IN THE SUPREME COURT ) Heard: 17 & 20 March 1995
)
OF WESTERN AUSTRALIA ) Delivered: 15 June 1995

CORAM: OWEN J

Appeal No SJA 1143 of 1994

B E T W E E N :

CHRISTOPHER ROYDON MANLY
Appellant
(Applicant)

and

MINISTRY OF PREMIER & CABINET
Respondent
(Respondent)

Catchwords

Administrative Law - Freedom of Information - financial and business
information provided by Member of Parliament to Premier following press
speculation as to police investigation of the Member's affairs - independent
report on the information so provided - whether dislosure of independent
report could reveal the police investigation or prejudice fair trial of
charges if laid - meaning of phrase "reveal the investigation" - whether
information personal - if so, whether disclosure was in public interest -
meaning of the term "public interest" in light of implied constitutional
freedom of communication on political matters - whether disclosure could
adversely affect business or financial information - whether disclosure could
prejudice future supply of similar information to government - Freedom of
Information Act 1992 - ss70, 74 and 76; Schedule 1 cls 3(1), 3(2) and 3(6);
4(3), 4(4), 4(5) and 4(7); 5(1); 6(1); 8(1), 8(2), 8(3) and 8(4).


(Page 2)
Administrative Law - Statutory Appeals from Administrative Authorities to
Courts - nature of appeal from decision of Informtion Commissioner to Supreme
Court - appeal limited to question of law - obligation of Court not to
disclose exempt matter during hearing or in reasons for decision- Court not
entitled to allow legal representative to have access to exempt matter to
assist in presentation of case on appeal - comparison with similar statutory
provisions in other Australian juridictions - Freedom of Information Act 1992
ss 85, 87 and 90.

Mr A N Siopis (instructed by Parker & Parker) appeared for the
Appellant.

Ms C F Jenkins (instructed by the State Crown Solicitor) appeared
for the respondent.
Ms L C Evans (instructed by Clayton Utz) appeared for Mr Wayde Smith
(20 March 1995 only).

Cases referred to in judgment:

Attorney-General's Department and Australian Iron and Steel Pty Ltd v
Cockroft (1986) 10 FCR 180
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Connell v R unreported CCA SCt of WA; Library No 940731; 22 December 1994
Director of Public Prosecutions v Smith (1991) 1 VR 63
Kanda v Government of Malaya [1962] AC 322
Kioa v West (1985) 159 CLR 628
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
R v Glennon (1992) 173 CLR 592
Stephens v West Australian Newspapers Ltd (1994) 68 ALJR 765
Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713


(Page 3)
Cases also cited:

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-86) 162 CLR 24
Newscorp v National Companies and Securities Commission (1984) 57 ALR 550
Re Page and Metrpolitan Transit Authority (1988) 2 VAR 243
The Western Australian Museum and The Registar of Aboriginal Sites v The
Information Comissioner, unreported, SCt of WA (White J); Library No
940341; 13 July 1994


(Page 4)
OWEN J

The appellant is a journalist. The respondent is a public body or

office which is an "agency" covered by the Freedom of Information Act 1992

("the Act"). The Information Commissioner ("the Commissioner") is a statutory

office created by s55 of the Act. The main function of the Commissioner, as

described in s63(1) of the Act, is to deal with complaints relating to

decisions made by an agency concerning access to documents held by the agency.

The appellant applied to the respondent for access to certain documents. The

respondent refused the application. The appellant complained to the

Commissioner about that decision. The Commissioner varied the respondent's

decision in part. However, the Commissioner upheld the respondent's decision

to deny to the appellant access to two of the documents that he had sought.

This is an appeal under s85 of the Act arising from that aspect of the

Commissioner's decision.

Factual Background

Wayde Smith is a member of the Legislative Assembly of the Parliament of

Western Australia. He represents the Electorate of Wanneroo. He is also a

member of the Parliamentary Liberal Party which, since February 1993, has been

in Government in this State. Prior to his election Mr Smith had been a

businessman and before that a member of the Western Australian Police Force.

During 1993 the press carried reports which reflected on Mr Smith's financial

dealings and business associations and which indicated that he had been the

subject of a police internal investigation while he was a serving police

officer.

On 20 October 1993 the Premier publicly announced that he had called for

a personal explanation from Mr Smith about certain of his financial


(Page 5)
dealings. Mr Smith's accountants provided a report to the Premier on 27

October 1993. On 1 November 1993 the Premier appointed another accountant, Mr

S J Mann, to review the report and to verify its main conclusions. In the

course of preparing his report, Mr Mann inquired of, and obtained information

from, a number of sources.

On 17 December 1993 Mr Mann provided his report to the Premier by way of

letter addressed to Mr M C Wauchope, Chief Executive, Office of State

Administration, Department of Premier and Cabinet. On the receipt of Mr

Mann's report, the Premier referred both Mr Smith's report and Mr Mann's

report to the Commissioner of Police for further consideration. On 21

December 1993, by media statement, the Premier announced that the Commissioner

of Police had reported to him that an examination of the documents had

provided no new information which warranted re-opening or commencing a fresh

police inquiry into the matter.

