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Part 5 — Exemptions (version 1.1)

Archived Document — This document is no longer in use. Read the current FOI guidelines.

Version 1.1, October 2011

On this page

  1. Introduction
  2. Documents exempt under Part IV
  3. Commonly used terms
    1. Could reasonably be expected to
    2. Substantial adverse effect
    3. Prejudice
  4. Documents affecting national security, defence or international relations (s 33)
    1. Reasonably expected
    2. Damage
    3. Security of the Commonwealth
    4. Defence of the Commonwealth
    5. International relations
    6. The mosaic theory
    7. Information communicated in confidence
    8. Extended processing period for consultation
    9. Refusal to confirm or deny existence of a document
    10. Evidence from Inspector-General of Intelligence and Security
  5. Cabinet documents (s 34)
    1. Documents included in exemption
    2. Documents excluded from exemption
    3. Documents created for submission to Cabinet
    4. Official record of the Cabinet
    5. Cabinet briefings
    6. Draft Cabinet documents
    7. Copies and extracts
    8. Documents disclosing a deliberation or decision of Cabinet
    9. Purely factual material
  6. Documents affecting law enforcement and public safety (s 37)
    1. Reasonable expectation
    2. Investigation of a breach of law
    3. Disclosure of a confidential source
    4. Scope of confidentiality
    5. Enforcement or administration of the law
    6. Disclosure of identity
    7. Endanger the life or physical safety of any person
    8. Prejudice to a fair or impartial trial
    9. Prejudice to law enforcement methods and procedures
    10. Protection of public safety
    11. Withholding information about the existence of documents
  7. Documents to which secrecy provisions apply (s 38)
  8. Documents subject to legal professional privilege (s 42)
    1. Elements of legal professional privilege
    2. Legal adviser-client relationship, independence and government lawyers
    3. For the purpose of giving or receiving legal advice
    4. Confidentiality
    5. Waiver of privilege
    6. The ‘real harm’ test
    7. Copies or summary records
    8. Exception for operational information
    9. Severance
  9. Documents containing material obtained in confidence (s 45)
    1. Breach of confidence
    2. Specifically identified
    3. Quality of confidentiality
    4. Mutual understanding of confidence
    5. Unauthorised disclosure or threatened disclosure
    6. Detriment
    7. Absence of public policy defence
    8. A document to which s 47C(1) applies
  10. Documents whose disclosure would be in contempt of the Parliament or in contempt of court (s 46)
    1. Apart from this Act
    2. Contempt of court
    3. Contrary to an order or direction
    4. Infringe the privileges of Parliament
  11. Documents disclosing trade secrets or commercially valuable information (s 47)
    1. Trade secrets
    2. Information having a commercial value
    3. Consultation
  12. Electoral rolls and related documents (s 47A)
  13. Footnotes

Introduction

5.1 Where an informal request for a document has been made and any required charges have been paid, an agency or minister must give access to the document unless the document at that time is an exempt document (s 11A). An exempt document is:

  1. a document of an agency which is exempt from the operation of the Act in whole or in part (see Part 2 of these Guidelines)
  2. an official document of a minister that contains some matter not relating to the affairs of an agency or a Department of State (see Part 2 of these Guidelines), or
  3. exempt for the purposes of Part IV of the FOI Act – that is, it meets the criteria for an exemption provision (s 4(1)).

5.2 An agency or minister can withhold access to a document under Part IV only if the document is exempt at the time the access request is determined. A document that was exempt at one point in time may not necessarily be exempt at a later time because circumstances have changed.

5.3 A ‘document’ includes any part of a document that is relevant to the terms of the FOI request. Consequently, a decision maker should consider whether it is practicable to delete exempt material and provide the balance to the applicant. If it is practicable to delete the exempt material and retain a copy of a meaningful non-exempt edited copy to provide to the applicant, an agency or minister must do so (s 22).

5.4 The decision maker must provide a statement of reasons under s 26 if any aspect of an FOI request is refused or if access is deferred (see Part 8 of these Guidelines).

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Documents exempt under Part IV

5.5 Exempt documents under Part IV of the FOI Act fall into two categories:

  • exempt under Division 2
  • conditionally exempt under Division 3, where access to the document must be given unless disclosure would, on balance, be contrary to the public interest (s 11A(5)).

5.6 Exempt documents in Division 2 of Part IV are:

  • documents affecting national security, defence or international relations (s 33)
  • Cabinet documents (s 34)
  • documents affecting enforcement of law and protection of public safety (s 37)
  • documents to which secrecy provisions of enactments apply (s 38)
  • documents subject to legal professional privilege (s 42)
  • documents containing material obtained in confidence (s 45)
  • documents disclosure of which would be contempt of Parliament or contempt of court (s 46)
  • documents disclosing trade secrets or commercially valuable information (s 47)
  • electoral rolls and related documents (s 47A).

5.7 The exemptions in Division 2 of Part IV are not subject to an overriding public interest test. If a document meets the criteria to establish a particular exemption, it is exempt. There is no additional obligation to weigh competing public interests to determine if the document should be released. However, agencies and ministers can always provide access to a document where the law permits, even if the document is exempt (s 3A). The Information Commissioner encourages agencies and ministers to consider in each case whether an exempt document can be released without causing significant harm and to allow access to documents wherever possible.

5.8 Documents which are conditionally exempt under Division 3 relate to the following categories:

  • Commonwealth-State relations (s 47B)
  • deliberative processes (s 47C)
  • financial or property interests of the Commonwealth (s 47D)
  • certain operations of agencies (s 47E)
  • personal privacy (s 47F)
  • business (other than documents to which s 47 applies) (s 47G)
  • research (s 47H)
  • the economy (s 47J).

5.9 Where a document is assessed as conditionally exempt, the agency or minister must give access to it unless in the circumstances access would, on balance, be contrary to the public interest (s 11A(5)). The public interest test is weighted in favour of giving access to documents so that the public interest in disclosure remains at the forefront of decision making. The statement of reasons for the decision must include the public interest factors taken into account (s 26(1)(aa)). Further guidance on conditional exemptions and the public interest test is in Part 6.

5.10 Table 1 is extracted from s 31A of the FOI Act and summarises how the FOI Act applies to exempt and conditionally exempt documents.

Table 1: Access to exempt and conditionally exempt documents

Item

If ...

then ...

because of ...

1

a document is an exempt document under Division 2 (exemptions) or under paragraph (b) or (c) of the definition of exempt document in s 4(1) (s 7 or an official document of a minister that contains some matter not relating to agency affairs)

access to the document is not required to be given

s 11A(4)

2

a document is a conditionally exempt document under Division 3 (public interest conditional exemptions)

access to the document is required to be given, unless it would be contrary to the public interest

s 11A(5) (see also s 11B (public interest factors)

3

a document is an exempt document as mentioned in item 1, and also a conditionally exempt document under Division 3

access to the document is not required to be given

ss 11A(4),11A(6), and 32 (interpretation)

4

access to a document is refused because it contains exempt matter, and the exempt matter can be deleted

(a) an edited copy deleting the exempt matter must be prepared (if practicable); and (b) access to the edited copy must be given

s 22

5

a document is an exempt document because of any provision of this Act

access to the document may be given apart from under this Act

s 3A (objects – information or documents otherwise accessible)

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Commonly used terms

5.11 Certain terms are common to exemptions and conditional exemptions. They are explained below.

Could reasonably be expected to

5.12 The test ‘could reasonably be expected’ appears in the following exemptions and conditional exemptions:

  • national security, defence or international relations(s 33(a))
  • public safety and law enforcement (s 37(1), (2))
  • commercially valuable information (s 47(1)(b))
  • Commonwealth-State relations (s 47B)
  • certain operations of an agency (ss 47E(e)(d))
  • business affairs(s 47G(1)(a), (b)).

5.13 The test requires the decision maker to assess the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of the documents.

5.14 The use of the word ‘could’ in this qualification is less stringent than ‘would’, and so requires no more than a degree of reasonableness being applied to deciding whether disclosure would cause the consequences. Therefore, the reasonable expectation refers to activities that might reasonably be expected to have occurred, be presently occurring, or could occur in the future.[1]

5.15 In the context of s 37, decided cases have found that the mere risk or mere possibility of prejudice does not qualify as a reasonable expectation.[2]

Substantial adverse effect

5.16 Several exemptions[3] require the decision maker to assess the impact and scale of an expected effect or event that would follow disclosure of the document. That is, the expected effect needs to be both ‘substantial’ and ‘adverse’.

