section - - -
GUMMOW J: Section 26?
MR BELL: Section 26(1A). I assume, therefore, introduced by amendment.
GUMMOW J: Yes, thank you.
MR BELL: And the second is a like provision in section 58A(7), which provides to the same effect but in respect of the decision as mentioned in that section. Where the Parliament sees fit to exclude the operation of an Act that might otherwise apply by virtue of the Act applying generally but does not make any provision excluding the Act in any other respect, the inference clearly arises that it was not the intention of the Parliament to qualify the operation of the Act other than in the respect specified, and we so submit.
Moreover, the Judicial Review Act, of course, contains a schedule into which may be inserted descriptions of decisions made under Acts for the purposes of excluding such decisions from the purview of the Judicial Review Act and no such exclusion has ever been included with respect to the Freedom of Information Act.
HAYNE J: Is there any of the scheduled decisions that would represent a close analogy to the kind of decision that you say is subject to review here?
MR BELL: We will respond to that later, if we may, your Honour.
HAYNE J: Yes.
MR BELL: I now want to make submissions in relation to the application of the Hickman principle.
McHUGH J: You are pushing against an open door with that, are you not? The appellant does not submit that this is a jurisdictional question. He stands or falls on whether or not the legislation enacts a substantive rule of law.
MR BELL: Yes, but there is a twist in the argument which is a very serious one from the point of view of the actual content of the review of the rights of the applicant, your Honour. The twist in the argument, of course, is that the jurisdiction of the court, be it the Federal Court or, I would submit by analogy, this Court, would be confined only to reviewing decisions invalid on their face. In other words, the content of the jurisdiction would be only to review on that ground. So, bad faith, out; natural justice, out, error of review, out; fraud, out. Therefore, in our submission, the concession that the jurisdiction of the court is available is a hollow one and pays no regard to the fact that jurisdiction of the court must have content to be a jurisdiction at all.
McHUGH J: That is so, but the question is, what jurisdiction is it invested with and the argument against you is it is not invested with jurisdiction to determine this question.
MR BELL: If it is not, your Honour, then it has to be subject to Hickman. We submit that as - - -
McHUGH J: Sorry, I put that very badly. There are no rights that it can determine.
MR BELL: Your Honour, that is the argument that is against us and it would appear that the argument against us is that, therefore, Hickman has no relevance.
McHUGH J: It is as if the Freedom of Information Act had never been enacted, at least so far as these particular documents are concerned, that is the argument against you. Section 39B would not help you.
MR BELL: That is the argument against us, your Honour, but the argument is not that it is as if the Freedom of Information Act had never been enacted, as I understand it, with respect. The argument is that the content of sections 33A(2) and (2A) are so wide as to permit a minister's delegate to commit a fraud upon the exercise of the power.
McHUGH J: Yes, that is right.
MR BELL: Your Honour, in our respectful submission, that argument calls for the application of the principles expounded in Hickman's Case. In our respectful submission, so soon as the Court finds provisions which seek to have that effect, then Hickman's Case comes into view. If not, constitutional questions.
GUMMOW J: What does Hickman's Case require as a matter of construction?
MR BELL: It is, your Honour, and the way that it would come into effect in the present case would be that if the submissions I have made today were rejected and those of my learned friend accepted, then there would be a requirement in section 38A(2) for the Minister or his delegate to be properly satisfied of a matter and to exercise properly a statutory discretion which would invoke, in the usual course, certain administrative law principles and to jurisdiction on the part of the court to review, with which provisions there would be an inconsistency by virtue of the subsequent provisions in section 33A(2)(a) which e make provision in relation to the conclusivity of the document issued.
The court would, in this situation, be confronted with the conceptual problem arising, as it has been described, between subsection 33A(2), which lays down statutory requirements for the exercise of the power, and section 33A(2)(a), which appears to subtract from those requirements or detract from the capacity of the court to exercise its jurisdiction in relation to an examination of whether those requirements have been met.