On 21 December 1993 the appellant applied to the respondent for access

to a bundle of documents relating to Mr Smith's financial affairs. The

respondent granted the request on three of the documents, claimed that it had

no power to release another of them and denied access to the two documents

which are the subject of this appeal. One (which I will call "Document 1") is

a letter dated 17 December 1993 from Mr Mann to Mr Wauchope entitled 'Re:

Wayde Smith', consisting of nine pages. The other ("Document 2") is a two

page letter dated 1 November 1993 from Mr Wauchope to Mr Mann. It provides

instructions for the assignment that Mr Mann was asked to undertake.

After the date of the hearing of this appeal a copy of Document 2 was

made public and was used in political arena. The means by which the document

became public are not known. The appeal is therefore of little practical

effect so far as concerns that document. However, the appellant


(Page 6)
maintains the request for access to Document 1. For the reasoning

process necessary to dispose of the appeal I will ignore the fact the Document

2 has become a public document.

On 11 February 1994 the appellant requested the respondent to carry out

an internal review of the decision to refuse access to the documents. This

the respondent did and on 23 February 1994 it advised the appellant that it

had upheld the original decision The respondent said that the documents were

exempt under clauses 3, 4, 6 and 8(2) in Schedule 1 to the Act.

On 3 March 1994 the appellant made a complaint to the Commissioner

against the respondent's decision to refuse access to Documents 1 and 2. The

Commissioner accepted the complaint and commenced an external review. Over

the ensuing months the Commissioner sought information from various persons.

At some stage during the process the police apparently revived or commenced an

investigation . The police executed a search warrant against the respondent

and seized, among other things, Document 1. On 18 September 1994 the

Commissioner handed down written reasons for decision in which she held that

the documents were exempt under cls 5(1)(b) and (d) of Schedule 1. The

Commissioner went on to state, although on one view of it she was technically

not required to do so because of the findings on clause 5(1), that she would

have upheld the respondent's decision to refuse access under clause 3 but not

have accepted the claim to exemption under cls 4, 6, 8(1) and 8(2). The

effect of the Commissioner's decision in this case was to confirm the exempt

status of Documents 1 and 2 and to deny the appellant's claim to access to

them. From that decision the appellant has appealed. The respondent has

filed a notice of contention seeking to uphold the Commissioner's decision on

other grounds. I will deal with both the appeal and the notice of contention.


(Page 7)
Mr Smith had made submissions to the Commissioner and some of those

submissions were referred to in the reasons. At the outset of the appeal

hearing it was drawn to my attention that Mr Smith had been served with the

notice of appeal in its original form and had indicated to the appellant's

solicitors that he did not wish to take a part in the proceedings. However,

he had not been served with the amended grounds of appeal. A question arose

as to whether the amended grounds were such as could conceivably impact to a

greater extent on his position. As a matter of basic fairness I ordered that

he be given notice of the hearing and of the amended grounds of appeal and

that he be afforded an opportunity to make submissions if he so wished. On

the second day of the hearing Mr Smith appeared through counsel and made

submissions on certain limited aspects of the matters in issue. I did not

understand counsel to contend that Mr Smith had been prejudiced by the fact

that he was not represented from the commencement of the hearing.

Statutory Framework - Access to Information

I should set out briefly my understanding of the legislative regime

introduced by the Act, so far as it is relevant to the disposition of the

appeal. The starting point is s10(1): "A person has a right to be given

access to the documents of an agency --- subject to and in accordance with

this Act". The terms "agency" and "document" are defined in the Glossary in

Schedule 2 of the Act. It is common ground that the respondent is an "agency"

and that Documents 1 and 2 are "documents" as defined. A person who wishes to

obtain access to a document of an agency may make application to that agency:

s11(1). The agency may refuse access to a document if the document is an

exempt document: s23(1)(a). In the Glossary the term "exempt document" is

defined as a document that contains exempt matter and "exempt matter" is


(Page 8)
defined as matter that is exempt under Schedule 1. The relevant parts

of Schedule 1 are as follows:

"3. Personal information

Exemption

(1) Matter is exempt matter if its disclosure would reveal
personal information about an individual (whether living or
dead).

Limits on exemption

(2) Matter is not exempt matter under subclause (1) merely
because its disclosure would reveal personal information about
the applicant.

-------

(6) Matter is not exempt matter under subclause (1) if its
disclosure would, on balance, be in the public interest.

4. Commercial or business information

Exemptions

------

(3) Matter is exempt matter if its disclosure -

(a) would reveal information --- about the business,
professional, commercial or financial affairs of a
person; and

(b) could reasonably be expected to have an adverse effect
on those affairs or to prejudice the future supply of
information of that kind to the Government or to an
agency.

Limits on exemptions

(4) Matter is not exempt matter under subclause ---(3)
merely because its disclosure would reveal information about
the business, professional, commercial or financial affairs of
an agency.

(5) Matter is not exempt matter under subclause ---(3)
merely because its disclosure would reveal information


(Page 9)
about the business, professional, commercial or financial affairs
of the applicant.

------

(7) Matter is not exempt matter under subclause (3) if its
disclosure would, on balance, be in the public interest.

5. Law enforcement, public safety and property security

Exemptions

(1) Matter is exempt matter if its disclosure could
reasonably be expected to -

(a) impair the effectiveness of any lawful method or
procedure for preventing, detecting, investigating or
dealing with any contravention or possible contravention
of the law;

(b) reveal the investigation of any contravention or
possible contravention of the law in a particular case,
whether or not any prosecution or disciplinary
proceedings have resulted;

-------

(d) prejudice the fair trial of any person or the impartial
adjudication of any case or hearing of disciplinary
proceedings;

-------

8. Confidential communications

Exemptions

(1) Matter is exempt matter if its disclosure (otherwise
than under this Act or another written law) would be a breach
of confidence for which a legal remedy could be obtained.

