VID784/2024 – Chief Executive Officer of the National Anti-Corruption Commission – Submissions (22 November 2024)

Details of Filing

Document Lodged: Submissions
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 22/11/2024 3:48:28 PM AEDT
Date Accepted for Filing: 25/11/2024 8:40:41 AM AEDT
File Number: VID784/2024
File Title: JAN MAREK KANT v CHIEF EXECUTIVE OFFICER OF THE NATIONAL ANTI-CORRUPTION COMMISSION
Registry: VICTORIA REGISTRY – FEDERAL COURT OF AUSTRALIA

FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY: VICTORIA
DIVISION: GENERAL

NO VID 784 of 2024

JAN MAREK KANT
Applicant

CHIEF EXECUTIVE OFFICER OF THE NATIONAL ANTI-CORRUPTION COMMISSION
Respondent

RESPONDENT’S WRITTEN SUBMISSIONS
PART I INTRODUCTION

  1. This is an application under s 39B of the Judiciary Act 1903 (Judiciary Act) in the Federal Court of Australia’s original jurisdiction in which the applicant seeks review of a decision of an FOI Officer made on 5 August 2024. The applicant seeks an order compelling the respondent to provide access to ‘Document 3’ as referred to in the FOI Officer’s letter of 5 August 2024.
  2. The application should be dismissed, with costs, either because:
    2.1. The Court may be satisfied, as a preliminary point without determining the merits of the application, that it should not grant the relief sought by the applicant because (i) a more convenient merits review forum exists (see below at [73] to [77] and (ii) that the application lacks utility (see below at [71]-[72]),
    2.2. The Court may be satisfied that the applicant has not discharged his onus of demonstrating jurisdictional error or constitutional invalidity, or alternatively that no such error or invalidity exists, or
    2.3. The Court may be satisfied of a combination of the matters raised at [2.1] and [2.2].

PART II BACKGROUND

  1. On 14 November 2023, the applicant contacted the National Anti-Corruption Commission (the Commission) by Webform disputing a decision made by the Commonwealth Ombudsman to refuse access to records.
  2. On 12 December 2023, the Commission’s ‘Intake and Triage’ team responded to the applicant noting that a dispute about an administrative decision does not necessarily give rise to a corruption issue and providing further information about what detail a report to the Commission should include. The email concluded that the matter was closed.
  3. On 3 June 2024, the applicant sent an email to foi@nacc.gov.au seeking access to ‘all records with information about the report I submitted to NACC with “reference/webform ID” 2023111454442-8117.’
  4. On 5 July 2024, the respondent’s delegate decided to provide partial release of 2 documents, and refused access to a third document. Access to ‘Document 3’ was initially refused on the basis of ss 47C and 47F(1). That is, because the document disclosed deliberative matters and contained personal information about Commission Officers.
  5. On 6 July 2024, the applicant sought internal review of the access refusal decision.
  6. On 5 August 2024, the respondent’s delegate (the FOI Officer) made a decision (the Decision) on the internal review, varying access to Document 1, but otherwise affirming the remainder of the 5 July 2024 decision. In relation to ‘Document 3’, the ss 47C and 47F(1) exemptions were upheld, but the FOI Officer found that s 47E(d) also applied. That is because the FOI Officer considered that release of the document would have a substantial adverse effect on the proper and efficient conduct of the operations of the Commission.
  7. On 6 August 2024, the applicant filed the present application.

PART III BEFORE THE FEDERAL COURT

  1. The application seeks the following relief:
    A prerogative or statutory writ, or an order of like nature, requiring the Respondent release the “document 3” referred to in his letter dated 5 August 2024.
  2. The application is not supported by a statement of claim or any pleadings.

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  1. The applicant has also filed a Notice of a Constitutional matter under s 78B of the Judiciary Act (s 78B Notice) which asserts that ss 47C, 47E, 47F and 93A of the Freedom of Information Act 1982 (FOI Act) are ultra vires the Constitution.
  2. The respondent does not object to the applicant’s reliance on the affidavit of Jan Kant dated 6 August 2024, to the extent that it annexes relevant documents. The respondent also seeks to rely on an affidavit of Centaine Mumford dated 22 November 2024.