So the question of construction of which Hickman speaks is called in to play. Although the form of section 36(3) is somewhat different in form, nonetheless, the same problem of construction, that is, a conflict between the earlier and the later provisions of section 36(3), arises. That being the case, in our submission, the appellant must grapple with the implications of Hickman in relation to this matter and it is a serious thing, indeed, for it to submit that Hickman is not relevant because the consequences of that submission would be that this Court is unable to exercise any jurisdiction in respect even of a fraud upon the exercise of a power because of the content of statutory provisions which appear to detract from its capacity so to do.
In our submission, submissions which would appear to lead to that principle being accepted ought to be rejected and the Court would constrain, we would respectfully submit, not to adopt a course that leads to that forbidden territory.
HAYNE J: Now, this is a branch of your argument that proceeds from the premise, does it not, that in 33A(2A) the phrase "so long as it remains in force" is to be understood as so long as it remains in force according to its own terms?
MR BELL: Your Honour, I am grateful for the interjection because I would, I think, accept what has fallen from your Honour as an alternative argument but - - -
HAYNE J: Because "so long as it remains in force" might be understood as meaning that the certificate is capable of falling out of force for a number of reasons, or it may mean only that the certificate within its four corners may provide for its expiration by effluxion of time.
MR BELL: Yes. Our submission is that the expression "so long as it remains in force" is apt to include the circumstances of according force removal and that it is not confined to circumstances where its operation is sunsetted. In other words, there may be a range of reasons that bring that phrase into play and this is relevant to our argument which I have previously put as well as what I am now submitting. But more fundamentally, we submit, that even if the words were not there, so that the words simply read, "Subject to the operation of Part VI, such a certificate establishes conclusively that the document (a) and (b)", then - - -
GUMMOW J: Well, the phrase "so long as" is ambiguous, too. It is this vernacular drafting that is going on.
MR BELL: Yes.
GUMMOW J: It means "for such period as"?
MR BELL: Yes.
GUMMOW J: Or "if" and "so long as"?
MR BELL: Yes.
GLEESON CJ: Or provided.
GUMMOW J: Or provided.
MR BELL: Or provided.
HAYNE J: You cannot have "provided". That is naughty drafting these days, apparently.
GUMMOW J: Yes, yes.
MR BELL: Yes, clear but naughty.
GUMMOW J: You have to use litigation instead.
MR BELL: Yes. Whatever be the meaning of the words, our submission is that there is a conflict between (2) and (2A) in 33A and Hickman is apposite to its resolution, at the very least. This is our last point of argument. This argument can be tested by reference to the decision in Richard Walter and, in our respectful submission, Hickman was regarded as relevant to the resolution of the conflict between the two relevant provisions in this case by a majority of the Court and I give to the Court the page references where that majority can be found: Chief Justice Mason at 187 point 1 and 188 point 3; Justice Brennan, as he then was, at 194 point 4, 195 point 5, 197 point 7 and 198 point 3; Justices Deane and Gaudron at 211 point 2.
GUMMOW J: But do you not count in dissentients?
MR BELL: I am not sure that anybody really dissented on this principle, your Honour. I was going to mention Justice McHugh's judgment, particularly at 242 point 1 where his Honour contemplated that a statute might make a course of action by a Commonwealth officer non-justiciable, a matter to which I will come.
GUMMOW J: I am just looking at the headnote, which may be dangerous, but at the top of 169, line 6:
Held, further, by Mason CJ, Dawson, Toohey and McHugh JJ, that s 177(1) did not purport to deprive - - -
MR BELL: No.
GUMMOW J: Did not Justices Deane and Gaudron dissent from that? They said it did purport to deprive, I thought.
MR BELL: Yes.
GUMMOW J: And then are you not counting them back in for another purpose?