(2) Matter is exempt matter if its disclosure -

(a) would reveal information of a confidential nature
obtained in confidence; and


(Page 10)
(b) could reasonably be expected to prejudice the future
supply of information of that kind to the Government or
to an agency.

Limits of exemption

-------

(4) Matter is not exempt under subclause (2) if its
disclosure would, on balance, be in the public interest."

A person who is aggrieved by a decision of an agency on a request for

access to documents has a right to have the decision reviewed by the agency

concerned (s39). If still dissatisfied after the completion of that process

the person may make a complaint to the Commissioner: s65(1). Unless the

Commissioner decides that the complaint falls outside the powers conferred by

the Act or is frivolous, vexatious, misconceived or lacking in substance the

Commissioner must deal with the complaint: s67(1). This is referred to in the

Act as an external review of decisions. In dealing with a complaint the

Commissioner may review any decision made by the agency in relation to the

access application and decide any matter raised by it: s76(1). The

Commissioner's decision must be in writing and must contain the reasons for

the decision and the findings on material questions of fact underlying those

reasons: ss76(2) and (5).

When making its original decision and in the internal review, the

respondent did not rely on cls 5(1)(b) and (d) of Schedule. However, the

Commissioner, in dealing with a complaint, is not bound by the grounds for

exemption relied on by the agency and the appellant did not contend that she

was so limited. If the Commissioner comes to the conclusion that the

documents are, for any reason, exempt there is no power to order that access

be given to the document: s76(4). In other words, once a decision is reached


(Page 11)
that the document is exempt there is no discretion as to the granting of

the relief sought by the access applicant.

Statutory Framework - Appeals to the Supreme Court

Under s85(1) an appeal lies to the Supreme Court on any question of law

arising out of a decision of the Commissioner on a complaint relating to an

access application. On the determination of an appeal the Court may confirm

or vary the Commissioner's decision or may set it aside and either make a

decision in substitution for the decision appealed from or remit the matter

back to the Commissioner for further consideration: s87(1).

If it is established that a document is an exempt document the Court

does not have the power to make a decision to the effect that access is to be

given to the document: s87(3). In other words, once a decision is reached

that a document is exempt, there is no discretion concerning the end relief.

In this respect the Court is in the same position as the Commissioner.

One provision with which I had some difficulty during the hearing is

s90, which is in these terms:

"(1) In hearing and determining review proceedings the Court has to
avoid disclosure of -

(a) exempt matter; or

(b) -----.

(2) If in the opinion of the Supreme Court it is necessary to do
so in order to prevent disclosure of exempt matter --- the Supreme
Court may receive evidence and hear argument in the absence of the
public and any party or representative of a party.

(3) The Supreme Court is not to include exempt matter, ---in its
decision in review proceedings or in reasons given for the decision.


(Page 12)
(4) -----."

At the commencement of the hearing I was given a copy of Document 1 and

Document 2. I think counsel for the respondent had seen those documents.

Obviously, the appellant had not seen them, but nor had his counsel and

solicitors. A question which arose immediately was whether the appellate

process could be disposed of fairly in those circumstances. As will appear

later this is a point of some significance because in some respects the fate

of the appeal turns on the contents of the documents themselves. This places

counsel in a position of considerable disadvantage in making submissions on a

contested issue. It also places the Court in a position where it is acting

without the advantage of considered submissions from one of the parties. The

question is whether the Court is at liberty to make the contested material

available to counsel (not, of course, to the party seeking access) for the

purposes of the appeal.

It is apparent from the Minister's second reading speech when

introducing the Freedom of Information Bills in 1991 and 1992 that the

legislature had in mind the freedom of information regimes in other

jurisdictions. Section 63(1) of the Freedom of Information Act 1982 (C'th)

refers to "the necessity of avoiding disclosure [of exempt matter] to the

applicant". The legislative prohibition is therefore limited to the applicant

rather than his or her legal advisers. The Victorian legislation [s56(3)]

specifically empowers the court to make information available to a qualified

legal practitioner under certain conditions. The Freedom of Information Act

1991 (SA) directs the court, where application is made by a Minister or the

agency concerned, "to receive and hear argument in the absence of the public

and, where in the opinion of the [court] it is necessary to do so in order to

prevent the disclosure of any exempt matter, the appellant's representative".


(Page 13)
This deals separately with the absence of the public and the applicant

on the one hand and of the applicant's legal advisers on the other and is thus

different to s90(2) of the Act. It seems to contemplate situations in which

the appellant's legal advisers could be given access to the exempt matter for

the purposes of the application. Section 55(6) of the Freedom of Information

Act 1989 (NSW) is, relevantly, in similar terms to s90(2) of the Act. The

Tasmanian and Queensland statutes do not contain equivalent provisions.

