JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CORAM : PARKER J

HEARD : 4 SEPTEMBER 1996

DELIVERED : 13 NOVEMBER 1996

FILE NO/S : APPEAL SJA 1059 of 1996

BETWEEN : MINISTER FOR PLANNING
Appellant (Respondent)

AND

MICHAEL TAWEEL
GEORGETTE TAWEEL
Respondents (Complainants)

Catchwords:

Freedom of Information - Appeal from decision of Information Commissioner
granting access to documents in the possession and under the control of a
Minister - "relates to the affairs of another agency" - Freedom of Information
Act 1992 Schedule 2 Glossary cl 4(2)(b)


(Page 2)
Representation:

Counsel:
Appellant
(Respondent) : Mr W S Martin QC & Ms J C Pritchard
Respondent
(Complainants) : In person

Solicitors:
Appellant
(Respondent) : State Crown Solicitor
Respondent
(Complainants): In person

Case(s) referred to in judgment(s):

Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps
[1983] 2 VR 305
Booth v Dillon (No 3) [1977] VR 143
Hatfield v Health Insurance Commission (1987) 77 ALR 103
O'Grady v The Northern Queensland Company Limited (1989-1990) 169 CLR 356
Quality Bakers Australia Limited v Bennett (1992) 47 IR (Qd) 448

Case(s) also cited:

Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) (1977) 14
ALR 457
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Kobelke v Minister for Planning, unreported; WA Information Commissioner;
D594; 27 April 1994
Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54
Re Wiseman and Department of Transport (1985) 4 AAR 83

Library Number : 960654


(Page 3)
PARKER J:

This is an appeal from a decision of the Acting Information Commissioner

made pursuant to the Freedom of Information Act 1992 (the "FOI Act"). The

respondents sought access under the FOI Act to documents of the appellant in

his capacity as Minister for Planning. Access was refused. The respondents

by complaint sought a review by the Acting Information Commissioner who

decided that the respondents should have access to the documents. There were

other incidental and consequential orders but they are not the point of this

appeal.

The respondents are owners of land within the City of Canning ("the

City") and had sought from the City a planning approval to develop a child

care centre on their land. This was refused by the City. The respondents

instituted an appeal from that refusal pursuant to Part V of the Town Planning

and Development Act 1928 (the "TP & D Act"). Pursuant to s39 of the TP & D

Act an appeal may be made to the Minister or to the Town Planning Appeal

Tribunal. An appeal to the Tribunal is a public process involving evidence, a

public hearing and a decision with written reasons provided by the Tribunal;

there is a right of further appeal to this Court from the decision of the

Tribunal. By complete contrast, the appeal to the Minister is substantially

informal. The procedure normally followed is for an appeal to be considered

by (a member of) the Town Planning Appeal Committee and the Minister

determines the appeal after receiving a report and recommendation from the

Committee. There is no procedure for evidence or for a public hearing or for

submissions. The Committee may gather information from whatever source it

considers necessary or appropriate and the Minister in reaching a decision is

informed by, but not bound to heed or apply, the report and recommendation of

the Committee. It is not usual for the Minister to give reasons for decision

and there is no right of appeal from the Minister.


(Page 4)
In this case the respondents, on the advice of their planning

consultants, instituted an appeal to the appellant as the Minister. This was

done on 7 June 1995. By letter dated 16 September 1995 the appellant advised

the respondents' consultants that the appeal had been dismissed.

On 8 October 1995 the respondents applied to the appellant for access

under the FOI Act to all correspondence, reports and materials from all

parties concerned in the appeal. What was sought was, in effect, the

Minister's appeal file. The appellant refused the application. The

respondents then sought by complaint a review of that decision of the

appellant. The appeal to this Court is from the decision of the Acting

Information Commissioner which allowed the respondents access to the

appellant's appeal file except for some identified exempt documents.

By s10(1) of the FOI Act a person has a right to be given access to the

documents of an agency. By cl 1 of the Glossary to the FOI Act "agency" is

defined to include a Minister. Clause 4(1) of the Glossary further provides:

"4. (1) Subject to subclause (2), a reference to a document of an
agency is a reference to a document in the possession or under the
control of the agency including a document to which the agency is
entitled to access and a document that is in the possession or under
the control of an officer of the agency in his or her capacity as
such an officer.