MR BELL: I am counting them back in on this principle, your Honour. Perhaps I will take your Honours to the judgments first. Chief Justice Mason, firstly at page 180 at about point 8 on the page, refers to Hickman in reference to privative clauses. Then at page 187 point 1 his Honour says this, running down from 186:
Furthermore, their Honours do not appear to have taken into account the significance of s 175. That provision is of critical importance because it indicates that compliance with any of the provisions of the Act is not essential to validity. Viewed in the light of s 175, s 177(1) is a provision which gives effect to the substantive expression of intention in the earlier section. The reference to "due making" of the assessment in s 177(1) reflects the content of s 175.
Then over the page at 188 his Honour makes clear that the construction that he adopts is one that is consistent with the Hickman principle. I read from about point 3. Of course, that principle encompasses a jurisdiction on the part of the court to review for bad faith. His Honour at about point 4 mentions:
I did not understand the taxpayer to contend that the assessments were tentative or were vitiated by bad faith or improper purpose otherwise than by reference to the fact that two taxpayers were assessed to tax -
et cetera, in order to make clear that the kind of case before him did not include a claim based on improper purposes or bad faith. So that it is clear, in our respectful submission, that the Chief Justice assimilated his argument to include the Hickman principle, and that is to be expected. It was binding upon him and no person in the Richard Walter matter appears to have sought leave to have it reviewed.
Chief Justice Brennan makes explicit reference to the Hickman principle in the passages of the judgment to which I have given a reference. I think it is unnecessary for me to take the Court to those passages. Their Honours Justices Deane and Gaudron at 210 to 211 cite Hickman at the bottom of page 210 and then say at 211:
That approach should, in our view, be applied to the construction of s 175 of the Act. The result of its application is that s 175's protection from invalidity is applicable only if the purported "assessment" -
and then there is a description of the Hickman list.
Justice Dawson did not consider Hickman to be relevant at 222 to 223, neither did Justice Toohey at 233, but he did not consider the case before him to give rise to questions of power at all, on the same page. Your Honour Justice McHugh's judgment is to be found at page 242 relevantly and your Honour dealt with the question of the justiciability of the issue and your Honour comments on the David Jones Finance matter and then at the bottom of page 241 states that:
Parliament cannot oust the jurisdiction conferred by s 75(v) of the Constitution, but it can legislate in such a way as to limit the cases that come within its scope. One way this can be done is to make a course of action by a Commonwealth officer non-justiciable.
I do not take your Honour to be making that statement in a way that is intended to doubt the application of the Hickman principle in an appropriate case. Of course, in an appropriate case the Hickman principle would be applied to make justiciable a matter properly arising concerning, for example, the mala fide exercise of a statutory power.
GLEESON CJ: Mr Bell, from one point of view the only purpose of having a certificate in this plan is to form a context in which certain procedures have to be followed. The legislation would not have a different effect, would it, if it simply said, "Where a question arises as to whether a document is an exempt document, that question is to be decided by the Minister"? If the Minister decides that the document is an exempt document, then that decision establishes that the document is exempt for all purposes.
MR BELL: It could have done that, yes.
GLEESON CJ: Expressed in that way, characterising the Minister as an administrative decision-maker deciding an issue, it would come straight within the Hickman principle, would it not?
MR BELL: Yes, it would, your Honour.
GUMMOW J: Can I just ask you this. Who would be making the decision otherwise as to whether or not one gets access under - in claims of right of access under 11, who processes it and decides it, without any involvement of the Minister?
MR BELL: This is an important question, your Honour, and it is the decision of the Tribunal - - -
GUMMOW J: No, the initial request under 11.
MR BELL: The initial request? Yes, I understand.
GUMMOW J: In ordinary decision making, under this Act, what happens?
MR BELL: The FOI officer of the relevant department.
GUMMOW J: Yes, where do we see that?
MR BELL: Where do we see that?
GUMMOW J: That is right, I think. One way of looking at all of this is to see 33A as directed to the FOI officer. In other words, it is no good the applicant having some big debate with the FOI officer.
MR BELL: My learned friend interpolates that it is section 18 and 23. Section 18, to which the Court has been taken, makes provision for access to documents, and section 23 makes provisions for decisions to be made by authorised persons.