PART IV SUBMISSIONS
There are no grounds to answer

  1. The originating application for judicial review filed on 6 August 2024 contains a bare request for relief, being the release of Document 3. The application does not identify any error and contains no particulars. The affidavit accompanying the application does not contain any pleadings or particulars upon which the relief is sought, it simply annexes the relevant documents. The s 78B notice filed by the applicant is not a pleading and should not be treated as one: a notice given under s 78B of the Judiciary Act ‘can do no more than draw to the attention of the Attorneys-General constitutional issues which are otherwise raised in the proceeding, and therefore issues which should be apparent from the originating application and points of claim’.
  2. A failure to provide particulars is a sufficient basis upon which to dismiss an application for judicial review. Despite the manifest deficiency in the originating application, the respondent accepts that by his written submissions the applicant has raised bare but recognisable grounds of judicial review; and that he has claimed that certain provisions of the FOI Act are invalid because they are ultra vires the Constitution (on three separate grounds, which he has asserted but not otherwise articulated). These submissions respond to the applicant’s ‘grounds’ to the extent they can be discerned by the respondent.

The Applicant’s submissions do not establish jurisdictional error
Allegations concerning the manner in which the applicant’s disclosure was dealt with

  1. The applicant’s submissions raise questions about the manner in which the respondent dealt with his disclosure to the Commission and makes vague allegations about incompetence and reprisals (AS at [10] to [20]; and matters raised in the second affidavit of Jan Marek Kant dated 14 October 2024). Although the respondent does not accept the applicant’s characterisation, those aspects of the Commission’s decision making are not the subject of the applicant’s judicial review application and is a distraction from the issues before this Court.

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Application of the FOI Guidelines

  1. The applicant takes issue with the manner in which the FOI Officer described the operation of the guidelines which have been issued by the Australian Information Commission under s 93A of the FOI Act (the FOI Guidelines).
  2. Under the FOI Act, regard must be had to the FOI Guidelines, but they are not legislative instruments and are expressed as being strictly non-binding on decision-makers. Since the original FOI Guidelines were published on 24 December 2010 chapters have been individually updated periodically. Part 5 of the FOI Guidelines deals with ‘Exemptions’. The current version of Part 5 is version 1.6 which was published in May 2024. Part 6 of the Guidelines deals with ‘Conditional Exemptions’. The current version of Part 6 is version 1.4 which was published on 15 May 2024. These versions are found in the third Kant Affidavit at pages 3-110.
  3. It is apparent from the decision record that the FOI Officer applied a version of Part 6 of the FOI Guidelines which was published immediately before the 15 May 2024 update (i.e. the FOI Officer applied version 1.3 of Part 6). A copy of a compilation of the guidelines relied upon by the FOI Officer is at pages 69-423 of the affidavit of Centaine Mumford.
  4. The difference between versions 1.3 and 1.4 of Part 6 of the FOI Guidelines is that the content has been re-ordered and previous references to a ‘harm threshold’ have been removed and replaced with ‘statutory criteria for the conditional exemption’. As such, the relevant pin-point references to the FOI Guidelines in the decision-record do not match the text of the current version of the FOI Guidelines (as has been identified by the applicant in his submissions). However, the pin-point references in the decision-record do match up with text in version 1.3 of Part 6 FOI Guidelines which is, for the most part, identical to text in version 1.4 of Part 6. The practical effect of this is an error akin to a typographical error which does not give rise to any jurisdictional error.
  5. The respondent contends that no issue arises from the application of the earlier guidelines in circumstances where the content of the two guidelines were essentially the same. A decision maker does not fall into error when applying an older policy or guideline where the policy or guideline is the same or materially the same as the new policy. Put in more recent parlance, any reference to the older FOI Guidelines

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would not result in a material error in the sense that there was no ‘realistic possibility that the outcome of the decision could have been different had that error not been made’. Alternatively, the Court should not quash the decision of the FOI Officer in circumstances where they were required to merely ‘have regard’ to the FOI Guidelines, which were expressly designed not to be a legislative instrument and were expressly identified as being not binding on the respondent.