This comparison of the statutory regimes suggests to me that s90 ought

to be construed strictly according to its tenor. The Court has no discretion

and, whether during the hearing or in its reasons for decision the Court must

not disclose exempt information to any person including a qualified legal

practitioner. This could work injustice in a case such as this where, as will

appear later in these reasons, the exact terms of the document are central to

a resolution of its status. There is, I think, something to be said for the

proposition that Court should have a discretion in the matter. Directions can

be given and undertakings extracted to protect the integrity of the

information. This is something that the legislature could look at when next

it is reviewing the operation of the Act.

The Commissioner's Reasons for Decision

The Commissioner rejected the claim to exemption under cl 5(1)(a) of

Schedule 1 and I need say no more about it. In paragraphs 35 to 38 the

Commissioner deals with the claim for exemption under cls 5(1) (b) and (d).

She notes having received advice from the Director of Public Prosecutions

("DPP") and the Commissioner of Police about the status of Document 1. Taking

into account that advice and from her own examination of the document she

concluded that Document 1 was exempt under cl 5(1)(b). The Commissioner again

referred to the advice from the DPP and the Police


(Page 14)
Commissioner concerning disclosure under cl 5(1)(d). It is implicit in

paragraph 37 that the Commissioner was satisfied that its disclosure was

"bound to have a prejudicial effect on any subsequent trial" and was therefore

exempt under cl 5(1)(d).

The Commissioner came to the view that disclosure of Document 2 would

have the effect of disclosing matter in Document 1 and that if Document 1 is

exempt then Document 2 must also be exempt for the same reasons: see paragraph

40.

In relation to the argument under cl 3, the Commissioner found that the

documents contained personal information about Mr Smith and third parties and

were, prima facie, exempt under cl 3(1). However, the Commissioner noted that

the exemption was limited by the public interest test in cl 3(6). In this

case the Commissioner concluded that the appellant had not shown any

compelling argument that would displace the public interest in protecting the

privacy of individuals whose personal information would be disclosed by

granting access to the documents.

The Commissioner pointed out that to claim exemption under cl 4(3), the

person had to establish both limbs of the clause, namely that disclosure would

reveal information of the type mentioned and that it could reasonably be

expected to have an adverse effect on those affairs or prejudice the future

flow of information of that type to the government or the agency; see

paragraph 65. The Commissioner rejected the claim to exemption based on cl

4(3) because no satisfactory material had been placed before her to justify

the conclusions contended for.

The respondent had also claimed exemption for Document 1 under cl 6(1).

This clause provides that matter is exempt matter if its disclosure would

reveal any opinion, advice or recommendation that has been obtained, prepared


(Page 15)
or recorded, or any consultation or deliberation that has taken place in

the course of, or for the purpose of, the deliberative processes of the

Government, a Minister or any agency. It must also be established that

disclosure would, on balance, be contrary to the public interest. The

Commissioner rejected this claim because, in essence, she formed the view that

it was borne of a political imperative and was not prepared for the purpose of

the deliberative process of the Government, a Minister or an agency: see

paragraphs 77 and 78. The respondent did not challenge this conclusion in the

Notice of Contention and I need say no more about it.

Document 1 was the subject of a claim for exemption under cl 8(1) on the

grounds that its disclosure would lead to a breach of confidence for which a

legal remedy could be obtained. The Commissioner noted that as the document

had been seized by the police the respondent had been unable to particularise

its claim. The Commissioner had not sought those particulars from the

respondent because her findings on other limbs of the claim supported

exemption. There was, therefore, no material before her to satisfy the

requirements of cl 8(1): see paragraph 80.

In relation to the claim under cl 8(2), the Commissioner noted that,

once again, a person seeking to rely on it had to satisfy both limbs of the

clause, namely that the document contained confidential information obtained

in confidence and that its disclosure would prejudice the future supply of

information of that type. The Commissioner pronounced herself satisfied as to

the former but not as to the latter. There was, the Commissioner said, no

claim nor any evidence proffered that would show that the supply of

information could be under threat: see paragraphs 84, 85 and 86.


(Page 16)
Grounds of Appeal

The grounds of appeal relied on by the appellant are that the

Commissioner erred in law in that she:

"1. failed to give full and proper reasons for her decision;

2. failed to afford natural justice to the appellant in that she
did not fully or adequately inform the appellant of
submissions or the substance of submissions made to her in
opposition to the appellant's application;

3. misinterpreted the meaning of the words 'reveal the
investigations' in clause 5(1)(b) of Schedule 1 of the [Act].

4. failed to carry out such inquiries and/or take such evidence
from, in particular, the Assistant Commissioner of Police and
the Director of Public Prosecutions so as to enable her to
make the informed and independent judgment as was required
under the Act on whether each of the Documents was exempt
under each or either of clause 5(1)(b) or clause 5(1)(d) of
Schedule 1 of the Act;

5. failed to exercise an independent judgment in deciding whether
each of the Documents was exempt under each of or either of
clause 5(1)(b) or clause 5(1)(d) of Schedule 1 of the Act, but
instead acted upon the judgment of the Assistant Commissioner
of Police and the Director of Public Prosecutions, neither of
whom was authorised under the Act to make the said judgment;

6. failed to take into account relevant considerations in
purporting to apply clause 5(1)(d) of Schedule 1 of the Act in
that she failed to take into account factors established under
the general law as being relevant to determining the potential
for prejudice to a fair trial being:

(a) whether any charge was pending to which the material was
relevant;

(b) the degree of relevance of the material to the charge;

(c) the lapse of time between disclosure of the material and
the trial in question;


(Page 17)
(d) whether the material was known to the public;

(e) the likely impact of the material in the mind of the
public;

(f) the ability of an appropriate direction at trial to
negate any prejudicial effect of the material;

7. in purporting to apply Clause 3 of Schedule 1 of the Act and
in considering whether the disclosure of the Documents would
be in the public interest, failed to recognise that there is a
constitutional right in members of a society generally to a
free flow of information regarding their representatives in
government and the role of the applicant as a journalist in
giving effect to this constitutional right."