GUMMOW J: That is it.
MR BELL:
Subject to subsection (2), a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or . . . by an officer of the agency acting within the scope of authority exercisable by him -
I think that answers your Honour's question.
GLEESON CJ: Who is it who decides to raise the question whether the document is an exempt document?
MR BELL: There is a duty - I think it probably is a duty - at least a capacity, on the part of the authorised person mentioned in section 23 to determine whether or not documents are exempt. Because, after all, there is not a right to exempt documents. The person's responsibility is to determine what is and what is not exempt. A different issue arises in respect of who raises - whether or not a certificate should be issued, and I would imagine that that happens, in the normal course of the administration by the officer of his or her duties, such that the question of whether a certificate should be issued is brought to the attention of the Minister.
GLEESON CJ: So presumably there is some administrative instructions to the authorised officer - - -
MR BELL: Yes.
GLEESON CJ: Directing his or her attention to the sort of documents that might give rise to problems.
MR BELL: That is our apprehension, and that is perfectly proper. Your Honour the Chief Justice put a question to me, and I wish to go back to that. Your Honour posited the situation where a statutory provision said something like this: where the Minister was satisfied that a document was exempt, then he could say so.
GLEESON CJ: His decision on that matter would be conclusive.
MR BELL: Yes, and his decision on that matter would be conclusive. That is the kind of circumstance that comes squarely within the decision in Richard Walter, in our submission. The conclusivity provision contains a "due making" provision such that the provision certifies not just the outcome, not just the product, of the decision-making process, but the decision itself.
GLEESON CJ: In one sense here, the certificate is just mechanical. It is a document that has to contain certain information or statements of reasons and it has to be signed, but that is just a way of recording a decision and, to a certain extent, some reasons for the decision.
MR BELL: It is, your Honour - - -
GUMMOW J: Your client applied under section 11, I suppose.
MR BELL: He did, and he had a - - -
GUMMOW J: And he was knocked back.
MR BELL: And he was knocked back.
GUMMOW J: Where do we see - we do not, I suppose - who it actually was that knocked it back.
MR BELL: I do not think you do. I would not want to be criticised for a small appeal book, your Honour. The sequence of events was exactly as your Honour has described. He was initially knocked back, I would apprehend, by the ordinary delegate exercising section 23 responsibility. Then the matter went on internal review, and we must remember that there is an internal review right as well.
GUMMOW J: Where do we get that?
HAYNE J: Page 11 of the appeal book tells us factually what happened, does it not, including reference to the sections that were said to be engaged?
MR BELL: Yes, I think I accept that, your Honour. Section 54 of the Act provides for internal review, and a different person within the agency would have adjudicated - did indeed adjudicate - upon the respondent's application for internal review. From that, the respondent appealed to the Administrative Appeals Tribunal, after which a certificate was issued in the terms - - -
GUMMOW J: What you are doing is a form of collateral attack, as it were, upon the proffering of that certificate.
MR BELL: I do not think I could deny that, your Honour.
GUMMOW J: Yes. I am not saying that is a bad thing; I am just trying to analyse what is going on.
MR BELL: Yes. I think the certificate itself was a form of collateral attack upon the ordinary processes in the Tribunal, and there is nothing improper about that either, not in concept anyway. Your Honour the Chief Justice made reference to the provisions being mechanical and in a sense they are, but what they are not, in our submission, is sufficient to constitute a "due making" privative clause, which is, I think, part of the argument put against us. But that brings me back to the arguments which I have already articulated today and I do not wish to repeat them.
In summary, on this Hickman point, if we are wrong to say that the provisions do not contain a substantive basis for the making of a decision of the kind alleged and in fact the Court finds that they do, then, in our submission, nonetheless Hickman applies for the reasons that we have given. So that the full amplitude of the grounds of review available under the Hickman principle would be available to the court exercising judicial review jurisdiction.