Section 47C exemption and para 6.55 of the FOI Guidelines

  1. The FOI Officer was satisfied that Document 3 was conditionally exempt because its production would disclose a deliberative matter. In reaching that conclusion, the FOI Officer identified what a ‘deliberative matter’ is in the following terms:
    a deliberative matter includes an opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency.
  2. The FOI Officer concluded that Document 3 contained a deliberative matter because it was in the nature of and relating to opinion, advice and recommendations, and interim decisions or deliberations. The FOI Officer found that the material in Document 3 contained material which involved:
  • the weighing and evaluation of information received by the Commission about a possible corruption issue and consideration of an appropriate course of action; and
  • internal workflows and decision-making processes.
  1. At AS [21] the applicant appears to take issue with part of the internal review decision record which states that:
    In applying this conditional exemption, the FOI Guidelines at [6.55] provide that no type of harm is required to result from disclosure. Rather, the only consideration is whether the document includes content of a specific type, namely a deliberative matter.
  2. Paragraph 6.55 of version 1.3 of Part 6 of the FOI Guidelines provided as follows:
    [6.55] The deliberative processes exemption differs from other conditional exemptions in that no type of harm is required to result from disclosure. The only consideration is whether the document includes content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision, regardless of any harm that may result from disclosure.

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  1. The equivalent paragraph version 1.4 of Part 6 of the FOI Guidelines is found in [6.50] which provides as follows:
    [6.50] The deliberative processes conditional exemption provides a framework through which the nature and context of the information must be examined before the conditional exemption will apply. Firstly, the information must include content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision. This requires a factual determination by the decision maker as an initial step in satisfying themselves that the conditional exemption applies because the document contains deliberative matter involved in a deliberative process.
  2. The respondent contends that there are two immaterial differences between these paragraphs, being:
    27.1. First, version 1.3 of Part 6 of the FOI Guidelines refers to the fact that ‘no type of harm is required to result from the disclosure’ for the exemption to apply. This was removed in version 1.4. The reference to ‘harm’ in version 1.3 is simply noting that the ‘harm principle’ referred to elsewhere in version 1.3 does not apply to s 47C. The fact that version 1.4 is silent about the absence of a harm requirement is not materially different to version 1.3. The statement about an absence of a harm requirement is a correct recitation of the law. Section 47C of the FOI Act does not require there to be any harm, damage, prejudice, disadvantage or adverse effect from the disclosure of the deliberative information. No error could arise from the FOI Officer complying with a policy which merely states the content of the relevant legislation, even if a newer applicable version of that policy does not expressly contain that statement (but the law remains unchanged). Either way, the Court should expect that the respondent would follow the legislative requirements (which it did).
    27.2. Secondly, version 1.4 of Part 6 of the FOI Guidelines expressly requires there to be an ‘initial step’ by which the decision-maker satisfies themselves that there is a ‘deliberative matter involved in a deliberative process’. This does not materially alter the steps taken under version 1.3 of Part 6 of the FOI Guidelines, which:
    27.2.1. raised the issue of whether a document contains ‘deliberative matter’ in the first part of the relevant passage of the FOI Guidelines;
    27.2.2. expressly stated at [6.55] that ‘if a document does not contain deliberative matter, it cannot be conditionally exempt under this provision’;
    27.2.3. stated at [6.64] that ‘[t]he agency must assess all the material to decide if it is deliberative matter that relates to, or is in the nature of, the deliberative processes of the agency or minister’, and then

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27.2.4. subsequently deals with the public interest test at [6.78].
And critically, it is clear from the FOI Officer’s decision that they did determine that the document involved a deliberative matter involving a deliberative process as an initial step before going on to consider the public interest test (which occurs subsequently in the decision record under separate heading).

  1. Accordingly, the respondent submits that no jurisdictional error arises from the reference to [6.55] of the FOI Guidelines.

Paragraphs 6.22 of the FOI Guidelines

  1. The applicant also takes issue with the references to [6.22], [6.91], [6.143] in the decision of the FOI Officer.
  2. The FOI Officer refers to [6.22] at page 5 of the decision. This is a reference to [6.22] of version 1.3 of Part 6 of the FOI Guidelines. That paragraph is relevantly identical to [6.233] of version 1.4 of Part 6 the FOI Guidelines, although the later paragraph is supplemented by footnotes with references to other merits review decisions (both decisions of the Administrative Appeals Tribunal and the Information Commissioner). Both versions provide a non-exhaustive list of public interest factors against disclosure.
  3. The FOI Officer refers to [6.91] in a footnote on page 6 of the decision. This is a reference to [6.91] of version 1.3 of Part 6 of the FOI Guidelines. That paragraph is relevantly identical to [6.81] of version 1.4 of Part 6 of the FOI Guidelines, apart from updates to cross referencing other parts of the FOI Guidelines.
  4. The FOI Officer refers to [6.143] in a footnote on page 11 of the decision. This is a reference to [6.143] of version 1.3 of Part 6 of the FOI Guidelines. That paragraph is identical to [6.138] of version 1.4 of Part 6 of the FOI Guidelines.
  5. Where the FOI Officer referred to parts of version 1.3 of Part 6 of the FOI Guidelines which were relevantly identical to version 1.4 of Part 6 of the FOI Guidelines, no error can arise.