5.17 The term ‘substantial adverse effect’broadly means ‘an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person’.[4] The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal’.[5]

5.18 A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons in order to show their deliberations in determining the extent of the expected effect. Of course, it may sometimes be necessary to use general terms to avoid making the Statement of Reasons itself an ‘exempt document’ (s 26(2)).

Prejudice

5.19 Some exemptions[6] and conditional exemptions[7] require the decision maker to assess whether the potential disclosure of a document would be prejudicial. The FOI Act does not define prejudice. The Macquarie Dictionary definition of ‘prejudice’ requires:

  1. disadvantage resulting from some judgement or action of another
  2. resulting injury or detriment.

5.20 A prejudicial effect is one which would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes. The expected outcome does not need to have an impact that is ‘substantial and adverse’.[8]

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Documents affecting national security, defence or international relations (s 33)

5.21 Section 33 exempts documents that affect Australia’s national security, defence or international relations. The exemption comprises two distinct categories of documents:

  1. documents which, if disclosed, would, or could reasonably be expected to, cause damage to the Commonwealth’s security, defence or international relations
  2. documents that would divulge information communicated in confidence to the Commonwealth by a foreign government, an agency of a foreign government or an international organisation.

5.22 In claiming the exemption, decision makers must examine the content of each document that is relevant to a request and come to a conclusion about whether disclosure of that content would cause, or could reasonably be expected to cause, the harm which the provision seeks to prevent. The context of each document is also relevant because, while the information in the document may not itself cause harm, in combination with other known information it may contribute to a complete picture which results in harm (the ‘mosaic theory’). See paragraphs 5.33–5.34 below for more detail on the mosaic theory.

5.23 The classification markings on a document (such as ‘secret’ or ‘confidential’) are not of themselves conclusive of whether the exemption applies (see also paragraph 5.35 below in relation to information communicated in confidence).

Reasonably expected

5.24 The term ‘reasonably expected’ is explained in greater detail in paragraph 5.12 above. There must be ‘real’ and ‘substantial’ grounds for expecting the damage to occur which can be supported by evidence or reasoning.[9] A mere allegation or mere possibility of damage is insufficient to meet the ‘reasonable expectation’ test.

Damage

5.25 ‘Damage’ for the purposes of this exemption is not confined to loss or damage in monetary terms. The relevant damage may be intangible, such as inhibiting future negotiations between the Australian Government and a foreign government, or the future flow of confidential information from a foreign government or agency. In determining whether damage was likely to result from disclosure of the document(s) in question, a decision maker could have regard to the relationships between individuals representing respective governments.[10] A dispute between individuals may have sufficient ramifications to affect relations between governments. It is not a necessary consequence in all cases but a matter of degree to be determined on the facts of each particular case.[11]

Security of the Commonwealth

5.26 The term ‘security of the Commonwealth’ broadly refers to:

  1. the protection of Australia and its population from activities that are hostile to, or subversive of, the Commonwealth’s interests
  2. the security of any communications system or cryptographic system of any country used for defence or the conduct of the Commonwealth’s international relations (see definition in s 4(5)).

5.27 A decision maker must be satisfied that damage to the security of the Commonwealth would be caused by disclosure of the information under consideration. The claim has been upheld in the following situations:

  1. If the release of a document would prevent a security organisation from obtaining information on those engaged in espionage, it could reasonably be expected to cause damage to national security if such a document were released.[12]
  2. The disclosure of a defence instruction on the Army’s tactical response to terrorism and procedures for assistance in dealing with terrorism would pose a significant risk to security by revealing Australia’s tactics and capabilities.[13]
  3. Documents revealing, or which would assist in revealing, the identity of an ASIO informant were held exempt under a similar provision in the Archives Act.[14]

Defence of the Commonwealth

5.28 The Act does not define ‘defence of the Commonwealth’. Previous AAT decisions indicate that the term includes:

  • meeting Australia’s international obligations
  • ensuring the proper conduct of international defence relations
  • deterring and preventing foreign incursions into Australian territory
  • protecting the Defence Force from hindrance or activities which would prejudice its effectiveness.[15]

5.29 Damage to the defence of the Commonwealth is not necessarily confined to monetary damage (see paragraph 5.25 above). However, in all cases, there must be evidence that the release of the information in question will be likely to cause the damage claimed.

International relations

5.30 The phrase ‘international relations’ has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them.[16] The exemption is not confined to relations at the formal diplomatic or ministerial level. It also covers relations between government agencies.[17]

5.31 The mere fact that a government has expressed concern about a disclosure is not enough to satisfy the exemption, but the phrase does encompass intangible damage, such as loss of trust and confidence in the Australian Government or one of its agencies.[18]The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship.[19] There must also be real and substantial grounds for the conclusion that are supported by evidence.[20] These grounds are not fixed in advance, but vary according to the circumstances of each case.

5.32 For example, the disclosure of a document may diminish the confidence which another country would have in Australia as a reliable recipient of its confidential information, making that country or its agencies less willing to cooperate with Australian agencies in future.[21] On the other hand, the disclosure of ordinary business communications between health regulatory agencies revealing no more than the fact of consultation will not, of itself, destroy trust and confidence between agencies.[22]

The mosaic theory

5.33 Normally when assessing the potential harm in releasing a document, a decision maker looks at the contents of the document in question. But when evaluating potential harmful effects of disclosing documents that affect Australia’s national security, defence or international relations, decision makers may take into account the intelligence technique usually known as the ‘mosaic theory’. This theory holds that individually harmless pieces of information, when combined with other pieces, can generate a composite – a mosaic – that can damage Australia’s national security, defence or international relations.[23] Therefore, decision makers may need to consider other sources of information when considering this exemption.

5.34 The mosaic theory does not relieve decision makers from evaluating whether there are real and substantial grounds for the expectation that the claimed effects will result from disclosure. It is a question of fact whether the disclosure of the information, alone or in conjunction with other material, could reasonably be expected to enable a person to ascertain the identity or existence of a confidential source.[24]This is not always simple. For example, in Re Slater and Cox[25] the evidence that persuaded the AAT of a ‘mosaic effect’ claim was an analysis of 22 thirty-five-year-old documents.

Information communicated in confidence

5.35 Section 33(b) exempts information communicated in confidence to the Australian Government or agency by another government or one of its authorities, or by an international organisation. One example is the confidential exchange of police information or information received from a foreign defence force agency.

5.36 The test is whether information is communicated in confidence between the communicator and the agency to which the communication is made – it is not a matter of determining whether the information is of itself confidential in nature.[26] Information is communicated in confidence by or on behalf of another government or authority, if it was communicated and received under an express or implied understanding that the communication would be kept confidential.[27] Whether the information is, in fact, confidential in character and whether it was communicated in circumstances importing an obligation of confidence are relevant considerations. They may assist the decision maker to determine whether, on the balance of probabilities, information was communicated in confidence.[28]

5.37 The relevant time for the test of confidentiality is the time of communication of the information, not the time of the request for access. It is irrelevant for the purposes of the exemption that the foreign government or agency may have since reviewed the status of the document and it is no longer confidential. The document will still be exempt.[29]

5.38 An agreement to treat documents as confidential does not need to be formal. A general understanding that communications of a particular nature will be treated in confidence will suffice. The understanding of confidentiality may be inferred from the circumstances in which the communication occurred, including the relationship between the parties and the nature of the information communicated.[30] To avoid doubt, s 4(10) confirms that the exemption applies to any documents communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information between the Australian Government and a foreign government (and their respective agencies) or an international organisation.

5.39 Classification markings on a document (such as secret or confidential) are not in themselves conclusive of confidential communication. An agency still needs to produce evidence supporting the claim that information was communicated in confidence by a foreign entity. The decision maker must make an independent assessment of that claim in light of the available evidence. Similarly, even where a foreign government or agency has identified a document as secret or confidential, the decision maker is still required to make an independent assessment that the information was communicated in confidence.[31]

5.40 Because information need only be communicated in confidence, if the information has since been published in the public domain, an agency should consult the foreign source of the document noting that fact (see paragraphs 5.41–5.42 below).

Extended processing period for consultation

5.41 The standard statutory period for making a decision on an FOI request is 30 days (see Part 3 of these Guidelines). Where a document may be exempt under ss 33(a)(iii) or 33(b), a decision maker may decide to extend the time frame for making a decision by 30 days to consult a foreign government or authority or an international organisation to assist them in deciding whether the document is exempt (s 15(7), (8)). This decision must be in writing and must be notified to the applicant as soon as practicable (s 15(7), (8)(b)).