GLEESON CJ: Under the AD(JR) Act? Have you invoked the jurisdiction?
MR BELL: Under the AD(JR), yes, we have.
GLEESON CJ: You invoke the jurisdiction under the AD(JR) Act, but the operation of the Hickman principle could be used, could it not, to demonstrate that the AD(JR) provisions were excluded?
MR BELL: That is a good question, your Honour. I think we would submit that there would be another source of inconsistency between federal law that would need to be resolved by reference to the principles. I have articulated one source of inconsistency, that is between section 33A(2) and (2A). Another source of inconsistency would be between the provisions of the Judicial Review Act and, indeed, the Judiciary Act, on the one hand, providing for the Federal Court's jurisdiction, and on the other the conclusivity provisions of the Freedom of Information Act.
GLEESON CJ: But if you wanted to go to the Federal Court and say, "This legislation ought to be read in the light of Hickman and that preserves to us a `bad faith' argument" - - -
MR BELL: Among other things.
GLEESON CJ: Well, just sticking with the "bad faith" argument at the moment. That is not a way of invoking the jurisdiction under the AD(JR) Act, is it?
MR BELL: No, it is not, your Honour, but the question of principle that arises is whether or not exercising the jurisdiction conferred by the Judicial Review Act, the court exercising that jurisdiction is wholly excluded from doing other than exercising a power to review for invalidity on its face, my learned friend's argument, or might exercise that jurisdiction in terms of the Hickman principle.
GLEESON CJ: But Hickman is regarded, is it not, not as a restriction on the capacity of the courts to undertake judicial review, it is regarded as an expansion of the authority or power of the decision-maker?
MR BELL: A qualification, a qualified expansion, your Honour.
GLEESON CJ: Yes, quite, subject to the three, or whatever they are, qualifications. Yes.
MR BELL: Whatever they are. Yes, I accept that, your Honour. It is a way of arriving at the conclusion that the privative clause operates to expand the jurisdiction of the decision-maker in substantive terms and, if the court were to take the view that the provisions of the Freedom of Information Act were, as in Richard Walter, to be interpreted in a way that expanded the substantive power of the decision-maker, then the court in that instance would need to consider whether or not Hickman operated, nonetheless, to enable the court to review for the Hickman grounds.
GLEESON CJ: Now, suppose it did. What would be the procedure?
MR BELL: To answer the question "Yes", as I think the court would answer in any event, but confine the answer to judicial review to be exercised consistently with the principles in Hickman's Case. It is our submission that the Federal Court exercising either Judicial Review Act or Judiciary Act power could so do, and we so submit.
McHUGH J: But do you not have different arguments in respect of the two reviewing legislative enactments? In your AD(JR) Act you throw all the weight of your argument on the question of satisfaction. You do not mention signing. A decision that you seek to strike down is set out at page 25.
MR BELL: Your Honour, it is specifically expressed differently. I read from page 25, paragraph 1(i) - - -
McHUGH J: The decision was that:
(i) the Respondent was satisfied - - -
MR BELL: (i) is:
the Respondent was satisfied in relation to documents . . . that the documents met the criteria . . . and that a certificate be signed -
Then (ii):
the Respondent was satisfied in relation to documents . . . that
the documents met the criteria . . . and that a certificate be signed - - -
McHUGH J: Yes, but it is the satisfaction that is the - - -
MR BELL: Your Honour, this is our application and we are here seeking to put in issue the validity of both the satisfaction and the discretion to issue the certificate. With respect, your Honour, that is what the words do. I hope they do and I would want to explain to this Court that if they do not, that is the intention.
McHUGH J: I certainly did not read it that way.
GUMMOW J: But you do not seem to be challenging the final decision on internal review of your section 11 application. You seem to be challenging the decision along the way - - -
MR BELL: It came afterwards.
GUMMOW J: - - - with the effect of producing the certificate which then presented a great obstacle to your success on your section 11 application.
McHUGH J: What do you mean it came afterwards?