Paragraph 5.20 of the FOI Guidelines

  1. Finally, in terms of the FOI Guidelines, the applicant takes issue with the reference to [5.20] of the FOI Guidelines in a footnote at page 6 of the decision. He asserts at AS [28] that ‘[t]he FOI Guidelines at [5.20] don’t apply to s 47E(d) of the Freedom of Information Act 1982’.

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  1. The FOI Officer refers to [5.20] in a footnote in relation to the definition of the word ‘substantial’ in the context of the explaining the phrase ‘substantial adverse effect’ found in s 47E(d) of the FOI Act. That footnote refers to [5.15], [5.17], [5.20] and [6.91] of the FOI Guidelines.
  2. Paragraph [5.20] of version 1.6 of Part 5 of the FOI Guidelines provides as follows:
    [5.20] A prejudicial effect is one which would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes. There is no need to establish a ‘substantial adverse effect’ and proof of prejudice is sufficient.
  3. Paragraph [5.20] falls within a definitional section of the FOI Guidelines intended to cover commonly used terms within Part IV of the FOI Act. Section 47E(d) falls within Part IV of the FOI Act, so those definitional terms are clearly applicable. In that sense the ground of review is misconceived.
  4. When considering the meaning of a phrase like ‘substantial adverse effect’ no issue arises from taking into account contextual matters (like the fact that the FOI Guidelines say that a ‘prejudicial effect’ does not require for there to be ‘substantial adverse effect’). No error has been demonstrated in the FOI Officer’s understanding of the meaning of that phrase (as set out in the body of the decision-record) or the manner in which the FOI Officer applied that term.
  5. Ultimately, no error arises from the reference to that part of the FOI Guidelines in the footnote of the decision-record.

Unreasonableness

  1. The applicant asserts that the decision to refuse access to Document 3 under ss 47C, 47E and 47F was unreasonable. Those assertions are not particularised.
  2. The requirement of reasonableness flows from an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably. An unreasonable exercise of power is one ‘which lacks an evident and intelligible justification’. The intelligible justification must lie within the reasons given by the decision-maker for the exercise of power.
  3. The reasons for decision clearly outline how the FOI Officer came to their conclusions for each of the statutory powers exercised. The respondent submits that there is an evident and intelligible justification for each of the conclusions.
  4. These grounds do not demonstrate error in the decision.

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Common law freedom of communication

  1. The applicant asserts that ss 47C, 47E, 47F and 93A of the FOI Act, and the FOI Guidelines impermissibly curtail ‘common law freedoms communication’. Without particulars it is manifestly unclear what this argument relates to – i.e. is it a reference to ‘freedoms communication’ available under the ‘common law’ or is it a reference to communications about ‘common law freedoms’?
  2. A beneficial interpretation of the applicant’s submissions may be that he is saying that ss 47C, 47E, 47F and 93A of the FOI Act interfere with his common law freedom of speech. However the common law does not constrain the legislative powers of the Commonwealth. Common law freedom of speech may be relevant as an aspect of statutory construction or characterisation, but given that the applicant advances no specific construction of ss 47C, 47E, 47F and 93A this issue does not arise.

The public interest in disclosing officer’s names

  1. The applicant claims at AS [37] that it is in the public interest that names of Commission officers involved in producing the 12 December 2023 response to the applicant be published or made available to the public. This appears to reflect the applicant’s general disagreement with the decision, and amounts to impermissible merits review and cannot establish jurisdictional error.
  2. The FOI Officer correctly identified that s 47F of the FOI Act would apply to personal details of staff members of the National Anti-Corruption Commission. The FOI Officer gave cogent reasons to explain why he considered that disclosure would be contrary to the public interest, including that:
    47.1. the personal information did not concern matters of significant public interest – it would not shed any light on the workings of the Commission, inform the public of the Commission’s operations or enhance scrutiny of the Commission’s decision making; but
    47.2. disclosure could reasonably be expected to prejudice the protection of staff member’s privacy and their security and public safety.