5.42 The form of consultation with a foreign government, authority or organisation will depend on the nature of the relationship between the Australian agency and the foreign entity. For example, there may be agreed procedures for consultation or informal communication between officers may suffice. If the agency is not the primary point of contact for the matter requiring consultation, it should seek the assistance of the agency with that responsibility. In some cases, the appropriate action may be to transfer the request, either in full or in part to that other agency. A decision maker should seek information relevant to establishing whether the grounds for exemption are met. This information may be used to support and explain a claim for exemption in a statement of reasons to the applicant. In all cases, the person consulted should have authority to speak for the foreign entity.

Refusal to confirm or deny existence of a document

5.43 In some instances, the act of confirming or denying whether a document exists can cause harm. For example, knowing that an agency possesses a copy of a particular document, coupled with the knowledge that the document could originate from only one source, might disclose a confidential source resulting in the effective loss of important information.

5.44 Section 25 of the FOI Act provides that agencies do not need to give information about the existence of documents in another document, such as a s 26 notice, if including that information would cause the latter to be exempt on the grounds set out in s 33 (or s 37(1) – see paragraphs 5.71–5.107 below for further guidance on the application of s 37(1)). The agency may instead give the applicant notice in writing that it neither confirms nor denies the existence of the document, but if the document existed, it would be exempt under s 33.

5.45 As use of this section has the effect of refusing a request for access to a document, resort to s 25 should be reserved strictly for cases where the circumstances of the request require it.

5.46 Section 26(2) also provides that there is no requirement to include information in a document that would make that document exempt (see Part 8 of these Guidelines).[32]

Evidence from Inspector-General of Intelligence and Security

5.47 Where the Information Commissioner is conducting a review of a decision refusing access to a document on the grounds of exemption under s 33, before deciding that the document is not exempt, the Information Commissioner must ask the IGIS to give evidence on the criteria under s 33 (ss 55ZA–55ZD). This provision is designed to assist the Information Commissioner by giving access to independent expert advice from the IGIS to determine whether damage could result from disclosure of a document which is claimed to be exempt under the national security exemption, or whether giving access would divulge information communicated in confidence. For more information on Information Commissioner reviews, see Part 10 of these Guidelines.

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Cabinet documents (s 34)

5.48 The Cabinet exemption in s 34 of the FOI Act is designed to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility (fundamental to the Cabinet system) is not undermined. Like the other exemptions in Division 2 of Part IV, this exemption is not subject to the public interest test. The public interest is implicit in the purpose of the exemption itself. The 2010 amendments to the FOI Act introduced some changes to the scope of this exemption.

5.49 ‘Cabinet’ for s 34 purposes means the Cabinet and Cabinet committees (see the definition of Cabinet in s 4(1)). It does not include informal meetings of ministers outside the Cabinet. In any case of doubt whether a body is a Cabinet committee, the Department of the Prime Minister and Cabinet should be consulted.

5.50 Agencies should note that the Cabinet Handbook requires agencies to consult the Department of the Prime Minister and Cabinet on any Cabinet-related material identified as being within the scope of an FOI request. As the custodian of Cabinet records (current and former governments), the Secretary of the Department of the Prime Minister and Cabinet is required to provide evidence in support of Cabinet-related exemptions made under the FOI Act.

Documents included in exemption

5.51 The Cabinet exemption applies to the following classes of documents:

  1. Cabinet submissions that:
    1. have been submitted to Cabinet; or
    2. are proposed for submission to Cabinet; or
    3. were proposed to be submitted but were in fact never submitted and were brought into existence for the dominant purpose of submission for the consideration of Cabinet (s 34(1)(a))
  2. official records of the Cabinet (s 34(1)(b))
  3. documents prepared for the dominant purpose of briefing a minister on a Cabinet submission (s 34(1)(c))
  4. drafts of a Cabinet submission, official records of the Cabinet or a briefing prepared for a minister on a Cabinet submission (s 34(1)(d)).

5.52 The exemption also applies to full or partial copies of the categories of documents listed in paragraph 5.51 above as well as a document that contains an extract from those categories (s 34(2)).

5.53 Any document containing information which, if disclosed, would reveal Cabinet deliberations or a decision is exempt unless the deliberation or decision has been officially disclosed (s 34(3)). The words ‘officially disclosed’ are not defined in the FOI Act and should be given their ordinary meaning. A key element is the official character of the disclosure. Disclosure will commonly be as a result of specific authorisation by the Cabinet itself, and may be undertaken by the Prime Minister, the Cabinet Secretary or a responsible minister. An announcement made in confidence to a limited audience is not an official disclosure for this purpose.

5.54 If a document falls within one of the categories in ss 34(1), 34(2) or 34(3) it qualifies for exemption. Agencies need not consider what harm might flow from disclosure.

Documents excluded from exemption

5.55 There are three exceptions to the general Cabinet exemption rules:

  • a document is not exempt merely because it is attached to a Cabinet submission, record or briefing (s 34(4))
  • the document by which a Cabinet decision is officially published is not itself exempt (s 34(5))
  • purely factual material in a Cabinet submission, record or briefing is not exempt unless its disclosure would reveal a Cabinet deliberation or decision and the decision has not been officially disclosed (s 34(6)).

5.56 Cabinet notebooks are expressly excluded from the operation of the FOI Act (see definition of ‘document’ in s 4(1)).

Documents created for submission to Cabinet

5.57 To be exempt under s 34(1)(a), a document must have been created for the dominant purpose of being submitted for Cabinet’s consideration and must have actually been submitted or be proposed by a sponsoring minister to be submitted. Documents in this class may be Cabinet submissions or attachments to Cabinet submissions.

5.58 The inclusion of the ‘dominant purpose’ test was an important change in the 2010 amendments to the FOI Act. Section 34(4) introduces a limit on the Cabinet exemption by making it clear that a document is not exempt only because it is attached to a Cabinet submission. For example, if, at the time a report is brought into existence there was no purpose of submitting it to Cabinet, but it is later decided to submit it to Cabinet,the report will not be covered by s 34(1)(a) because it will not have been brought into existence for the dominant purpose of submission to the Cabinet. It may, however, still be exempt under s 34(3) if its disclosure would reveal an unpublished Cabinet deliberation or decision.

5.59 The use of the word ‘consideration’ rather than ‘deliberation’ indicates that the Cabinet exemption extends to a document prepared simply to inform Cabinet, the contents of which are intended merely to be noted by Cabinet.[33]

5.60 Whether a document has been prepared for the dominant purpose of submission to Cabinet is a question of fact. The relevant time for determining the purpose is the time the document was created.[34]

Official record of the Cabinet

5.61 The term ‘official record of the Cabinet’ in s 34(1)(b) is not defined. The document must be an official record of the Cabinet itself, such as a Cabinet Minute. A document must relate, tell or set down matters concerning Cabinet and its functions in a form that is meant to preserve that relating, telling or setting down for an appreciable time.[35] Agencies should consult the FOI Coordinator of the Department of the Prime Minister and Cabinet when deciding whether a document is an official record of the Cabinet (see paragraph 5.50).

Cabinet briefings

5.62 A document that is brought into existence for the dominant purpose of briefing a minister on a submission to Cabinet within the meaning of s 34(1)(a) is an exempt document (s 34(1)(c)). The briefing purpose must have been the dominant purpose at the time of the document’s creation.

Draft Cabinet documents

5.63 Section 34(1)(d) provides that a draft of a Cabinet submission, an official record of the Cabinet or a Cabinet briefing is exempt. ‘Draft’ is not defined.

Copies and extracts

5.64 A document is exempt from disclosure to the extent that it contains a copy or part of or an extract of a document that is, itself, exempt from disclosure for one of the reasons specified in s 34(1) (see s 34(2)). In practice, this means a document that comprises or contains a copy of, part of or an extract from a Cabinet submission, a Cabinet briefing or an official record of the Cabinet. A copy or extract should be a quotation from, or exact reproduction of, the Cabinet submission, official record of the Cabinet or the Cabinet briefing.

5.65 It is important to note that coordination comments merit special attention. Normal practice is that such comments are drafted separately from the submission to which they relate by the agencies making the comments. Agencies’ coordination comments are then incorporated into the submission which is submitted to Cabinet for consideration. The AAT has held that a document comprising a copy of coordination comments which were later incorporated into a Cabinet submission was exempt under the previous version of s 34(2) on the basis that it was an extract from the minister’s Cabinet submission.[36]

Documents disclosing a deliberation or decision of Cabinet

5.66 Section 34(3) exempts documents to the extent that their disclosure would reveal any deliberation or decision of the Cabinet unless the existence of the deliberation or decision has been officially disclosed.

