Mckinnon v Secretary, Department of Treasury

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Kirby J,Hayne J,Callinan,Heydon JJ
• Judgment Date: 06 September 2006
• Neutral Citation: 2006-0906 HCA A,[2006] HCA 45
• Court: High Court
• Docket Number: S52/2006
• Date: 06 September 2006

[2006] HCA 45

HIGH COURT OF AUSTRALIA

Gleeson CJ, Kirby, Hayne, Callinan AND Heydon JJ

S52/2006

Michael McKinnon

Appellant

and

Secretary, Department of Treasury

Respondent

Representation

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

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

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

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

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

McKinnon v Secretary, Department of Treasury

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

Words and phrases — ‘exempt document’, ‘internal working documents’, ‘conclusive certificate’, ‘public interest’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ AND Kirby J. The characteristic function of the Administrative Appeals Tribunal, established by the Administrative Appeals Tribunal Act 1975 (Cth), is to undertake what is sometimes called ‘merits review’ of administrative decisions, determining whether the decision under review was, on the material before the Tribunal, the correct or (in the case of discretionary decisions) the preferable one 1. When the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) was enacted, the Tribunal, by s 58(1), was given that function in relation to what might be described as ordinary or routine decisions concerning requests for access to a document of an agency or an official document of a Minister. It is not, however, the function with which this appeal is concerned. We are concerned with a different function, identified by s 58(5), relating to a limited class of document, and a particular kind of decision.

2 The central issue in the appeal turns upon an accurate understanding of the nature of the special function identified by s 58(5). The appellant contends that Downes J 2, the President of the Tribunal, who followed a line of authority in the Tribunal and the Federal Court, and whose decision was upheld by a majority of the Full Court of the Federal Court 3 (Tamberlin and Jacobson JJ, Conti J dissenting), erred in law in his understanding of the nature of the power given to the Tribunal by s 58(5).

3 The facts, and the relevant statutory provisions, are set out in the reasons of Hayne J. For our purposes, and at the risk of some over-simplification, it is sufficient to summarise the legislative context as follows.

4 The declared object of the FOI Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth Government by creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests (s 3). We emphasise the repeated use of the word ‘right’. Included in the exemptions and exceptions which qualify that right are those created by s 36 of the FOI Act, which deals with what are described as internal working documents. Such a document is exempt from disclosure if two conditions are satisfied. The first condition turns upon an objective description of the document itself. It must be a document the disclosure of which would disclose matter in the nature of, or relating to, opinion,

advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister. If a document answers that description then a second condition (which is that of present relevance) applies. The second condition for exemption is that disclosure of the document would be contrary to the public interest.

5 A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).

6 The legislative scheme with respect to internal working documents (s 36(3)) is that, where a document is one as to which the first condition mentioned above is fulfilled (which turns upon the nature and contents of the document and, perhaps, other circumstances), then a Minister may sign a certificate which, so long as it remains in force, establishes conclusively that the second condition for exemption is fulfilled. The Minister's power so to certify is conditioned as follows:

‘(3) Where a Minister is satisfied, in relation to a document [which fulfils the first condition], that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) …’

7 Such a decision of a Minister is subject to review by the Tribunal. However, the power of review conferred upon the Tribunal by s 58(5) does not involve the exercise of the characteristic function of full merits review described at the commencement of these reasons. It is not the function of the Tribunal to decide whether the Minister was correct to be satisfied that the disclosure of a document would be contrary to the public interest. The Tribunal does not ask itself whether, on the evidence before it, the Tribunal is satisfied that the disclosure of the document would be contrary to the public interest. The question that, by s 58(5), is raised for the Tribunal's decision is a related, but different, question. It is ‘whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.’

8 Thus, in relation to internal working documents of the kind described in s 36(1)(a), it is for the Minister to decide the question of public interest raised by s 36(1)(b) and s 36(3), and it is the Minister's state of satisfaction on that issue that determines whether the document is exempt from disclosure. There is no provision for full merits review of that decision by the Tribunal. The Tribunal's review function, in such a case, is limited to determining whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

9 Although it is the FOI Act that must be applied, and analogies may be imperfect and risky, it is worth pointing out that such a limited form of review of primary decision-making is not unfamiliar. For example (although the analogy is far from exact), when, in an ordinary tort case, an appellate court reviews a finding of negligence by a court of first instance (a finding that may turn upon questions of fact and a normative judgment as to reasonableness), the kind of review that is undertaken will depend upon whether the decision at first instance was that of a judge alone, or of a jury. In the former case, depending on the statute creating the right of appeal, the appeal may be by way of rehearing, and the duty of the appellate court may be to decide whether it regards the decision at first instance as wrong. In the latter case, the appellate court does not decide whether it agrees with the jury's conclusion; it decides whether it was reasonably open to the jury to reach that conclusion 4. That is a familiar form of review which falls short of full merits review. Again, as Downes J pointed out in his reasons, statutes which confer a power conditioned upon the existence of reasonable grounds for a state of mind such as suspicion, or belief, are common. Powers of search and seizure, or arrest, are often conditioned in that way. Downes J referred to the decision of this Court in George v Rockett5 where it was said:

‘When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.’

10 This is an objective test. George v Rockett was concerned with Queensland legislation empowering the issue of a search warrant if there were reasonable grounds for suspecting that there was incriminating evidence in a house. The statutory formula, however, is widely used. The point of the objectivity of such a test, when it is necessary to consider whether a primary

decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds 6.

11 To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as a decision whether a person was (or was not) negligent, or whether the known facts are sufficient to induce in a reasonable person a suspicion or belief that someone is guilty of a crime, or whether there are reasonable grounds for a claim...