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  1. The FOI Officer determined, on balance, that the public interest factors against disclosure outweigh those in favour of disclosure. The applicant appears to disagree with the FOI Officer’s assessment due to the relative seniority of the officers, which goes only to the merits of the decision.

Constitutional grounds

  1. The applicant in his submissions makes 3 bare constitutional assertions: that each of ss 47C, 47E, 47F and s 93A (or parts thereof) of the FOI Act: (i) ‘impermissibly curtails a constitutional freedom of political communication’; (ii) ‘impermissibly circumvents a constitutional requirement of responsible government’; and (iii) (in part) ‘stands in excess of the legislative power of the Parliament’.
  2. The applicant has not further articulated these assertions. In the absence of any proper argument he cannot have overcome the presumption of the constitutionality or validity of an Act of Parliament. In Coleman v Power (2004) 220 CLR 1, Heydon J emphasised that the onus lay on the applicant to demonstrate invalidity in implied freedom of political communication cases. His Honour held (at [329]) that:
    Normally the onus of demonstrating constitutional invalidity rests on the party propounding invalidity. Nothing in the authorities suggests that that position is different where invalidity on freedom of political communication grounds is at issue. Hence the party propounding invalidity must show that the law is of so unsatisfactory a character that it must be excluded from the class of possible laws which are reasonably appropriate and adapted to serve a legitimate end.
  3. Given that the applicant has not advanced any meaningful arguments in relation to his claims of constitutional invalidity, the Court should dismiss those claims as rising no higher than mere assertion. While it is a rare case where the application of the presumption of validity alone can be determinative of the outcome, where no meaningful constitutional argument has been articulated at all, the presumption of validity has not been displaced. The challenge to validity must therefore be dismissed.
  4. The above is sufficient to dispose of the claims of constitutional invalidity. However, and in any event (i.e. if the Court were to reject the above submission), no plausible argument in support of the applicant’s assertions exists.

Freedom of political communication

  1. As to the claims of invalidity based on the implied freedom of political communication, the first question to ask would be: do the impugned laws ‘effectively burden the freedom in its terms, operation, or effect?’
  2. None of ss 47C, 47E, 47F(2), 47F(3), nor 47F(5) could be so characterised. Here it is important to recognise that the validity of those provisions (or any one of them) cannot be considered in isolation. Each of these impugned provisions is found in Part IV of the Act (‘Exempt documents’). Each has no effect but to qualify the

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operation of the statutory right of access created by Part III of the FOI Act. Without Part III, the provisions in Part IV would have no meaning or effect. They are part of a scheme.

  1. Accordingly, the first McCloy question is not to be asked of the impugned provisions as if they were stand-alone provisions. The question is rather whether the scheme that provides for a statutory right of access in Part III, as qualified or modified by the provisions, burdens the implied freedom. The answer to that question must be ‘no’.
  2. That is because there is no right to access government documents at common law. The FOI Act provides legal entitlements beyond what would otherwise exist. In circumstances where there is no common law right to governmental documents and where Parliament has chosen to confer a qualified statutory entitlement to documents there cannot be said to amount to any burden on political communication. Rather, the FOI Act (and in particular the statutory rights of access in Part III as qualified by the provisions impugned in this case) amounts to an enhancement of political communication.
  3. To put it another way, on the hypothesis that ss 47C, 47E, 47F(2), 47F(3), 47F(5) were invalid, it was plainly not ‘the expressed will of the legislature that the whole or any part of the rest of the intended operation of the enactment should take effect by itself as a law of the Commonwealth’. That is, it was no part of the intention of the legislature that there be a statutory right of access to documents that is not subject to the qualifications expressed in Part IV (including in the impugned provisions). As the Attorney-General explained on the introduction of the Freedom of Information Bill 1981 in the Senate on 2 April 1981, while the Bill created a right to access, that right was limited (underlining added):
    [T]he Bill creates a general right of access to official information in documentary form in the possession of Ministers, departments and public authorities. This general right of access must, of course, be limited. The limitations are required for the protection of essential public interests, for the protection of the private and business affairs of persons in respect of whom information collected and held by departments and public authorities, and for the proper conduct of public business by the government.
  4. It follows that if significant provisions of Part IV were to fall, the likely result would be that the statutory right of access in Part III would fall with it. The result would be that the applicant would have no statutory right of access to documents at all under the

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FOI Act. This illustrates how the provisions in question operate as part of a scheme that enhances, not burdens, political communication.