5.67 ‘Deliberation’in this context has been interpreted as active debate in Cabinet, or its weighing up of alternatives, with a view to reaching a decision on a matter (but not necessarily arriving at one). In Re Toomer, Deputy President Forgie analysed earlier consideration of ‘deliberation’ and concluded:

Taking its [Cabinet’s] deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes, be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. [Cabinet’s] decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed.[37]

Purely factual material

5.68 Section 34(6) provides that, in a document to which ss 34(1), 34(2) or 34(3) applies, information is not exempt if it is purely factual material unless:

  1. the disclosure of the information would reveal any deliberation or decision of the Cabinet, and
  2. the fact of that deliberation or decision has not been officially disclosed.

5.69 Purely factual material includes material such as statistical data, surveys and factual studies. A conclusion involving opinion or judgement is not purely factual material. For example, a projection or prediction of a future event would not usually be considered purely factual.

5.70 The qualification to the ‘purely factual material’ exception to the exemption has changed from ‘officially published’ to ‘officially disclosed’. The AAT in Re Toomer considered the meaning of ‘officially published’ in the context of the exclusion of documents by which a Cabinet decision was officially published. The AAT did not specifically consider the term in the context of the predecessor of the factual material exception in s 34(6), but it is clear that the AAT contemplated publication through a document.[38]The Information Commissioner takes the view that the change in wording from ‘officially published’ to ‘officially disclosed’ reflects an intention to broaden the concept of publication to include officially sanctioned disclosure by means other than a formal document – for example, by an oral statement from a minister. It is still a requirement, however, that the disclosure results from the performance of one of the functions of the person or body responsible for disclosing it (such as the Cabinet or the responsible minister) and makes the decision generally known. An agency should consult the Department of the Prime Minister and Cabinet before releasing any Cabinet-related document (see paragraph 5.50).

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Documents affecting law enforcement and public safety (s 37)

5.71 This exemption applies to documents which, if released, would or could reasonably be expected to affect law enforcement or public safety in any of the following ways:

  • prejudice the conduct of an investigation of a breach, or possible breach, of the law
  • prejudice the conduct of an investigation of a failure, or possible failure, to comply with a taxation law
  • prejudice the enforcement, or the proper administration, of the law in a particular instance
  • reveal the existence or identity of a confidential informant, or the absence of a confidential source of information, in relation to the enforcement or administration of the law
  • endanger the life or physical safety of any person
  • prejudice the fair trial of a person, or the impartial adjudication of a particular case
  • disclose lawful methods or procedures for investigating, preventing, detecting or dealing with breaches of the law where disclosure of those methods would be reasonably likely to reduce their effectiveness
  • prejudice the maintenance or enforcement of lawful methods for the protection of public safety (see s 37(1),(2)).

5.72 For the purposes of the exemption, ‘law’ means a law of the Commonwealth or of a State or a Territory (s 37(3)). It encompasses both criminal and civil law.

5.73 Section 37 concerns the investigative or compliance activities of an agency and the enforcement or administration of the law, including the protection of public safety. It is not concerned with an agency’s own obligations to comply with the law. The exemption applies, therefore, where an agency has a function connected with investigating breaches of the law or its enforcement or administration.

5.74 To be exempt under s 37(1)(a) or 37(1)(b) the document in question should have a connection with the criminal law or the processes of upholding or enforcing civil law or administering a law.[39] This is not confined to court action or court processes, but extends to the work of agencies in administering legislative schemes and requirements, monitoring compliance, and investigating breaches. The exemption does not depend on the nature of the document or the purpose for which it was brought into existence. A document will be exempt if its disclosure would or could reasonably be expected to have one or more of the consequences set out in the categories listed in paragraph 5.71.

5.75 In applying this exemption, a decision maker should examine the circumstances surrounding the creation of the document and the possible consequences of its release. The adverse consequences need not result only from disclosure of a particular document. The decision maker may also consider whether disclosure, in combination with information already available to the applicant, would result in any of the specified consequences.

Reasonable expectation

5.76 In the context of s 37, as elsewhere in the Act, the mere risk or possibility of prejudice to an investigation is not a sufficient basis for a reasonable expectation of prejudice. However, the use of the word ‘could’ in the reasonable expectation qualification, as distinct from ‘would’, is less stringent. The reasonable expectation refers to activities that might reasonably be expected to have occurred, be presently occurring, or could occur in the future.[40]

Investigation of a breach of law

5.77 Section 37(1)(a) applies to documents only where there is a current or pending investigation and release of the document would, or could reasonably be expected to, prejudice the conduct of that investigation. Because of the phrase ‘in a particular instance’, it is not sufficient that prejudice will occur to other or future investigations: it must relate to the particular investigation at hand.[41] In other words, the exemption does not apply if the prejudice is about investigations in general.

5.78 The exemption is concerned with the conduct of an investigation. For example, it would apply where disclosure would forewarn the applicant about the direction of the investigation, as well as the evidence and resources available to the investigating body – putting the investigation in jeopardy.[42] The section will not apply if the investigation is closed or if it is being conducted by an overseas agency.[43]

5.79 Where the investigation is merely suspended or dormant rather than permanently closed, or where new information may revive an investigation, the Information Commissioner considers the exemption should apply. However, the expectation that an investigation may revive should be more than speculative or theoretical and be supported by evidence.[44]

5.80 Whether prejudice will occur is a question of fact to be determined on the evidence.[45] The fact that a document is relevant to an investigation is not, however, sufficient. If the information in the document indicated a breach of the law and was prepared in the course of, or for the purposes of, an investigation, this would be sufficient.[46]

5.81 It is clear from its terms that the exemption in s 37(1)(a) will not apply if disclosure would benefit rather than prejudice an investigation.

Disclosure of a confidential source

5.82 Section 37(1)(b) is intended to protect the identity of a confidential source of information connected with the administration or the enforcement of the law. It is the source, rather than the information, which is confidential. The exemption is not limited to particular instances in the same way as s 37(1)(a).

5.83 The exemption applies:

  • where the information in question may enable the agency responsible for enforcing or administering a law to enforce or administer it properly
  • the person who supplies that information wishes his or her identity to be known only to those who need to know it for the purpose of enforcing or administering the law[47]
  • the information was supplied on the understanding, express or implied, that the source’s identity would remain confidential.

5.84 Section 37(1)(b) can also apply to protect information which would allow the applicant to ascertain the existence or non-existence (rather than the identity) of a confidential source of information.[48]

5.85 The so-called ‘mosaic theory’ might apply in some cases (see paragraphs 5.33–5.34 above).That is, the disclosure of the information in question will lead to its being linked to already available information and thus disclose the identity of the confidential source.[49]

5.86 Section 37(2A) confirms that a person is a confidential source of information in relation to the enforcement or administration of the law if that person is receiving or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory.

Scope of confidentiality

5.87 Section 37(1)(b) protects the identity of a person who has supplied information on the understanding that their identity would remain confidential. The scope of confidentiality depends on the facts of each case.

5.88 This exemption does not apply if the FOI applicant is aware of the relationship between the agency and the person who supplied the information to the agency, and the applicant is included in the understanding of confidence between the agency and the other person. For example, the exemption did not apply to information disclosed to an agency by an FOI applicant’s financial broker who was interviewed by the agency. The applicant was considered to be included in the relationship of confidence between the broker and the agency. The AAT stated that if the applicant was not privy to the confidence, he was entitled to be.[50]

5.89 It is not essential that the confidential source provide the information under an express agreement. Often an implied undertaking of confidentiality can be made out from the circumstances of a particular case.[51] For example, the source may have supplied the information under the reasonable expectation that his or her identity would be kept confidential. In some cases, confidentiality can be inferred from the practice of the agency to receive similar types of information in confidence. For example, a telephone hotline set up to receive certain types of information from members of the public and expressly promoted as confidential. On the other hand, it is doubtful that a vague representation to people at large would be sufficient.

Enforcement or administration of the law

5.90 The phrase ‘the enforcement or the proper administration of the law’ is not confined to the enforcement or administration of statutory provisions or of the criminal law. It requires only that a document should have a connection with the criminal law or with the processes of upholding or enforcing civil law.[52]

Disclosure of identity

5.91 There must be a reasonable expectation that the contents of the documents in question will disclose the identity of the confidential source.[53] Where a person’s identity is not apparent and the information is so general that it is unlikely to lead to the identification of the source, or it could have come from any one of several sources, this element of the exemption is not satisfied.

5.92 If other disclosures already make it possible to determine who the source is, an agency or minister cannot claim this exemption. This is because the necessary quality of confidence is already lost.[54] On the other hand, the inadvertent or unauthorised leaking of a document does not diminish the quality of confidence attaching to it.[55]

5.93 The identity of a person can sometimes be ascertained from sources other than express mention in the document in question. For example, distinctive handwriting in a handwritten letter, the letterhead or the nature of the information which may only be known to a limited number of people.