There is one point that I should mention about the grounds of appeal.

Ground 7 might give the impression of a matter arising under the Constitution

or involving its interpretation such as to attract the operation of s78B of

the Judiciary Act 1903 (C'th). When this issue was raised at the commencement

of the hearing I indicated that I would hear argument on the matter generally

and if I were to come to a view that it involved a constitutional matter I

would sever that aspect and limit my deliberations to things to which s78B had

no application. Properly understood I do not think that it has that import.

I did not understand the case put by the appellant to involve a direct

application of the implied right into the statutory scheme represented by the

Act or to involve any extension of the principle as enunciated in the

authorities. I do not believe that the appeal raises a matter arising under

the Constitution or involving its interpretation. I will say more about this

issue later.

The Notice of Contention proceeds on the assumption that as the

Commissioner has dealt with all the factual matters that were appropriate to

the issues raised under cls 3, 4, 6 and 8 of Schedule 1 the decision can be


(Page 18)
reviewed even though the actual decision was limited to cl 5(1). The

grounds revealed in the Notice of Contention are as follows:

"1. In any event the decision of [the Commissioner] should be
varied by finding that the documents are exempt under clause 3 of
Schedule 1 to [the Act].

[The Commissioner] found at paragraphs 44-63 (inclusive) of
her Reasons for Decision that the documents contained personal
information and that the Appellant had not shown any compelling
argument that would displace the public interest in protecting the
privacy of individuals in granting access to the documents.

2. In the event of the Appeal being allowed in whole or in part
the decision of [the Commissioner] should be varied by finding that
the documents are exempt under one or more of clauses 4(3) and 8(2)
of Schedule 1 to [the Act].

PARTICULARS

(a) Clause 4(3)

[The Commissioner] found that the disclosure of [Document 1]
would reveal information about the business and financial affairs of
a person(s) as referred to in clause 4(3)(a).

[The Commissioner] erred in law in finding:

(i) that the Respondent or the person(s) whose information
would be disclosed had failed to produce sufficient 'material to
explain how or in what manner the business would be adversely
affected and why it would be reasonable to expect such an effect, if
any, to follow from disclosure of the documents';

(ii) that disclosure could not reasonably be expected to
prejudice the future supply of information of that kind to the
Respondent (or any other agency).

(b) Clause 8(2)

[The Commissioner] found that [Document 1] contained
confidential information that was given to or received by the
Respondent in confidence.


(Page 19)
[The Commissioner] erred in law in finding that there was no
material before her to establish that the disclosure of the
documents could reasonably be expected to prejudice the future
supply of information of that kind.

3. In the event of the Appeal being allowed in whole or in part
and the documents are held to be otherwise non exempt, the matter
should be remitted to [the Commissioner] for the claim for exemption
under clause 8(1) of Schedule 1 to the [Act] to be determined
according to law."

The Adequacy of the Reasons for Decision

The essence ground 1 is that the Commissioner failed to make findings on

material questions of fact underlying the conclusion that the documents were

exempt because disclosure could reasonably be expected to reveal the

investigation or prejudice a fair trial. Properly understood, I think that

this is simply another way of expressing the proposition contained in grounds

4 and 5.

There is, in my opinion, no valid criticism that can be made of the

reasons in a general sense. They are, with respect, comprehensive, considered

and logically set out. The reasons for coming to the conclusion on cl 5(1)

are clearly stated. In paragraphs 23 and 24 of the reasons, the Commissioner

sets out the material on which she based the decision.

I will deal in more detail with the substance of the decision making

process when I come to consider grounds 4 and 5. It is sufficient for me to

say at this stage that no person reading paragraphs 35 to 40 of the reasons

could be in any doubt as to the basis on which the conclusion was arrived at.

The information on which it was founded is there. The essential findings of

fact underlying the decision are there. A reasonable reader would understand

that the Commissioner had read Document 1 and Document 2 and had received

submissions from the DPP and the Commissioner of Police. On this basis, she

had reached a particular conclusion. The reader might not agree with the


(Page 20)
conclusion and might be critical of the deductive and investigative

process that lay behind it. They are different matters. I am satisfied that

the reasons are, in themselves, adequate and that the Commissioner has

properly discharged her responsibilities under s76(5). Ground 1, as a

separate ground of appeal, has not been made out.

Has the Appellant Been Afforded Natural Justice?

The natural justice point contained in ground 2 is of much more limited

focus than might at first appear. Counsel for the appellant did not seek to

argue that the appellant had been denied adequate information about opposition

submissions generally. Rather, the complaint was that the Commissioner had

not fully disclosed the submissions made to her on which she based the

conclusion that disclosure would run counter to cl 5(1). Once again I believe

that this is simply another way of enunciating the problem to which grounds 4

and 5 are directed.