MR BELL: The applicant appealed to the Tribunal, made application for review, more precisely, and after making that application, the conclusive certificate was issued, so that that - - -
GUMMOW J: What was the obstacle at the earlier stage that had been fatal to you that made you get - - -
MR BELL: I think simply a decision on the merits that the documents were exempt, your Honour. In other words, the authorised officer and the review delegate decided on the merits that the documents were exempt, although the applicant was successful to an ever decreasing extent, so that the final documents at issue are those the subject of these proceedings.
GLEESON CJ: In a sense, the position you seek to reinstate by getting rid of this certificate, with all that it entails, is to continue the process of merits review unencumbered by the certificate.
MR BELL: Correct, your Honour. That is the impact that it had - - -
GLEESON CJ: Which is only another way of saying it would be the Tribunal, rather than the Minister who would decide whether the documents were exempt.
MR BELL: That is correct, your Honour.
GLEESON CJ: What the Minister has attempted to do is take that decision out of the hands of the Tribunal.
MR BELL: He has, your Honour, and would be entitled to do it again in conformity with law, so - - -
KIRBY J: You want to get rid of this invalid certificate made by an invalid process. The Minister presumably could then make another decision?
MR BELL: Certainly, your Honour, this case says nothing about the legal capacity of the Minister or his delegate to issue a certificate in appropriate circumstances in an appropriate way.
KIRBY J: In that sense it is not necessarily to win you the ultimate battle of merits review. You still may have to run that gauntlet at a later stage.
MR BELL: Perhaps will, your Honour, perhaps will. Yes, the question of whether the certificate will ultimately govern the nature of the review exercise to be carried out by the Tribunal is a matter for whether or not the certificate power is re-exercised.
Your Honour Justice Gummow asked whether or not Schedule 1 of the Judicial Review Act excluded decisions of a kind like those at issue in the present case, or perhaps it was your Honour Justice Hayne, and one such decision is item (r) in Schedule 1 which makes reference to decisions under the Extradition Act, and one such decision is made provision for in section 52 of the Extradition Act which provides that:
A certificate by the Attorney-General stating that:
(a) Australia or another specified country is a party to a specified treaty;
(b) the treaty entered into force for Australia or that other country, as the case may be, on a specified date; and
(c) as at the date of the certificate, the treaty remains in force for Australia or that other country;
is, for the purposes of any proceedings under this Act, prima facie evidence of the facts stated in the certificate.
GUMMOW J: That is the provision we looked at in the Hong Kong Case.
MR BELL: Yes, your Honour.
HAYNE J: Thank you.
MR BELL: If your Honours please.
GLEESON CJ: Thank you, Mr Bell. Yes, Mr Cavanough.
MR CAVANOUGH: It is respectfully submitted as to the Hickman principle, first as to Richard Walter, that my learned friend's head count is inaccurate, that, in fact, the Chief Justice, Justice Mason, is not in my learned friend's camp, that, rather, his Honour clearly found that the principle was not applicable in that case. It is plain from what his Honour said at page 188 and 187 of the judgment, particularly at 188:
In the light of the relevant provisions of the Act, as I have explained them, s 177 is not inconsistent with s 75 of the Constitution -
So the majority was for the proposition that the Hickman principle had no application and, hence, for the proposition that even bad faith is insufficient to enable notice of assessment to be set aside. That is consistent with the case of Bloemen [1981] HCA 27; (1981) 147 CLR 360 to which your Honours referred in Hickman in which the same conclusion was arrived at by all members of the Court.
My learned friend also did not mention what your Honour Justice McHugh had said in the Richard Walter Case at page 240, which was as follows:
In my opinion the short answer to the submission for the taxpayer is that s 177(1) is not an attempt to oust the jurisdiction of the Federal Court or any court invested with federal jurisdiction. Although s 177 uses the term "conclusive evidence", its purpose is to enact substantive rules of law which give effect to two policies which are manifest in the terms of the Act and associated legislation. The first policy is that the provisions of the Act involved in the "due making" of an assessment are directory provisions which are not legally enforceable. That policy is manifested by the terms of s 175 of the Act. The second policy is that assessments of tax are not challengeable in ordinary legal proceedings. That policy is now manifested in the terms of Pt IVC of the Taxation Administration Act -
and, similarly, your Honour, we say here that there are no legally enforceable constraints on the Minister in the issuing of a conclusive certificate: Project Blue Sky, Abebe, ABC v Redmore, Richard Walter.