(2) Where the agency is a Minister a reference to a document of
an agency is a reference to a document that -

(a) is in the possession or under the control of the
Minister in the Minister's official capacity; and

(b) relates to the affairs of another agency (not being
another Minister),

and includes a document to which the Minister is entitled to access
and a document in the possession or under the control of a member of
the staff of the Minister as such a member, but does


(Page 5)
not include a document of an agency for which the Minister is
responsible.

(3) A document in the possession or under the control of an
agency on behalf of or as an agent for -

(a) the Commonwealth, another State or a Territory; or

(b) an agency or instrumentality of the Commonwealth,
another State or a Territory,

is not a document of the agency."

It is clear in this case that the appellant's appeal file comprised

documents in the possession and under the control of the appellant as a

Minister, and in the Minister's official capacity, within the meaning of

cl 4(2)(a) of the Glossary. The issue that remains is, therefore, whether

each document in the appellant's appeal file (apart from exempt documents) is

a document that "relates to the affairs of another agency" within the meaning

of cl 4(2)(b).

In this case it is contended that the City was the other agency. The

City is an agency for the purposes of the FOI Act; see the definitions of

"agency" and "public body or office" in the Glossary. Hence the remaining

issue may be formulated as whether documents of the appellant in his capacity

as Minister for Planning, being documents concerning an appeal to the

appellant under the TP & D Act and concerning the consideration of that appeal

for the appellant by the Town Planning Appeal Committee and the decision of

the appellant in that appeal, together with incidental correspondence, are

documents which relate to the affairs of the City within the meaning of

cl 4(2)(b) of the FOI Act.

In her careful and extensive written reasons for decision the Acting

Information Commissioner held that the documents in the appellant's appeal

file were documents which related to the affairs of the City. In construing

the


(Page 6)
phrase "relates to the affairs of" the Acting Information Commissioner

reasoned that the documents must be "documents that can be properly

characterised, in a general sense, as documents relating to the business (in

the broad sense of that word) of another agency in the performance of its

functions." The Acting Information Commissioner further reasoned that the

decision of the appellant in the exercise of his appellate function "has an

effect on the local authority as the decision being reviewed by the Minister

is the decision initially made by the local authority...." and "When the

decision of the Minister is substituted for that of the Local Authority, the

local authority is then required to put the decision of the Minister into

effect in the performance of its planning function." Accordingly, the Acting

Information Commissioner found herself "satisfied that the planning process

can properly be said to be an 'affair' of the City" and the documents of the

respondent dealing with "an appeal against a planning decision of the City can

be said to be documents which 'relate to the affairs of ' that local

authority." Thus it was held that (exempt documents aside) the appellant's

appeal file comprised documents within the meaning of cl 4(2)(b) of the

Glossary.

The appellant's appeal raises as a question of law whether the Acting

Information Commissioner misconstrued cl 4(2)(b) of the Glossary in reaching

that decision.

Despite some contrary appearances, when cl 4 is analysed it is not the

general scheme of the FOI Act that documents in the possession or control of a

Minister of the Crown are subject to the right of access given by s10.

Subject to one exception, cl 4(2) of the Glossary, no documents of a Minister

or in the possession or control of a Minister (in whatever capacity) or the

Minister's staff, are subject to the right of access. The exception is where

a document is held by the Minister in his or her official capacity and relates

to the affairs of another agency. Even that exception is further and

significantly restricted


(Page 7)
because, from it, there are excluded documents of all agencies for which the

Minister is responsible and documents relating to the affairs of any other

Minister. Further, by subcl 4(3) documents held for other governments in

Australia or their agencies or instrumentalities are excluded. Insofar as

documents held by a Minister which relate to the affairs of another agency

must be held in the Minister's official capacity before being subject to the

access provisions of the FOI Act, the phrase "official capacity" clearly

excludes the personal capacity of the Minister and his or her capacity as a

member of the Parliament or of a Parliamentary Committee (see Schedule 2 to

the FOI Act). Without wishing to rewrite the relevant provisions, when they

are analysed it may fairly be observed that the policy revealed by the

provisions of the FOI Act with respect to documents in the possession or

control of a Minister is clearly one which excludes such documents from the

right of access provided in the FOI Act, save for the one exceptional case

(itself subject to exclusions) of a document held in the Minister's official

capacity which relates to the affairs of another agency, not being another

Minister or an agency for which the Minister is responsible.