The Commissioner is required to conduct proceedings with as little

formality and technicality, and with as much expedition, as the requirements

of the Act and a proper consideration of the matters permit: see s70(2). The

Commissioner has to ensure that parties to a complaint are given a reasonable

opportunity to make submissions: see s70(3). In dealing with a complaint the

Commissioner has a duty to avoid the disclosure of exempt matter: see s74(1).

There is no all embracing doctrine of natural justice. Each case falls

to be considered on its own facts and in accordance with the exigencies of the

investigation that has been undertaken. Acts done or opportunities afforded

in one situation might satisfy the requirements of natural justice and yet not

do so in another. Much depends on the statutory framework. In this case s70

sets out the broad thrust of what is required. Put in a succinct way, I think

the


(Page 21)
Legislature has directed the Commissioner to conduct proceedings in a

manner that will afford procedural fairness to all persons affected by the

dispute.

The concept of procedural fairness is one that is well known to the law

and one which the law guards jealously. In Kanda v Government of Malaya

[1962] AC 322 at pp337-338 Lord Denning said, in the context of a criminal

proceeding but in a way which expresses a general principle:

"If the right to be heard is a real right which is worth anything,
it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been
given and what statements have been made affecting him: and then he
must be given a fair opportunity to correct or to contradict
them....It follows, of course, that the judge or whoever has to
adjudicate must not hear evidence or receive representations from
one side behind the back of the other..."

In Kioa v West (1985) 159 CLR 628 Brennan J put it this way at 627-629:

"The repository of a power has to adopt a reasonable and fair
procedure before he exercises the power ---. As the obligation to
observe the principles of natural justice is not correlative to a
common law right but is a condition of exercising a statutory power,
the repository satisfies the condition by adopting a procedure that
conforms to the procedure which a reasonable and fair repository of
the power would adopt in the circumstances when the power is
exercised. When the question for the court is whether the condition
is satisfied, the court must place itself in the shoes of the
repository of the power to determine whether the procedure adopted
was reasonable and fair. ---. A person whose interests are likely
to be affected by an exercise of power must be given an opportunity
to deal with relevant matters adverse to his interests which the
repository of the power proposes to take into account in deciding
upon its exercise:---. Nevertheless in the ordinary case where no
problem of confidentiality arises an opportunity should be given to
deal with adverse information that is credible, relevant and
significant to the decision to be made."


(Page 22)
On 15 July 1994 one of the Commissioner's legal officers wrote to the

appellant advising him that Document 1 had been seized under a warrant and

that she had written to both the DPP and the Commissioner of Police seeking

advise as to the status of the document and as to whether they considered the

document to be exempt under the Act. The letter then goes on:

"Taking into account the responses received from the DPP and the
Acting Commissioner of Police, the Commissioner is now of the
preliminary view that [Document 1] may also be exempt from
disclosure under clauses 5(1)(a) and (b) of Schedule 1 to [the Act],
as well as under clauses 8 and 3 --- as previously advised. ---if
you wish to pursue the complaint to a formal decision, please so
advise me by close of business on Monday, 18 July 1994."

It is true that the Commissioner does not disclose in the letter what

either the DPP or the Police Commissioner had reported to her. It is true

also that there is no reference to cl 5(1)(d). Nonetheless, on 18 July 1994

the appellant responded by letter which made specific reference to cl 5(1)(b)

and giving reasons why he thought it was not applicable.

The Commissioner had to tread carefully. There was a duty not to

disclose exempt matter and a duty of confidentiality therefore arose. She

could, I think, have properly formed the view that to give to the appellant

copies of the letters from DPP and the Commissioner of Police would have been

to put at risk that duty of confidentiality. There was a balance to be

struck. When close attention is paid to the text of the letters from DPP and

the Police Commissioner it is hard to see how the appellant would have been in

a better position to deal with the issues because of the bland terms in which

they are written. Certainly, he would then have been apprised of the reliance

on prejudice to a fair trial as a possible ground for non-disclosure.

However, the fact remains that both limbs of the clause were available in

support of the exemption claim.


(Page 23)
On balance I do not think that ground 2, again as a separate ground, has

been made out in the circumstances of the case.

Construction of "Reveal the Investigation"

Ground 3 asserts that the Commissioner erred in law by misinterpreting

the phrase "reveal the investigation" in cl 5(1)b of Schedule 1. In this

respect the Act is different to its counterparts in other jurisdictions.

Clause 5(1)(b) is aimed at material that would "reveal" an investigation.

Analysis of similar provisions in other jurisdictions is of little assistance

because, generally speaking, those other provisions preclude access to a

document only if access would "prejudice" the investigation. In that

situation once an investigation is complete it would be permissible for the

Commissioner to release the document because the investigation cannot be

prejudiced. In contrast to this, the wording of cl 5(1)b must be looked at in

its entirety. It concludes with the phrase "whether or not any prosecution or

disciplinary proceedings have resulted". It would seem therefore, that under

the Act, the investigation is to remain confidential irrespective of any

consequences which may or may not flow from its findings.

It is apparent from paragraphs 35 and 36 that the Commissioner construed

the phrase "reveal the investigation" as meaning reveal the specifics of an

investigation rather than reveal merely the fact that there was an

investigation of some kind. Paragraph 35 is interesting. It states:

"A far as I am aware, the applicant has no knowledge of the contents
of Document 1 and, therefore, he is not able state [sic], with any
degree of particularity, whether the specifics of an investigation
would or would not be revealed by disclosure of the documents. Of
course, the onus does not lie on the applicant. However, several
possibilities come to mind. Disclosure may reveal for example, the
names of potential witnesses, sources of evidence, the nature of the
investigation, the substance of the


(Page 24)
particular matters being investigated, the identity of possible
offenders or other breaches of the law."