It is not a new submission; it is not a surprising submission. In fact, it is the very thing one would infer in reading the simple terms of the Act unless one were to read a lot of jurisprudence and read in further rules. We say one ought not to do that in this case and it really is as simple as that. Any desirable processes to be followed by the Minister are merely directory and are not legally binding obligations. It would be very odd really because it would mean that in issuing a certificate the Minister really subjected the documents to far greater prejudice and liability to be examined and disclosed than if he had not issued the certificate in the first place.
KIRBY J: The answer to that would be, presumably, that that just follows. If you are subject to judicial review or constitutional review, then you are subjected when you do something to scrutiny against the criteria of the law.
MR CAVANOUGH: But it is the documents that would be subjected to scrutiny here, your Honour.
KIRBY J: That is the point between you, you see, that the respondent says it is the action of the certifier.
MR CAVANOUGH: He says that, but it only takes a moment's - - -
KIRBY J: Well, we have been through it all day so we know the difference between the arguments.
MR CAVANOUGH: Yes. I am not sure that I have said it would be quite impossible to entertain this case or really any other comparable case without close examination of documents. The allegations could never be tested except by reference to the documents themselves.
GUMMOW J: I wanted to ask you about that. The actual documents we are talking about are documents 13, 14 and 19, are they not?
MR CAVANOUGH: In respect of the 33A certificate?
GUMMOW J: Yes.
MR CAVANOUGH: And other documents, including those, but others as well in relation to 36.
GUMMOW J: Where do we find the 36 identification. I see at page 20 it refers to documents 13, 14 and 19.
MR CAVANOUGH: Yes. The certificates themselves, your Honour, appear at pages 3 and following of the appeal book. The first one is at page 3.
GUMMOW J: Yes, I know.
MR CAVANOUGH: And the second at page 8. What follows is a statement of reasons for the decision.
GUMMOW J: Yes, thank you.
MR CAVANOUGH: There is one other matter that your Honour Justice Gummow mentioned, that here the decision was made by a delegate. Whilst it is true that a delegate would not be called on personally ultimately to go to Parliament, may I just explain that the force of our submission in respect of the ministerial personal accountability comes from the fact that it is at the later stage, after the Administrative Appeals Tribunal has held that there are no reasonable grounds, and yet the Minister, personally - this cannot be delegated - refuses to revoke the certificate, that the Minister then personally must go to the Parliament and explain.
So it is not as though he would be able to blame his delegate. It would be his own decision not to revoke that he would be called upon to explain in the Parliament. It must be the Minister. It is deemed to be his decision by - 33A(7) in the first place says that even the - - -
KIRBY J: What section?
MR CAVANOUGH: I am sorry, 37A(7) of the FOI Act deems the original decision of the delegate, that is to say, the head of the department, to be the decision of the responsible Minister, and 36(9) in the other corresponding set of provisions, and then when one comes to the requirement to attend in Parliament, that is dealt with in section 58A and subsection (9) is the relevant provision. It says:
For the purposes of this section, "appropriate Minister" means:
(a) in relation to a document in respect of which there is a certificate in force under section 33, 33A or 36 - the Minister who gave, or whose delegate gave, that certificate;
But it is the Minister personally who will be involved at the intermediate stage, that is to say the most immediately past stage, of having to consider, after the AAT's decision, of whether or not to revoke the certificate. If the Court pleases.
GLEESON CJ: Thank you, Mr Cavanough. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 3.25 PM THE MATTER WAS CONCLUDED
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