Thus, the policy and context of the FOI Act in its application to

documents in the possession or under the control of a Minister does not

provide any support for the view that the legislature intended an expansive or

generous provision for access. In turn this offers no support whatever for

any view that the legislature intended a wide understanding of "relates to" or

"affairs" in cl 4(2)(b). In this respect the view I have formed appears to be

in marked distinction from that applied by the Acting Information Commissioner

who was led into error in this respect by general statements of policy, eg in

the long title and the Second Reading Speech. The specific terms of the Act

applicable to documents in the possession or under the control of Ministers

treat these documents quite differently from the documents of other agencies


(Page 8)
and deny the existence of a legislative policy of an expansive or generous

provision for access.

One intriguing aspect of cl 4(2) of the Glossary is the exclusion of

documents of an agency for which the Minister is responsible, but the

inclusion of documents which relate to the affairs of another agency ie an

agency for which the Minister is not responsible that agency not being a

Minister, from the concept of a "document of an agency". The reason for this

has not been satisfactorily explained.

While counsel could not offer a satisfactory policy reason for this

strange provision, it was somewhat tentatively suggests that it may have been

thought more convenient for access applications for documents of an agency in

the possession of the Minister responsible for that agency to be dealt with by

the agency rather than the Minister. In other words, it was only where a

document of an agency had reached a Minister who was not responsible for the

agency that there was a need to bother a Minister with the access procedures

of the FOI Act. There appears to be some difficulty with that reasoning. As

a matter of ordinary government administration, while a Minister may be said

to have control of a document of the Minister which is in the possession of a

department or other agency for which the Minister is responsible, the reverse

is not usually the case. A document of a department or other agency which is

in the possession of the Minister responsible for the agency is no longer in

the possession or under the control of the department or other agency. The

department or other agency may ask the Minister to return the document but if

that is not done the Minister cannot be compelled to return the document,

whereas the Minister can compel a department or other agency under the

Minister's control to deliver up documents to the Minister. (The position

will be different for a few types of documents for which specific statutory

provision is made for their possession or control). Further, this difficulty

may be


(Page 9)
somewhat aggravated by the provisions of cl 4 which appears to distinguish

between the possession or control of documents by a Minister and the

possession or control of documents by an agency under the control of the

Minister.

Thus it is possible that the operation of cl 4 may prove to be that a

document of an agency will be beyond the reach of the access provisions of the

FOI Act while it remains in the possession of the Minister responsible for the

agency.

The absence of a clear policy for the terms of cl 4(2)(b), when it is in

effect the only circumstance in which ministerial documents are subject to the

access provisions of the FOI Act, adds considerably to the difficulties of

this case. Given the provisions which otherwise reflect a general policy of

no access, why it has been provided that only documents which have been

allowed out of the possession or control of an agency and into the possession

or control of a Minister who is not responsible for the agency, should be the

only type of document in the possession or control of any Minister to be

available for access remains to be discerned.

Whatever be the elusive policy behind cl 4(2)(b), it is necessary to

attempt to understand its effect and determine the scope of its operation.

It is necessarily contemplated by cl 4(2)(b) that the question it poses

may be answered in respect of any document. This indicates that it

contemplates that a document may be categorised. Take, for example, a report

to the Treasurer as to the observance of statutory audit obligations by

agencies in a context where statutory audit obligations are within the

ministerial responsibility of the Treasurer, yet some of the agencies

considered may be subject to the ministerial responsibility of other

Ministers. Is the document to be categorised according to its primary purpose

and subject matter, its substance - the observance of statutory audit

obligations - or is it to be


(Page 10)
categorised as relating to the affairs of each one of the separate agencies

which happen to be included in the report? Or should it be categorised as

both? In that last event, according to its primary purpose and subject matter

it would not be subject to access under the FOI Act, but by virtue of its

incidental or secondary subject matter it would be subject to access for no

reason other than that one or more of the agencies included in the report

happened to be subject to the responsibility of another Minister. I have not

been able to discern any satisfactory underlying legislative policy for such

an arbitrary, if not entirely accidental, result. To exaggerate that

difficulty and the absence of a satisfactory underlying policy, the example

can be modified so that the report dealt only with agencies which were

themselves within the ministerial responsibility of the Treasurer except for

one which was included by oversight, or even by design to highlight a contrast

for the Minister. I am unable to discern any rationale why the inclusion of

the one agency outside the area of the Treasurer's responsibility should be

seen by the legislature to justify the document being subject to the access

provisions of the FOI Act, whereas according to its primary purpose and

subject it relates to the affairs of the Treasurer and touches only in this

one respect on an agency outside the Treasurer's ministerial responsibility.