The argument that the appellant had put to the Commissioner was that the

police investigation was already a matter of detailed public record and

disclosure could not reveal the specifics of the investigation. The

Commissioner dealt with this argument in paragraph 36:

"Document 1 has been seized by police as part of ongoing police
investigations. That much is publicly known. However, it is not
publicly known, to my knowledge, just who or what the police are
investigating nor what the nature, substance or extent of the police
investigation might be. The details of the contents of Document 1
are not matters of public knowledge either and the relevance of its
contents to any police investigation would be within the knowledge
of a limited number of police investigators and officers of the DPP.
I accept the advice provided to me by the Assistant Police
Commissioner and the DPP about the status of Document 1. Taking
into account that advice, and my own examination of its contents, I
am satisfied that it is reasonable to expect that the disclosure of
Document 1 could reveal more than merely the fact that there was an
investigation of some kind. ---."

A document must reveal the investigation before it can be held to be

exempt under cl 5(1)b. Counsel for the respondent argued that the words

should be given their natural and ordinary meaning and were of broad import.

To "reveal" is "to divulge; disclose or to make known": The Shorter Oxford

English Dictionary Third Edition Vol. 1. Counsel for the appellant argued for

a more limited interpretation of the phrase "reveal the investigation". He

submitted that the legislature intended to protect from disclosure the

investigator's file. Counsel argued that a document which came into existence

quite independently of the investigation, which did not emanate from the

investigators and which became part of the investigators file only because of


(Page 25)
that seizure, would not be exempt. The clause was aimed at documents

which went to the conduct and course of the investigation.

I think the clause is aimed at the specifics of the investigation, and

not at the mere fact that there is or has been an investigation. This much

seems to have been common ground in the correspondence between the appellant

and the Commissioner. A document is not exempt from disclosure simply because

it would reveal the fact of the investigation. It must reveal something about

the content of the investigation. Paragraphs 35 and 36 show that this is how

the Commissioner interpreted the phrase and in my opinion no error is

disclosed in that regard.

I also think that it would be wrong to test the coverage of the clause

by looking at the document in isolation. It must be considered in the light

of the surrounding circumstances and in view of what else is known to the

parties and the public. This gives meaning to the exchange between the

appellant and the Commissioner as to the extent to which details of the

investigation were already in the public domain. The exemption applies if

disclosure of that document would reveal the investigation. There must be

something in the document which, when looked at in the light of the

surrounding circumstances, would tend to show something about the content of

the investigation. If that material is already in the public arena then it

could not properly be said that the disclosure of the document would reveal

the investigation.

In my opinion the more limited interpretation of the phrase contended

for by the appellant is not justified. I do not think that the exemption is

necessarily limited to documents or matters that have emanated from the

efforts of the investigators. Nor do I think that a document prepared before

the commencement of the investigation and with no connection (at its genesis)

to the investigation is necessarily outside the terms of the exemption. For


(Page 26)
example, the letter written by a blackmailer to the victim could, if

disclosed, reveal a good deal about a later investigation into an offence

against s397 of the Criminal Code even though the letter pre-dated the

investigation.

In this case, what is in the public domain is that Document 1 was

prepared and has been the subject of seizure under a search warrant. It would

not, in my opinion, be sufficient to presume the validity of the seizure and

to infer from the fact of seizure that the document must relate to the subject

matter of the investigation. It is a matter of common experience that during

the course of a police investigation many documents or articles are seized

that, in the long run, turn out to have no relevance to the course of the

proceedings. Nonetheless, the circumstances in which the document came into

the possession of the police is one of the surrounding circumstances to which

regard must be paid.

Of greater relevance is the content of the document itself. In this

regard it is important to look at the reasons in their entirety. Paragraph 36

should not be looked at on its own. There are important things which are

canvassed in paragraph 35. The Commissioner has looked at Document 1. She

has considered it in the light of the surrounding circumstances, that is, by

asking what is publicly known about the issue, and has taken into account the

advice given to her by other statutory office holders. After taking all of

this into account the Commissioner has concluded that cl 5(1)(b) is

applicable.

There is, in my opinion, no basis on which I could conclude that the

Commissioner has misinterpreted the phrase "reveal the investigation" or had

somehow applied the wrong test in examining that issue. That is the basis on

which the challenge was mounted. The Supreme Court can only intervene if

there has been an error of law. The question here is whether the correct test

was applied, not whether the Court would have arrived at the same answer if it


(Page 27)
were called upon to exercise the decision making power afresh. Ground 3

has not been made out.

Did the Commissioner Make an Independent Decision?

It is convenient to deal with grounds 4 and 5 together. Counsel for the

appellant submitted that the Commissioner erred in law because she failed to

make the enquiries necessary for her to make an independent decision but

rather that she acted on the judgment of the DPP and the Police Commissioner.