Endanger the life or physical safety of any person

5.94 Under s 37(1)(c) a document is exempt if its disclosure would, or could reasonably be expected to, make a person a potential target of violence by another individual or group. This exemption requires a reasonable apprehension of danger which will turn on the facts of each particular case. For example, the disclosure of the name of an officer connected with an investigation about threats made by the applicant will not be sufficient.[56] A reasonable apprehension does not mean the risk has to be substantial, but evidence is necessary. For instance, intemperate language and previous bad behaviour, without more, does not necessarily support a reasonable apprehension.[57]

5.95 Some illustrations of the application of the exemption in the Commonwealth, Queensland and Victoria include the following:

  • A reasonable apprehension was shown in Re Ford and Child Support Registrar.[58]In this case, a third party gave extensive evidence about her fear if the FOI applicant was given access to documents. The third party had been the main prosecution witness during the FOI applicant’s criminal trial for which he was still in jail. She said he had written threatening letters to her and her friends and she was scared of him. The AAT found that there was a real and objective apprehension of harm and upheld the exemption.
  • The Queensland Information Commissioner, in considering a similar provision in Queensland’s former Freedom of Information Act 1992,[59] found that a threat of litigation against a person is not harassment which endangers a person’s life or physical safety.[60]
  • The exemption was not satisfied under the corresponding provision in the Victorian Freedom of Information Act 1982, where evidence was produced that one of several institutions where animal experiments were conducted had received a bomb threat. It was held that danger to lives or physical safety was only considered to be a possibility, not a real chance.[61]

Prejudice to a fair or impartial trial

5.96 A document which, if disclosed would, or could, reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case (s 37(2)(a)) is exempt. This aspect of the exemption operates in specific circumstances. It is necessary to identify which persons would be affected. ‘Trial’ refers to a criminal or civil proceeding before a court or tribunal. The term ‘prejudice’ implies some adverse effect from disclosure. For example, the AAT refused to accept a claim under this section where, on the facts, disclosure of the documents in question to the applicant could have actually facilitated the adjudication of the matter.[62] The fact that documents are relevant to an investigation is not of itself sufficient to justify exemption. Some causal link between the disclosure and the prejudice must be demonstrated.

Prejudice to law enforcement methods and procedures

5.97 Section 37(2)(b) exempts documents which, if released would, or could reasonably be expected to:

  • disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches of the law
  • prejudice the effectiveness of those methods or procedures.

5.98 ‘Lawful methods and procedures’are not confined to criminal investigations and can, for example, extend to taxation investigations. The exemption focuses on an agency’s methods and procedures for dealing with breaches of the law, where disclosure would, or could reasonably be expected to, adversely affect the effectiveness of those methods and procedures.

5.99 The word ‘lawful’ is intended to exclude unlawful methods and procedures, for example, methods involving illegal telephone interception or entrapment.

5.100 This exemption requires satisfaction of two factors. There must be a reasonable expectation that a document will disclose a method or procedure and a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure.[63] If the only result of disclosing the methods would be that those methods were no surprise to anyone, there could be no reasonable expectation of prejudice.

5.101 The exemption will not apply to routine techniques and procedures that are already well known to the public or documents containing general information. For example, in Re Russo the AAT rejected a s 37(2)(b) claim about the (then) Australian Securities Commission’s method of allocating priorities to matters, with the observation that disclosing such a method is on par with disclosing that the respondent uses pens, pencils, desks, chairs and filing cabinets in the investigation of possible breaches of the Corporations Law.[64] On the other hand, the AAT has held that authoritative knowledge of the particular law enforcement methods used (as opposed to the applicant’s suspicion or deduction) would assist endeavours to evade them.[65]

5.102 The exemption may apply to methods and procedures that are neither obvious nor a matter of public notoriety, even if evidence of a particular method or procedure has been given in a proceeding before the courts.[66] For example, the AAT held that disclosure of examples of acceptable reasons for refusing to vote in a compulsory election from the Australian Electoral Commission’s internal manual would reasonably be expected to prejudice the effectiveness of law enforcement procedures because people who failed to vote would be able to circumvent the procedures by submitting one of the acceptable reasons.[67] The exemption is more likely to apply where disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures.[68]

Protection of public safety

5.103 Section 37(2)(c) exempts documents if disclosure would prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

5.104 The terms ‘lawful’ and ‘prejudice’ apply to s 37(2)(c) in the same manner as described for s 37(2)(b) in paragraphs 5.97–5.102 above.

5.105 The words ‘public safety’do not extend beyond safety from violations of the law and breaches of the peace.[69] The AAT has observed that ‘public safety’ should not be confined to any particular situation, such as civil emergencies (bushfires, floods and the like) or court cases involving the enforcement of the law. The AAT also noted that considerations of public safety and lawful methods will be given much wider scope in times of war than in times of peace.[70]

5.106 Re Hocking and Department of Defence provides an example of the operation of s 37(2)(c).[71] The applicant was denied access to a portion of an army manual dealing with the tactical response to terrorism and to Army procedures to meet requests for assistance in dealing with terrorism because if the relevant section of the manual were made public, there would be a significant risk to security.

Withholding information about the existence of documents

5.107 Section 25 permits an agency to give to an FOI applicant a notice that neither confirms nor denies the existence of a document if information as to its existence would, if it were included in a document, make the document exempt under s 37(1) (see paragraphs 5.43–5.46 above).

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Documents to which secrecy provisions apply (s 38)

5.108 A document is exempt if its disclosure is prohibited under a provision of another Act (s 38(1)(a)) and either:

  • that provision is specified in Schedule 3 to the FOI Act (s 38(1)(b)(i)), or
  • s 38 expressly applies to the document or information contained in the document, by that provision, or by another provision of that or any other enactment (s 38(1)(b)(ii)).

5.109 Section 38 is intended to preserve the operation of specific secrecy provisions in other legislation, including in cases where no other exemption or conditional exemption is available under the FOI Act. The provision has not changed with the 2010 amendments. The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information. Most secrecy provisions allow disclosure in certain circumstances, such as with the applicant’s consent where the information relates to them, or where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions, to disclose the information.

5.110 The effect of s 38(1A) is to limit the use of s 38 to the terms of the particular secrecy provision involved, and the exemption is only available to the extent that the secrecy provision prohibits disclosure. Contrary to normal FOI practice, a decision maker contemplating an exemption under s 38 must consider the identity of the FOI applicant in relation to the document. This is because s 38(1A) permits disclosure of a document in cases where the prescribed secrecy provision does not prohibit disclosure to that person.[72]

5.111 Section 38 does not apply to documents in so far as they contain personal information about the applicant (s 38(2)). The exception applies only to personal information about the applicant and not to ‘mixed personal information’, that is, personal information about the applicant which, if disclosed, would also reveal personal information about another individual. If the FOI applicant’s information can be separated from any third party personal information, the FOI applicant’s information will not be exempt under s 38(1) and can be disclosed. The decision maker may consider providing access to an edited copy (s 22).

5.112 Section 38(3) contains a limited exception to s 38(2). Section 38 continues to apply in relation to a person’s own personal information where that person requests access to a document of which the disclosure is prohibited under s 503A of the Migration Act 1958, as affected by s 503D of that Act.

5.113 A number of secrecy provisions allow disclosure where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions. What is in the course of an officer’s duties should be interpreted broadly as to any routine disclosures that may be linked to those duties or functions.[73]

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5.114 Section 42(1) exempts a document that is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (LPP).

5.115 The FOI Act does not define LPP for the purposes of the exemption. To determine the application of this exemption, the decision maker needs to turn to common law concepts of privilege. The statutory test of client legal privilege under the Evidence Act 1995 is not applicable and should not be taken into account.[74] It is important that each aspect discussed below be addressed in the decision maker’s statement of reasons.

5.116 The underlying policy basis for LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. It is the purpose of the communication that is determinative.[75] The information in a document is relevant and may assist in determining the purpose of the communication, but the information in itself is not determinative.

5.117 At common law, determining whether a communication is privileged requires a consideration of:

  • whether there is a legal adviser-client relationship
  • whether the communication was for the purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation
  • whether the advice given is independent
  • whether the advice given is confidential.[76]

5.118 A legal adviser-client relationship exists where a client retains the services of a solicitor (or barrister) for the purposes of obtaining professional advice. Where the solicitor is from an external firm, the relationship is usually straight forward to establish. However, the position is not always clear where a client obtains the services of an in-house lawyer, including a government lawyer.