From what I can discern of the clause, it seems most likely that it was

assumed that a process of categorisation which identified the essential nature

of the document was to be undertaken, according to which the issue posed by

cl 4(2)(b) would be answered. A variety of considerations might need to be

considered to determine the essential nature of the document such as its

primary purpose, its author, its intended addressee, its subject matter and,

where more than one subject is covered, whether one or more was the primary

subject and others merely incidental. Where it is a document required or

envisaged by a statute, the statutory scheme might well be relevant to, or


(Page 11)
determinative of, the question. In such a process some documents might well

be properly seen as having more than one essential nature in which event it

would seem to be necessary to apply cl 4(2)(b) to each of the essential

natures identified. While that would lead to some arbitrary results, the

incidence of these would be far more limited than if a document were to be

categorised for the purposes of cl 4(2)(b) according to every subject or

agency to which it might have some connection or relevance.

The words "relates to", somewhat notoriously, depend heavily on their

subject, and their immediate context and object to determine their scope and

reach. Like many phrases to similar effect, "relates to" is capable of

meanings which range from a narrow, particular, direct and immediate

relationship, to one which can be extremely broad and indiscriminate in reach

and scope such as would include any adjectival or indirect relationship to any

subject having any relevance to an agency. As already indicated the specific

provisions of the FOI Act relevant to documents in the possession or control

of Ministers, do not indicate a policy of generous access, to say the least,

which tells against a view that any wide meaning and operation is intended in

cl 4(2)(b) of the Glossary.

The words of Davies J in Hatfield v Health Insurance Commission (1987)

77 ALR 103 at 106-107 are informative in this context:

"Expressions such as 'relating to', 'in relation to', 'in connection
with' and ' in respect of ' are commonly found in legislation but
invariably raise problems of statutory interpretation. They are
terms which fluctuate in operation from statute to statute. As was
said by Blackburn, Gallop and Neaves JJ in Butler v Johnston (1984)
55 ALR 265 at 268: 'It is clear that the words "in respect of" can
convey a meaning of wide import, but their exact width will depend
upon the context in which they appear. Reference to individual
cases on different statutes is of little assistance in determining
their particular meaning. The court has to construe the meaning of
the words with reference to the purposes or object underlying the
legislation in which they appear....'.


(Page 12)
The terms may have a very wide operation but they do not usually
carry the widest possible ambit for they are subject to the context
in which they are used, to the words with which they are associated
and to the object or purpose of the statutory provisions in which
they appear. In Ausfield Pty Ltd v Leyland Motor Corp of Australia
Ltd (No 2) (1977) 14 ALR 457 it was said at 460 by Bowen CJ with
whom Northrop J agreed that the words 'in relation to' in s 51(2)(a)
of the Trade Practices Act 1974 require a direct relationship and by
Deane J at 462 that the words require a relationship which is direct
and immediate."

The Hatfield case was a decision under the Administrative Decisions (Judicial

Review) Act of the Commonwealth and involved a decision to refuse payments of

benefits under the Health Insurance Act pending the completion of

investigations into past claims which had been referred to the DPP. It was

held, in ordering that a statement of reasons be given for the decision, that

the exempting phrases "decisions relating to the administration of criminal

justice" and "decisions in connection with the investigation or prosecution of

persons" should be read as referring to decisions that were part of the

administration of justice and part of the investigation of persons for

offences and did not encompass decisions which were not made in the course of

the administration of justice or the investigation of persons for offences but

were simply connected therewith in an indirect manner.

In O'Grady v The Northern Queensland Company Limited (1989-1990) 169 CLR

356 the High Court had to consider provision of the Mining Act 1968 (Q) which

conferred on a Warden's Court exclusive jurisdiction in all actions "arising

in relation to mining or to any mining tenement". At 374 Toohey and

Gaudron JJ, said:

"Although 'in relation to' is an expression of broad import, in
context with 'arising' it presupposes a direct connection between a
presently existing action, suit or proceeding and mining or a mining
tenement, not merely an incidental connection."