Parliament has entrusted the Commissioner with extensive and wide

ranging investigative powers. Under s63 of the Act the main function of the

Commissioner is to deal with complaints concerning decisions made by agencies

on, inter alia, access applications. By operation of s64 the Commissioner has

the power to do all things that are necessary or convenient to be done in

connection with the Commissioner's functions. The Commissioner has power to

compel the production of documents [s72(1)] and to require the attendance of a

person to answer questions relevant to a complaint[s72(3)]. The Commissioner

can administer an oath or affirmation and may examine a person on oath or

affirmation: s73. Under s75 of the Act the Commissioner has the power to

require an agency to produce a document for the Commissioner's inspection.

This power cannot be defeated by any claim of confidentiality, legal

professional privilege or secrecy that might otherwise exist (s81). It is an

offence to refuse or fail to produce a document or to give information to the

Commissioner without reasonable cause: s83.

A person or body vested with a statutory power must exercise that power

independently unless a power to delegate appears expressly or by necessary

implication. In this case there is an express power to delegate, but it is in

limited terms. Section 79 provides for the delegation of certain functions


(Page 28)
of the Commissioner, but the power under s76 to make a decision on a

complaint is expressly excluded.

The question in a case such as this is whether the end result is truly

the decision of the repository of the power The general rule is that the

discretion must be exercised by the person in whom the power has been reposed.

This is a question of substance rather than form. It will depend on the facts

of the particular case. What can be said is that the valid exercise of a

discretion requires the correct authority genuinely to apply his or her mind

to, and make a conscious choice on, the subject matter. It will be a valid

exercise of the power (at least on the issue to which this ground of appeal is

directed) if the Commissioner seeks information or advice from others so as to

place herself in a position where she will be able to make an informed

decision. On the other hand, the exercise of the power will not be valid if

the Commissioner simply adopts unquestioningly and uncritically the decision

or view of another.

On July 7 1994 the Commissioner received a letter from the DPP.

Paragraph 23 of the reasons describes the letter and the Commissioner's

approach to it in these terms:

"[The DPP] told me that he had requested the police to conduct
certain investigations. He did not elaborate on the nature of those
investigations but said that police officers had executed a search
warrant and seized document 1. He further advised me that it was
his understanding that the police were holding document 1 pursuant
to a specified provision of the Criminal Code and it was his view
that disclosure of document 1 "..at this stage in the investigation
is likely to seriously impair future investigation of possible
offences which may have been committed.. " and further "..if charges
do result, that the publication of Document 1 is bound to have a
prejudicial effect on any subsequent trial."


(Page 29)
The Commissioner also received a letter from the Assistant Commissioner

of Police. At paragraph 24 of the reasons the Commissioner says:

"... the Assistant Commissioner of Police, on behalf of the
Commissioner of Police, advised me that document 1 had been
identified as an integral part of ongoing police investigations
involving particularly sensitive issues. The Assistant Commissioner
did not elaborate on the nature of those investigations. He did,
however, say that it was paramount that the investigations remain
confidential and that document 1 should not be subject to disclosure
as such disclosure may well hinder the proper conduct of those
investigations. The Assistant Commissioner of Police said that he
believed that document 1 was exempt on the grounds set out in cl
5(1)(a) and cl 5(1)(b) of schedule 1 to the FOI Act."

I have had the advantage of reading each of these letters. In my

opinion, with one possible exception, there is nothing material in them that

the Commissioner has not disclosed in her reasons. The exception is a

reference in the DPP's letter to the source of the concern that caused him to

make the request but there are no further details. I have perused the

Commissioner's correspondence file. It contains a myriad of press clippings

about Mr Smith and other matters. However, it contains nothing that would

advance the state of knowledge about the police investigations beyond that

which is disclosed in the two letters.

There is, therefore, nothing in the evidence before me to show that the

Commissioner was apprised of any other information than that to which she has

referred in the reasons. The Commissioner was not informed of the nature or

extent of the police investigations and she did not make enquiries about these

issues. For example, I do not believe that she obtained a copy of the


(Page 30)
search warrant which, presumably, would have revealed the general nature

of the alleged offences that were being investigated.

Leaving to one side the documents themselves, if the extent of the

Commissioner's knowledge was as limited as the information available to me

seems to suggest I must harbour concern whether it could be said that the

Commissioner has genuinely applied her mind to, and made a conscious choice

on, the subject matter. There is a hint of the Commissioner's reasoning

process in paragraph 32: "I have been advised that Document 1 contains

information identified as being an integral part of ongoing police

investigations and I feel compelled to accept that advice" (italics added).

It is made to appear that the Commissioner has adopted unquestioningly and

uncritically the decision or view of the DPP that disclosure would be "likely

to seriously impair future investigation[s]" and would be "bound to have a

prejudicial effect on any subsequent trial" and the view of the Assistant

Commissioner of Police that disclosure "would jeopardise investigations

currently under way". If the ultimate decision was based on that information

alone I am not sure that the conclusion that the documents were exempt under

cls 5(1)(b) and (d) was a proper exercise of the Commissioner's discretion.

The DPP holds an office of considerable status and importance in the

administration of justice in this State. He is not subject to direction by

the Attorney General or any other person in the performance of his functions:

see Director of Public Prosecutions Act 1991 s25. He is an "exempt agency",

as that term is used in the Act, and could not be required to provide

information under, for example, s72 of the Act. Similar comments could also

be made about the status and importance of the Commissioner of Police and the

functions that he performs. Each of them handles, on a day to day basis,

serious and often complex investigations and enquiries. Within their

respective