12 January 2007
Key Points:
Assessment of the public interest requires a broader consideration by the Tribunal (but not a balancing) of the competing arguments for and against disclosure in order to determine whether the grounds claimed in a certificate are reasonable.
The freedom of information ("FOI") regime is premised on the idea that citizens should have access to government documents, but that right is not unfettered. Underlying the FOI regime is a tension between accountability and the need in some cases for confidentiality. That tension was wrestled with by the High Court in its first decision on conclusive certificates, McKinnon v Secretary, Department of Treasury [2006] HCA 45.
What is a conclusive certificate?
Under the Freedom of Information Act 1982 (Cth) ("FOI Act") a Minister can sign a conclusive certificate in respect of certain documents if he or she is satisfied the disclosure is contrary to the public interest (similar but not identical provisions exist in State and Territory FOI Acts). A document for which a certificate has been issued is not liable for disclosure under the FOI regime.
The granting of a certificate can be reviewed: under section 58(5) of the FOI Act, the Administrative Appeals Tribunal can "determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest."
If the Tribunal finds that the claim which is the basis of the issue of the conclusive certificate is not based on reasonable grounds, the FOI Act requires the Minister who issued the certificate to decide whether to revoke it. If the Minister decides not to revoke the certificate, the Minister must give notice of the decision to the applicant and must cause a copy of the notice to be laid before each House of Parliament. That notice must include a statement of findings on any material question of fact, the material on which those findings were based and the reasons for the decision. The Minister must also read the notice to the House in which he or she sits.
The issue
Mr McKinnon argued that the central question before the Court was whether section 58(5) of the Act "require[d] the Tribunal to consider competing facets of the public interest". The Secretary of the Department of Treasury identified the central issue in substantially similar terms: "whether section 58(5) required the Tribunal to take into account and balance public interest considerations favouring disclosure of a document when determining whether reasonable grounds exist for a claim that disclosure would be contrary to the public interest".
Full Federal Court decision
The Federal Court had decided in August 2005 in a 2-1 majority (Justices Tamberlin and Jacobson, Justice Conti dissenting) that the Tribunal was correct in finding that in considering whether there existed a reasonable ground for the claim that the disclosure of the documents would be contrary to the public interest as required by section 58(5) of the FOI Act, it only needed to satisfy itself that the grounds relied on by the Minister for the issue of the conclusive certificate were reasonable and that in reaching its view, it did not need to consider the arguments that were put forward to establish why disclosure of documents were in the public interest
How should the Tribunal determine "reasonable grounds"?
Three separate judgments were delivered: Chief Justice Gleeson and Justice Kirby’s joint dissenting judgment, and, dismissing the appeal, Justice Hayne’s judgment, and Justices Callinan and Heydon’s joint judgment. The High Court held that the Tribunal’s task under the Act is not to substitute its own decision, nor to assess for itself the public interest. It is not required to perform a balancing exercise of different considerations in determining the public interest.
Looking at all the circumstances
Chief Justice Gleeson and Justice Kirby would have allowed the appeal, rejecting the view of the majority of the Full Federal Court that so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an applicant for review under section 58(5) must fail.
They stated that the question whether there are reasonable grounds for a claim, or argument or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument or state of mind having regard to all relevant considerations.
They noted:
"By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest".
Justices Callinan and Heydon, dismissing the appeal, made four key points about the operation of section 58(5).
First, they said that the correct starting-point is the examination of the documents in question:
"The real issue will almost invariably then be whether the document in question, having regard to its date, its author, the position of its author, and its contents, is one in respect of which the Minister can hold the requisite opinion."
Secondly, the words of the Act are perfectly clear and should not be paraphrased into tests.
Thirdly, the Tribunal is not being asked to balance factors or to undertake a full merits review.
Fourthly and most critically they found that "if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review."
Justice Hayne accepted that most questions about what is in "the public interest" will require consideration of a number of competing arguments about, or features or "facets" of the public interest. He stated the Tribunal must look at:
"whether the conclusion expressed in the certificate (that disclosure of particular documents would be contrary to the public interest) can be supported by logical arguments which, taken together, are reasonably open to be adopted and which, if adopted, would support the conclusion expressed in the certificate" [emphasis in original].
With regard to whether the Tribunal is required to consider competing facets of the public interest in reaching the satisfaction posed by section 58(5), Justice Hayne appears to agree with Chief Justice Gleeson and Justice Kirby.
However, Justice Hayne joined Justices Callinan and Heydon in dismissing the appeal because he was not satisfied that the Tribunal had in fact applied the test that the majority of the Full Federal Court considered was correct (and which was also considered to be correct by Justices Callinan and Heydon).
Implications
All five judges recognised the complex policy issues involved when the Tribunal is considering section 58(5). On the one hand, the FOI Act establishes an access regime; on the other, there are certain documents that because of their sensitivity ought not to be disclosed. This tension is recognised in the conclusive certificates regime in the FOI Act, which allows a decision-maker to determine when disclosure is in the public interest, and limits the nature of the Tribunal’s review.
Although the Court split 3:2 in this case in relation to the final orders to be made, it appears that a majority of three judges (Chief Justice Gleeson and Justice Kirby, Justice Hayne) found that, on review of the issue of a conclusive certificate, section 58(5) requires the Tribunal to consider all factors relevant to the public interest, that is for and against disclosure of the relevant documents, when determining the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.
For further information, please contact John Carroll.