At 367 Dawson J, while agreeing with Toohey and Gaudron JJ, went on to say:


(Page 13)
"The words 'in relation to', read out of context, are wide enough to
cover every conceivable connexion. But those words should not be
read out of context, which in this case is provided by the Mining
Act 1968 (Q). What is required is a relevant relationship, having
regard to the scope of the Act. Where jurisdiction is dependent
upon a relation with some matter or thing, something more than a
coincidental or mere connexion - something in the nature of a
relevant relationship - is necessary: see Reg v Ross-James; Ex
parte Green" (1984) 156 CLR 185 at pp 196-197, 210.

In Ansett Transport Industries (Operations) Pty Ltd v Comptroller of

Stamps [1983] 2 VR 305 McGarvie J had to consider the phrase "A mortgage

relating to property in Victoria" in the context of the Stamps Act 1958 (Vic).

At 307-308 he said:

"I start from the proposition that the expression 'relating to' is
wide enough to cover any of the matters and things relied on here by
the Comptroller. It can be demonstrated that in one way or another
most things are related to most other things. See D Hume, A
Treatise of Human Nature, Book 1, 1739 Part 1, subsections 4 and 5.
That however is only the first step in the process of construction:
-

'To construe the words of a statute does not mean to find the
dictionary meaning of the words out of context. To construe
the words of a statute means to find the legal meaning or
effect of the words in the context in which they are found and
in the context of the law.': E A Driedger, The Meaning and
Effect of the Bill of Rights: A Draughtsman's Viewpoint (1977)
9 Ottawa Law Review 303, at page 308.

In my opinion Parliament did not intend the words 'relating to' in
section 17(4) to have their widest possible meaning and it is
necessary to ascertain what limited meaning they have in their
context: cf State Government Insurance Office v Rees (1979), 144
CLR 549, at pp. 553-4 and 560-1.

...

There is a sense in which the word 'relates', commonly used, for
example when a witness is asked to what a document, a


(Page 14)
conversation or a statement related or relates. In answer to the
question the witness would be expected to say what its substance,
its subject was - what it was about. The witness would not on that
broad question be expected to deal with what, philosophically, the
document, conversation or statement could be said to relate. Nor
would the witness be expected to deal with the incidental as
distinct from the substantial effect of the document, conversation
or statement. If, for example, a lease in a common form obliged the
tenant to pay the rates, the question to a witness as to what the
lease related would not, without further probing, be expected to
evoke the answer that it related to the payment of rates by the
tenant, although that answer would, in a more detailed sense,
strictly be a correct one."

To these cases many others could be added including Booth v Dillon (No 3)

[1977] VR 143 at 144 and Quality Bakers Australia Limited v Bennett (1992) 47

IR (Qd) 448 per Moynihan J at 453.

These decisions are referred to, not because they provide a ready made

answer to the present question of statutory construction but because they

illustrate the difficulty in interpreting words of this type in a statute and

provide some guidance as to the method which perforce must be followed in an

attempt to understand what was intended by the legislature.

In the context of cl 4(2)(b) the phrase "relates to" is to be read in

conjunction with the "affairs" of an agency (the City). Affairs is itself a

concept which can be understood widely or narrowly. It refers to the concerns

or business of the City and little thought is necessary to reveal that it is

possible, if encouraged by an appropriate context, to understand that concept

expansively so that it is capable of embracing any matter in which the City is

in any way involved or concerned. Something of that nature seems to have been

the understanding adopted and applied by the Acting Information Commissioner

as indicated by her words "the business (in the broad sense of that word)" of

the City. In my respectful view, however, there is nothing in the context of

cl 4(2) of the Glossary or the other relevant provisions of the FOI


(Page 15)
Act to encourage such a broad and expansive understanding of the concept of

the affairs of an agency. Once again the Acting Information Commissioner

appears to have been persuaded to the erroneous view that the FOI Act is

intended to open up all public records to access and has been led as a

consequence to read "affairs" broadly.

As already indicated, the general policy of the FOI Act relating to

documents in the possession or under the control of a Minister does not enable

the view to be taken that, in construing cl 4(2)(b) and in particular "relate

to" and "affairs", a particularly wide and embracing meaning was intended to

facilitate access where possible. On the other hand, while the general policy

may be seen to be against access, cl 4(2)(b) may properly be viewed as an

exception to that policy. Given the way it is expressed, there is no

particular justification in its context for reading the exception in a

particularly narrow or limited sense. The best that can be done, it seems to

me, is to apply an everyday, common sense approach to the ordinary

understanding of the words used, avoiding any strained limitation or expansion

of the ordinary meaning.