  1. Nor can s 93A be said to burden political communication. A provision that authorises the Information Commissioner merely to issue guidelines for the purposes of the FOI Act cannot be said to burden political communication; a fortiori where those guidelines are non-binding.
  2. If, contrary to the above, the Court were to answer the first McCloy question in favour of the applicant (in relation to any of the impugned provisions), the application of the remaining McCloy questions would be resolved in favour of validity, essentially for the reasons given by the Attorney-General in the passage quoted at [57] above.

Circumvents the requirement for responsible government

  1. The applicant also asserts that ss 47E and 47F(3) and 47F(5) of the FOI Act and s 93A (together with the FOI Guidelines) impermissibly circumvent a constitutional requirement of responsible government.
  2. The respondent finds it difficult, based on the pleadings and the applicant’s submissions, to conceptualise the matters being agitated by the applicant. The bare assertion made by the applicant cannot displace the presumption of legislative validity. Should the applicant articulate his position in more detail, the respondent would seek an opportunity to address the Court in further detail.
  3. Suffice to say for present purposes that any implied limitation—to the effect that Parliament is not able to enact a law that confers a qualified statutory right to access to governmental documents—must, like any implied limitation on legislative power, be securely based in the text and structure of the Constitution. The High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 528 identified the following provisions of the Constitution as those which either assume or provide for ‘responsible government’: 6, 49, 62, 64, and 83. There is nothing in those provisions, whether considered textually or structurally, that creates an implication of the kind that would be required to support the applicant’s bare assertion of invalidity.

In excess of legislative power

  1. Finally, the applicant asserts that ss 47C(1), 47E, 47F(1) of the FOI Act ‘must be read to exclude Document 3’ or they ‘stand in excess of the legislative power of Parliament’. Further, s 93A is said to stand in excess of that power. Let it be assumed that this assertion is separate and distinct from the assertion of invalidity on the bases already discussed, i.e. let it be assumed that the assertion is that these provisions are not able to be characterised as laws with respect to any available head of Commonwealth legislative power.

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  1. Again, without being able to respond in any detail to the applicant’s submissions given their lack of particulars, the respondent notes that the Commonwealth is able to disclose documents in its possession in the exercise of its executive power – document disclosure, or withholding from disclosure, or making Guidelines governing the disclosure or non-disclosure of documents, being matters which form part of the ordinary and well-recognised functions of government. The constitutional basis for the provisions of FOI Act may therefore be found (at the least, but sufficiently for present purposes):
    65.1. as an incident of the power to make laws in relation to establishment and operation of the various Commonwealth departments, agencies, and statutory authorities, themselves. (The High Court has noted that the establishment of the Commonwealth as a body politic also gave rise to certain implied powers and that ‘…the implied powers include a power for the regulation and supervision of the polity’s own activities); and / or
    65.2. in s 51(xxxix).

Relief sought by the Applicant
The Court should not grant relief sought by the Applicant

  1. The applicant seeks orders from the Court compelling the respondent to give him a copy of Document 3 either by a writ of quo warranto or a writ of mandamus.
  2. A writ of quo warranto merely requires a decision-maker to identify the authority by which they exercise of power or hold an office. The writ would require the disclosure of Document 3.
  3. If the Court were to find that there was a jurisdictional error in the decision of the respondent then the appropriate course would be to issue writs in the nature of certiorari quashing the decision and a writ in the nature of mandamus requiring the respondent to make the decision again accordingly to law. A writ of mandamus should not issue to compel production of Document 3 – this would, in effect, be a grant of the extraordinary writ of peremptory mandamus. Peremptory mandamus should only issue if the Court were satisfied that no other decision could be made by the respondent apart from to issue Document 3 without redactions. The applicant has clearly failed to demonstrate that this form of the writ of mandamus should issue.

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Materiality

  1. Even if the Court were satisfied that there was some error in the Decision, the respondent submits that there are three independent bases not to disclose Document 3, being the application of ss 47C, 47E(d) and 47F. The Court would need to be satisfied that any error infected each part of the decision before concluding that a writ in the nature of certiorari should issue.