5.119 Section 42 may exempt communications between agencies and their legal advisers, including government legal advisers. The following factors are relevant to a claim of LPP in such circumstances:

  • legal advice given by a qualified lawyer employed by the government can be privileged
  • for the privilege to attach, the legal adviser must be acting in his/her capacity as a professional legal adviser
  • the giving of the advice must be attended by the necessary degree of independence
  • the dominant purpose test must be satisfied
  • the advice must be confidential
  • the fact that the advice arose out of a statutory duty does not preclude the privilege from applying.[77]

5.120 There must be a true solicitor-client relationship between the legal adviser and the agency before the privilege can arise. The existence of such a relationship is a question of fact to be determined on the evidence. Some relevant factors for consideration include:

  • whether, in fact, the lawyer can be said to have the necessary degree of independence
  • whether the lawyer is subject to professional standards.[78]

5.121 Having legal qualifications will not suffice in itself to establish LPP. The authorities to date prefer the view that whether an adviser holds a practising certificate is a factor to be considered but not a decisive factor.[79] Alternatively, a right to practise may be conferred by an Act (for example, ss 55B and 55E of the Judiciary Act 1903).

5.122 For the purpose of the privilege, ‘advice’ extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context.[80] However, it does not apply to internal communication that is a routine part of an agency’s administrative functions. The communication must relate to activities generally regarded as falling within a solicitor’s or barrister’s professional functions.

5.123 Whether LPP attaches to a document depends on the purpose for which the communication in the document was created. The High Court has confirmed that the common law invokes a dominant purpose test rather than a sole purpose test.[81] The communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice or for use in actual or anticipated litigation.

Confidentiality

5.124 LPP does not apply to a communication that is not confidential – that is, known only to the client or to a select class with a common interest in the matter – or where the privilege has been waived. Section 42(2) confirms that a document is not exempt if the person entitled to claim LPP waives the privilege.

5.125 LPP can extend to documents containing information that is on the public record if disclosure would reveal confidential communications concerning the seeking and giving of legal advice on the various issues covered by those documents.[82]

Waiver of privilege

5.126 LPP is the client’s privilege to assert or to waive, and the legal adviser cannot waive it except with the authority of the client.[83] In the context of an FOI request, the agency receiving the advice will usually be the ‘client’ agency that will need to decide whether to assert or waive LPP. If the privilege is asserted, that agency will need to provide evidence to establish that the document is exempt from disclosure under s 42. This will be so even if the relevant FOI request is made to a different agency.

5.127 Waiver of privilege may be express or implied. Waiver may occur, for example, in circumstances where the document in question has been widely distributed, the content of the legal advice has been disclosed, or if a person has publicly announced their reliance on the legal advice. The High Court has held that waiver of LPP will occur where the earlier disclosure is inconsistent with the confidentiality protected by the privilege.[84] This inconsistency test has been more recently affirmed by the High Court as the appropriate test for determining whether privilege has been waived.[85] It is immaterial that the client did not intend to waive privilege.

5.128 Not all disclosures to a wider group necessarily imply a waiver. If the document has been disclosed to a limited audience with a mutual interest in the contents of the document, it may not be inconsistent to continue to claim that the document is confidential and privileged. Modern organisations often work in teams and several people may need to know about privileged communications, both in the requesting client organisation and in the firm of legal advisers. Similarly, a limited disclosure of the existence and the effect of legal advice could be consistent with maintaining confidentiality in the actual terms of the advice. Whether the disclosure is inconsistent with maintaining confidentiality will depend on the circumstances of the case.[86] The Legal Services Directions 2005 issued by the Attorney-General require legal advices obtained by Australian Government agencies to be shared in particular circumstances, and complying with this requirement does not waive privilege.[87] The Legal Services Directions are available at www.ag.gov.au.

5.129 The Information Commissioner suggests that agencies should take special care in dealing with documents for which they may wish to claim LPP to avoid unintentionally waiving that privilege.

The ‘real harm’ test

5.130 Agencies should not assert LPP unless ‘real harm’ would result from disclosure of the information.[88] The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency. The ‘real harm’ test remains the appropriate test for agencies to apply when deciding to assert LPP.

Copies or summary records

5.131 Records made by officers of an agency summarising communications which are themselves privileged also attract the privilege. Privilege may also attach to a copy of an unprivileged document if the copy was made for the dominant purpose of obtaining legal advice or for use in legal proceedings.[89]

Exception for operational information

5.132 A document is not exempt under s 42(1) by reason only of the inclusion in that document of operational information of an agency (s 42(3)).

5.133 Agencies must publish their operational information under the information publication scheme established by Part II, s 8 of the FOI Act which commenced on 1 May 2011. ‘Operational information’ is information held by an agency to assist the agency to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public or any particular person or entity or class of persons or entities (s 8A). For further information see Part 13 of these Guidelines.

Severance

5.134 If only part of a document contains material which is privileged under s 42, s 22 requires disclosure of the part which is not privileged.

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Documents containing material obtained in confidence (s 45)

5.135 Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.[90]

5.136 Section 45(2) states that the exemption does not apply to documents to which s 47C(1) (deliberative processes) applies or would apply but for ss 47C(2) or 47C(3), unless the obligation of confidence is owed to persons other than the minister, ministerial staff or agency officers.

5.137 The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, s 47F (personal privacy) and s 47G (business documents).[91]

Breach of confidence

5.138 A breach of confidence is the failure of a recipient to keep information, which has been communicated in circumstances giving rise to the obligation of confidence, confidential.[92] The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.[93]

5.139 To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information:

  • it must be specifically identified
  • it must have the necessary quality of confidentiality
  • it must have been communicated and received on the basis of a mutual understanding of confidence
  • it must have been disclosed or threatened to be disclosed, without authority
  • unauthorised disclosure of the information has or will cause detriment.[94]

5.140 A breach of confidence will not arise, and the exemption will not apply, if the information to be disclosed is an ‘iniquity’ in the sense of a crime, civil wrong, or serious misdeed of public importance which ought to be disclosed to a third party with a real and direct interest in redressing such crime, wrong, or misdeed.[95]

Specifically identified

5.141 The alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms.[96]

Quality of confidentiality

5.142 For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality.[97] For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential.

5.143 The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it generally. The obligation of confidence may also only relate to a limited time period.

Mutual understanding of confidence

5.144 The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency needs to have understood and accepted an obligation of confidence.[98] The mutual understanding must have existed at the time of the communication. The most obvious example is a contractual obligation of confidence. Confidence may arise in other circumstances. For example, when a person gives information to an agency they may ask that it be kept confidential and the agency could accept the information on that basis.

5.145 It may be clear from an agency’s actions whether the agency accepted an obligation of confidence and is maintaining that obligation.[99] For example, an agency may mark a document as confidential, keep it separate from documents that are not confidential and ensure that the material is not disclosed to third parties without consent.

5.146 An obligation of confidentiality may be express or implied.[100] An express mutual understanding may occur where the person providing the information asks the agency to keep the information confidential and the agency assures them that they will. Agency practices may illustrate how an implied mutual understanding may arise. For example, if an agency has policies and procedures in place for dealing with commercial-in-confidence information and those policies and procedures are known by the business community, it may be implied that when a business provides such information to that agency it will be on the basis of confidentiality.[101]

Unauthorised disclosure or threatened disclosure

5.147 The information must have been or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised.

5.148 For example, the agency may have told the person providing the information about the people to whom the agency would usually disclose such information. The law may require disclosure to third parties in the performance of an agency’s functions, which will amount to authorised use and/or disclosure. Similarly, a person providing confidential information to an agency may specifically permit the agency to divulge the information to a limited group.

5.149 Compliance with a statutory requirement for disclosure of confidential information will not amount to an unauthorised use and will not breach confidentiality.[102]

Detriment

5.150 The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information.[103]Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The last three are applicable only to private persons and entities, but not to government.

5.151 The AAT has applied this element in numerous cases, but whether it must be established is uncertain.[104] The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused.[105] Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.[106]

Absence of public policy defence

5.152 An agency must not have an applicable ‘iniquity defence’ (that is, a defence that a higher public interest is served by disclosure). An iniquity defence arises rarely and requires that the iniquity affects either the public generally or the applicant for the information.[107]

A document to which s 47C(1) applies

5.153 The exemption in s 45(1) does not apply to information that is conditionally exempt under s 47C(1) (deliberative matter), or would be conditionally exempt but for s 47C(2) or 47C(3). For more information about the s 47C conditional exemption see Part 6 of these Guidelines.

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Documents whose disclosure would be in contempt of the Parliament or in contempt of court (s 46)

5.154 Section 46 provides that a document is exempt if public disclosure of the document would, apart from the FOI Act and any immunity of the Crown:

  1. be in contempt of court
  2. be contrary to an order or direction by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath
  3. infringe the privileges of the Parliament of the Commonwealth or a State, or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory or Norfolk Island.