Under the TP & D Act an appeal to the Minister is a distinct statutory

proceeding from the consideration and decision of the City upon which that

appeal was founded. By s39(2) of that Act the decision of the Minister on

appeal has effect according to its own tenor. There is, nevertheless, a clear

connection between the decision of the Minister and the City in that the

decision of the Minister is made under the Town Planning Scheme of the City

and deals with and affects the development of land within the City. Further,

decision of the Minister may establish a policy or a precedent for the

operation of the City's Scheme.

Turning to this particular case, there is a sense in which the essential

nature of the documents in question may be described as being, in one way or

another, for the purposes of enabling the appellant to consider and reach a


(Page 16)
decision in an appeal which, by the TP & D Act, he was responsible for

determining. Any information or submissions gathered directly by the

appellant by the statutory Town Planning Advisory Committee were for that

purpose, as was any report of the Committee to the appellant. On an extremely

strict and narrow understanding, given the statutory scheme of the TP & D Act,

the process of appeal might be distinguished from the administration by the

City of its Town Planning Scheme. On such a basis, the process by which the

Minister considered the appeal and reached his decision could arguably be seen

as not an affair of the City because, directly or immediately viewed, it

relates to the affairs of the Minister.

This was, in essence, the view urged on me for the appellant. But it

appears to depend on two factors; a very strict and narrow reading of

cl 4(2)(b) and a process of categorisation of the documents in question which

requires in this case a choice to be made between the affairs of Minister on

the one hand and the affairs of the City on the other. For the reasons

already indicated there is no adequate justification for taking a particularly

strict or narrow view of the words and effect of cl 4(2)(b) and, whereas, in

some contexts and with some documents it will be appropriate to categorise

them as either one thing or another, in this present context it seems to me

that these appeal documents ordinarily and sensibly viewed can be seen to

relate both to the affairs of the Minister, who must decide the appeal, and to

the affairs of the City to whose planning scheme the appeal is applicable and

under which it falls to be determined.

While it is never easy to be sure of the intention of the Parliament

when words of this nature are used, especially where the policy objectives

cannot be discerned or are contradictory or obscure, nevertheless, I am

persuaded, on balance, to prefer the view that (exempt documents aside) the

documents in the appellant's ministerial appeal file are documents which

relate to the affairs of


(Page 17)
the City in the sense intended by the Parliament in enacting cl 4(2)(b) of the

Glossary to the FOI Act.

While the conclusion I have reached is the same as the decision of the

Acting Information Commissioner, I am unable to agree in some material

respects with aspects of her reasoning concerning the FOI Act. I have already

adverted to the divergence between the apparent general objects of the FOI Act

and the precise provisions dealing with ministerial documents. The

Commissioner also drew on equivalent legislation of the Commonwealth and other

States and Territories. Given the existence of differences in the legislative

schemes this approach is not really instructive to the proper interpretation

of the FOI Act in this State. The Acting Information Commissioner was also

persuaded to the view that the FOI Act revealed a policy that documents which

had a connection with the activities of government should be seen as subject

to the access provisions. This purposive understanding is hardly borne out

in the case of ministerial documents by the provisions of cl 4 of the

Glossary, especially the exemption of the documents of other Ministers and of

agencies for which the Minister is responsible. Indeed the opposite is

indicated. The views formed by the Acting Information Commissioner in this

respect appear to have been influenced by her reliance on the report of the

Royal Commission into Activities of Government and Other Matters which she saw

as stating well the rationale behind this legislation in this State. In my

respectful view this was an impermissible and irrelevant reliance. It was

impermissible because the report was later in time than the Bill for the FOI

Act and it is not a report upon which interpretative reliance may be placed

pursuant to s19 of the Interpretation Act 1984. It is irrelevant for that

same reason and because the task is to construe what the legislature intended,

not what some might think the legislature ought to have intended.


(Page 18)
Nevertheless, even on a much more restricted reading of the material

provisions, for the reasons given, it is my view that the documents in the

ministerial appeal file in this case (apart from the exempt documents

identified by the Acting Information Commissioner) are documents which relate

to the affairs of another agency - the City of Canning - in the relevant

sense, and are therefore documents of an agency within the meaning of s10(1)

of the FOI Act. As a consequence the respondents have a right under the FOI

Act to be given access to those documents.

I would dismiss the appeal and confirm the decision of the Acting

Information Commissioner.