The Court should not otherwise exercise its discretion to grant any relief

  1. The respondent submits that the Court should exercise its discretion to refuse relief for the following reasons. If would be open to the Court to make a preliminary assessment as to whether relief should be refused (i.e. before assessing the merits) and to dispose of the application on that basis alone.

Discretionary reason to refuse relief one: utility

  1. On 20 November 2024 the respondent provided a copy of Document 3 to the applicant. The version of Document 3 contained redactions over (i) the surnames and contact details of officers of the Commission and (ii) disclosures to the Commission made by third parties (unrelated to the applicant’s disclosure).
  2. The respondent submits that the application has no further utility given that the applicant now has access to Document 3. While there are redactions in the document disclosed, the applicant could not reasonably expect to obtain a better result if the matter were remitted (although of course a fresh decision-maker would re-exercise the relevant powers were the matter to be remitted for consideration).The Court may refuse to grant relief where no useful result could ensue. The respondent contends that there is no utility in the relief sought, and relief should be refused and the application dismissed.

Discretionary reason to refuse relief two: a more convenient forum exists

  1. The judicial review jurisdiction is generally not exercised where there is an alternative forum to pursue merits review, and that is displaced only in ‘exceptional circumstances’.
  2. Reasons for that approach include that it:

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74.1. recognises and gives effect to the legislative scheme provided by Parliament,
74.2. affords a proper place to a specialised tribunal which may have an advantage in ready knowledge of developments in jurisprudence,
74.3. allows the exhaustion of factual issues which may be relevant to the proceedings,
74.4. prevents a Court, in exercising supervisory jurisdiction, from intervening prematurely where the decision is a step in a complex administrative process and a decision ‘which, in itself, is not finally determinative’,
74.5. recognises the pressure of business of the courts and conserves the discretionary and exceptional remedies provided by the prerogative writs for cases where no other remedy exists.

  1. The applicant has a more satisfactory and convenient remedy, being exercise of his right under s 54L of the FOI Act to make an application for review by the Information Commissioner of the Decision. The applicant was notified of this avenue for review when he was sent the decision and immediately prior to the first case management hearing. Despite these notifications, the applicant did not make an application to the Information Commissioner in time; although the applicant may still apply under s 54T of the FOI Act for an extension of time to make a review application to the Information Commissioner.
  2. Moreover, if the Information Commission made a decision not to review the decision or made a decision on the access request, those decisions would be reviewable by the Administrative Review Tribunal. If the applicant were to raise questions about the constitutional validity of the FOI Act in that forum, the Tribunal can form an opinion about whether the relevant legislation is constitutionally valid.
  3. Accordingly, in circumstances in which the applicant has unexercised rights of merits review, the respondent submits that the Court should exercise its discretion to refuse relief.

Costs

  1. The applicant makes various assertions which seem to support the proposition that the respondent should pay the applicant’s costs regardless of whether the applicant succeeds, including that this is a test case in the public interest.

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  1. A test case in the public interest is one that focuses on the curial interpretation of a law that, upon the court pronouncing on it, is likely to benefit a considerable number of others who are consequently left in less doubt as to their legal position. The threshold is high. To establish whether a case is in the public interest requires an objective assessment of the character of the pleadings.
  2. The respondent submits that the character of the application has not been to establish a principle of law, but rather pursue the applicant’s private interests in obtaining a copy of Document 3. It is not a test case simply because the outcome may clarify the law for the benefit of others in the community. As pleaded, this proceeding does not meet that threshold.
  3. In relation to the applicant’s request for indemnity costs, the respondent opposes any indemnity costs order. This is not a case exhibiting any special or unusual features or circumstances and nor has the respondent’s conduct in connection with the litigation been unlawful as alleged.
  4. Costs should be awarded on the usual basis of party/party costs following the event.

PART V CONCLUSION

  1. For the reasons above, the application should be dismissed. The applicant should pay the respondent’s costs of the proceeding on the usual basis that costs follow the event.
  2. The respondent consented to this matter being heard and determined on the papers at the case management hearing on 20 September 2024, prior to the applicant seeking to expand his case through his written submissions. Should the Court consider it was necessary to hear from the parties prior to determining the matter, the respondent would be willing to appear at any final hearing of the matter.

Date: 22 November 2024

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