5.155 Both the Parliament and courts have powers to regulate their own proceedings which have traditionally been regarded as a necessary incident to their functions as organs of the state. The protection of the privileges of Parliament and the law of contempt of court are designed to allow these institutions to regulate their proceedings and to operate effectively without interference or obstruction. Over the years Royal Commissions and tribunals have assumed similar but more limited powers.

5.156 This provision takes its scope from the principles of privilege and the general law of contempt of court. While these powers have a wide application, FOI decision makers will usually encounter them in connection with the disclosure of documents that may have been prepared for or are relevant to parliamentary or court proceedings.

Apart from this Act

5.157 The effect of the words ‘apart from this Act and any immunity of the Crown’ is to preserve the principles of parliamentary privilege and the law of contempt of court within the operation of the FOI Act. This is achieved by ensuring that the grounds for exemption (that is if disclosure of a document would have any of the effects in s 46(a), 46(b) or 46(c)), may be met notwithstanding that there may be protection from certain actions under the FOI Act (see ss 90–92), or under the protections afforded by the common law to the immunities of the Crown.

Contempt of court

5.158 A contempt of court is an action which interferes with the due administration of justice. It includes, but is not limited to, a deliberate breach of a court order. Other actions that have been found to be contempt of court include an attempt to put improper pressure on a party to court proceedings[108] or prejudging the results of proceedings, failing to produce documents as ordered by a court or destroying documents that are likely to be required for proceedings.[109]

5.159 Documents protected under s 46(a) include documents which are protected by the courts as part of their power to regulate their own proceedings. For example, a court may prohibit or limit publication of the names of parties or witnesses in litigation, or statements and evidence presented to the court. Because public disclosure of such documents would be a contempt of court, the documents would be exempt.

Contrary to an order or direction

5.160 Documents protected by s 46(b) are documents subject to an order prohibiting their publication, made by a Royal Commission, tribunal or other body having power to take evidence on oath. Royal Commissions are established for a fixed time period. However any confidentiality orders continue in effect past this period.[110]

Infringe the privileges of Parliament

5.161 The term ‘parliamentary privilege’ refers to the privileges or immunities of the Houses of the Parliament and the powers of the Houses to protect the integrity of their processes.[111]

5.162 Section 49 of the Australian Constitution gives the Australian Parliament the power to declare the ‘powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House’, and provides for the powers, privileges and immunities of the UK House of Commons to apply until a declaration by the Australian Parliament. The Parliamentary Privileges Act 1987 (the Privileges Act) is such a law, addressing some (but not all) aspects of parliamentary privilege as it applies to the Commonwealth Parliament.

5.163 Section 50 of the Australian Constitution provides that each House of the Parliament may make rules and orders with respect to the mode in which its powers, privileges and immunities may be exercised and upheld. The rules and orders most relevant to FOI decision makers are those which restrict publication or restrict publication without authority. Publication contrary to such rules may amount to an infringement of privilege, providing a basis for claiming the exemption under s 46(c). See in particular House of Representatives Standing Order 242, Senate Standing Order 37 or s 13 of the Privileges Act.[112] A decision maker should consult the relevant parliamentary committee if in any doubt, most particularly if the document is a submission or evidence given, or to be given, to a parliamentary committee which has not yet published the document.

5.164 For s 46(c) to apply where there is no rule or order preventing publication, there must be a close connection between a document and some parliamentary purpose to which it relates which could be prejudiced by disclosure. Section 46(c) is concerned with circumstances where information provided to a house or committee of Parliament has been disclosed without authority or the disclosure otherwise improperly interferes with a member of Parliament’s free performance of his or her duties as a member.

5.165 Disclosure of briefings to assist ministers in parliament – namely, question time briefs or possible parliamentary questions – would not ordinarily be expected to breach a privilege of Parliament. A document of this kind, while prepared for a minister to assist him or her in responding to potential questions raised in Parliament, is nevertheless an executive document. Unless some clear prejudice to parliamentary proceedings can be demonstrated, s 46(c) should not be claimed for briefings of this kind. Depending on the content of the briefings, other exemptions may apply.

5.166 When assessing documents that may be exempt for a limited time – for example, until a parliamentary committee either publishes or authorises publication of documentary evidence – a decision maker should consider deferring access under s 21(1)(b). For further guidance on deferring access see Part 3 of these Guidelines.

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Documents disclosing trade secrets or commercially valuable information (s 47)

5.167 Section 47 provides that a document is an exempt document if its disclosure would disclose:

  1. trade secrets, or
  2. any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

5.168 The exemption does not apply if the information in the document is:

  1. in respect of the applicant’s business or professional affairs
  2. in respect of an undertaking and the applicant is the proprietor of the undertaking or a person acting on behalf of the proprietor
  3. in respect of an organisation and the applicant is the organisation or a person acting on behalf of the organisation (s 47(2)).

5.169 These exceptions reflect that no harm would result from disclosure of documents to the individual or entity that they concern. But the exemption may apply if the information jointly concerns the trade secrets or valuable commercial information of another individual or organisation or another person’s undertaking and that information is not severable from the document.

Trade secrets

5.170 The term ‘trade secret’ is not defined in the FOI Act. The Federal Court has interpreted a trade secret as information possessed by one trader which gives that trader an advantage over its competitors while the information remains generally unknown.[113]

5.171 The Federal Court referred to the following test in considering whether information amounts to a trade secret:

  • the information is used in a trade or business
  • the owner must limit the dissemination of it or at least not encourage or permit widespread publication
  • if disclosed to a competitor, the information would be liable to cause real or significant harm to the owner of the secret.[114]

5.172 Factors that a decision maker might regard as useful guidance but not an exhaustive list of matters to be considered include:

  • the extent to which the information is known outside the business of the owner of that information
  • the extent to which the information is known by persons engaged in the owner’s business
  • measures taken by the owner to guard the secrecy of the information
  • the value of the information to the owner and to his or her competitor
  • the effort and money spent by the owner in developing the information
  • the ease or difficulty with which others might acquire or duplicate the secret.[115]

5.173 Information of a non-technical character may also amount to a trade secret. To be a trade secret, information must be capable of being put to advantageous use by someone involved in an identifiable trade.[116]

Information having a commercial value

5.174 Determining whether information is exempt under s 47(1)(b) requires a decision maker to consider two distinct questions in sequence:

  • whether the document contains information of commercial value
  • whether there is a reasonable likelihood that the value would reasonably be destroyed or diminished through disclosure.

5.175 Whether information has a commercial value, and the extent of any destruction or diminution of the value, are questions of fact for the decision maker. Information has commercial value to an agency or to another person if it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged.[117] That information may be valuable because it is important or essential to the profitability or the viability of a continuing business operation. The following factors may assist in deciding in a particular case whether information has a commercial value:

  • whether the information is known only to the person in question, or the extent to which it is known by others (information that is known to some but not all of the person’s competitors may nevertheless have commercial value)
  • whether the information confers a competitive advantage on the person against any competitors: for example, if it lowers the person’s cost of production or allows it access to markets not available to competitors
  • whether a genuine ‘arm’s-length’ buyer is prepared to pay to obtain that information[118]
  • whether the information is still current or out of date (out of date information may no longer have any value)[119]
  • whether disclosing the information would reduce the value of the business, undertaking or organisation: perhaps as reflected in the price of its shares.

5.176 The investment of time and money is not in itself a sufficient indicator of information having a commercial value. Information can be costly to produce without necessarily being worth anything.[120]

5.177 Even where information has commercial value, it is necessary to show that there is a reasonable expectation that its value will be destroyed or diminished by disclosure. This is not a necessary outcome of disclosure and a decision maker should have evidence to support a claim under this exemption.

Consultation

5.178 Where a document may disclose a trade secret or commercially valuable information belonging to an individual, organisation or undertaking other than the applicant, the decision maker must consult the relevant parties. Before making a decision to give access, s 27 requires an agency or minister to give that individual, organisation or undertaking a reasonable opportunity to make a submission that the document should be exempt from disclosure. For further guidance on third party consultation see Parts 6 and 8 of these Guidelines.

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5.179 A document is an exempt document under s 47A(2) if it is:

  1. an electoral roll
  2. a print, or a copy of a print, of an electoral roll
  3. a microfiche of an electoral roll
  4. a copy on tape or disc of an electoral roll
  5. a document that sets out particulars of only one elector and was used to prepare an electoral roll
  6. a document that is a copy of a document that sets out particulars of only one elector and was used to prepare an electoral roll
  7. a document that contains only copies of a document that sets out particulars of only one elector and was used to prepare an electoral roll
  8. a document (including a habitation index within the meaning of the Commonwealth Electoral Act) that sets out particulars of electors and was derived from an electoral roll.

5.180 The exemption extends to electoral rolls (or part of an electoral roll) of a State or Territory or a Division or Subdivision (within the meaning of the Commonwealth Electoral Act) prepared under that Act (s 47A(1)).

5.181 The exemption does not apply where an individual is seeking access to their own electoral records. That is:

  • the part of the electoral roll that sets out the particulars of the elector applying for access (s 47A(3))
  • any print, copy of a print, microfiche, tape or disk that sets out or reproduces only the particulars entered on an electoral roll in respect of the elector (s 47A(4))
  • a document that sets out only the particulars of the elector and was used to prepare an electoral roll (s 47A(5)(a))
  • a copy, with deletions, of a document that sets out particulars of only one elector and was used to prepare an electoral roll (or a copy of such a document)(s 47A(5)(b))
  • a copy, with deletions, of a document (including a habitation index within the meaning of the Commonwealth Electoral Act) that sets out particulars of electors and was derived from an electoral roll (s 47A(5)(b)).

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Footnotes

[1] Re Maksimovic and Australian Customs Service [2009] AATA 28.

[2] Re News Corporation Limited v National Companies and Securities Commission (1984) 5 ss 88.

[3] Sections 47D, 47E(c), 47E(d), 47J.

[4] See Re Thies and Department of Aviation [1986] AATA 141.

[5] See Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367.

[6] Sections 47D, 47E(c), 47E(d), 47J.

[7] Sections 47E(a), 47E(b), 47G(1)(b).

[8] See Re James and Australian National University [1984] AATA 18.

[9] See Re O’Donovan and Attorney-General’s Department [1985] AATA 330; Re Maher and Attorney-General’s Department [1986] AATA 16.

[10] See Re Laurence William Maher and Attorney-General's Department [1985] AATA 180 and Re Aldred and Department of Foreign affairs and Trade [1990] AATA 833.

[11] See Arnold v Queensland (1987) 73 ALR 607.

[12] Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.

[13] Re Hocking and Department of Defence [1987] AATA 602.

[14] Re Throssell and Australian Archives [1987] AATA 453.

[15] See for example, Re Dunn and the Department of Defence [2004] AATA 1040.

[16] Re McKnight and Australian Archives [1992] AATA 225.

[17] Re Haneef and Australian Federal Police [2009] AATA 51.

[18] Re Maher and Attorney-General’s Department [1986] AATA 16 as applied in Maksimovic and Attorney-General's Department [2008] AATA 1089.

[19] Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.

[20] Secretary, Department of Foreign Affairs v Whittaker (2005) 143 ss 15.

[21] Re Maksimovic and Attorney-General's Department [2008] AATA 1089.

[22] Re Public Interest Advocacy Centre and Department of Community Services and Health and Searle Australia Pty Ltd (No 2) [1991] AATA 723.

[23] Re McKnight and Australian Archives [1992] AATA 225.

[24] Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392.

[25] Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.

[26] Secretary, Department of the Prime Minister and Cabinet v Haneef (2010) 52 AAR 360.

[27] Re Maher and Attorney-General's Department [1986] AATA 16.

[28] Re Environment Centre NT Inc and Department of the Environment, Sport and Territories [1994] AATA 301.

[29] Secretary, Department of Foreign Affairs v Whittaker (2005) 143 ss 15.

[30] Re Maher and Attorney-General’s Department [1986] AATA 16.

[31] Re Anderson and Department of Special Minister of State [1984] AATA 478.

[32] See also Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited [2010] FCA 1442 for discussion of ss 25 and 26 in relation to decisions that do not provide information as to the existence of documents.

[33] Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301.

[34] Re Fisse and Secretary, Department of the Treasury [2008] AATA 288.

[35] Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301.

[36] Re McKinnon and Department of Prime Minister and Cabinet [2007] AATA 1969.

[37] Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301.

[38] Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301.

[39] Re Gold and Australian Federal Police and National Crime Authority [1994] AATA 382.

[40] Re Maksimovic and Australian Customs Service [2009] AATA 28.

[41] Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249.

[42] News Corporation v National Companies and Securities Commission (1984) 5 ss 88.

[43] Re Rees and Australian Federal Police [1999] AATA 444.

[44] Re Doulman and CEO of Customs [2003] AATA 883.

[45] Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249.

[46] Re O’Grady v Australian Federal Police [1983] AATA 390.

[47] Department of Health v Jephcott (1985) 8 ss 85.

[48] Re Jephcott and Department of Community Services [1986] AATA 248.

[49] Re Petroulias and Others v Commissioner of Taxation [2006] AATA 333.

[50] Re Lander and Australian Taxation Office [1985] AATA 296.

[51] Department of Health v Jephcott (1985) 8 ss 85.

[52] Re Gold and Australian Federal Police and National Crime Authority [1994] AATA 382, citing Young CJ in Accident Compensation Commission v Croom (1991) 2 VR 322, at page 324.

[53] Re Rees and Australian Federal Police [1999] AATA 252.

[54] Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437.

[55] Re Cullen and Australian Federal Police [1991] AATA 671.

[56] Re Boehm and Department of Industry Technology and Commerce [1985] AATA 60.

[57] Re Dykstra and Centrelink [2002] AATA 659.

[58] Re Ford and Child Support Registrar [2006] AATA 283.

[59] Now replaced by the Right to Information Act 2009.

[60] Re Murphy and Queensland Treasury [1995] QICmr 23.

[61] Re Binnie and Department of Agriculture and Rural Affairs (1987) VAR 361.

[62] Re O’Grady v Australian Federal Police [1983] AATA 390.

[63] Re Anderson and Australian Federal Police [1986] AATA 78.

[64] Re Russo v Australian Securities Commission [1992] AATA 228.

[65] Re Edelsten and Australian Federal Police [1985] AATA 350.

[66] Re T and Queensland Health (1994) 1 QAR 386.

[67] Re Murphy and Australian Electoral Commission [1994] AATA 149.

[68] Re Anderson and Australian Federal Police [1986] AATA 79.

[69] Re Thies and Department of Aviation (1986) [1986] AATA 141.

[70] Re Parisi and Australian Federal Police (Qld) [1987] AATA 395.

[71] Re Hocking and Department of Defence [1987] AATA 602.

[72] Re Young and Commissioner of Taxation [2008] AATA 155.

[73] Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1.

[74] Commonwealth of Australia v Dutton (2000) 102 ss 168.

[75] Mann v Carnell as restated in Comcare v Foster (2006) 42 AAR 434.

[76] Grant v Downs (1976) 135 CLR 674; Waterford v Commonwealth of Australia (1987) 163 CLR 54.

[77] Waterford v Commonwealth of Australia (1987) 163 CLR 54.

[78] Re Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317 which restates the principles of Waterford v Commonwealth of Australia (1987) 163 CLR 54.

[79] Re McKinnon and Department of Foreign Affairs [2004] AATA 1365, referring to Australian Hospital Care Pty Ltd v Duggan [1999] VSC 134. Note a contrary ruling by Crispin J in Vance v McCormack and the Commonwealth [2004] ACTSC 78, reversed on appeal but on a different point.

[80] AWB Limited v Cole (2006) 235 ALR 307.

[81] Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49.

[82] Comcare v Foster (2006) 150 ss 301.

[83] Re Haneef and the Australian Federal Police [2009] AATA 51.

[84] Mann v Carnell (1999) 201 CLR 1.

[85] Osland v Secretary to the Department of Justice [2008] HCA 37.

[86] Osland v Secretary to the Department of Justice [2008] HCA 37.

[87] Judiciary Act 1903s 55ZH(4).

[88] This view is in line with the advisory notice issued by the then Secretary of the Attorney-General’s Department dated 2 March 1986 (the ‘Brazil Direction’), following a Cabinet decision in June 1985.

[89] Re Haneef and Australian Federal Police and Commonwealth Director of Public Prosecutions [2010] AATA 514.

[90] See the Explanatory Memorandum, Freedom of Information Bill 1992; Re Kamminga and Australian National University [1992] AATA 84; dissenting judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434 at 443.

[91] See the Explanatory Memorandum, Freedom of Information Bill 1981.

[92] Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41.

[93] Re Petroulias and Others and Commissioner of Taxation [2006] AATA 333.

[94] CorrsPavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434 at 443 referring to Commonwealth v John Fairfax & Sons Ltd (1980) 32 ALR 485.

[95] CorrsPavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434.

[96] CorrsPavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434.

[97] CorrsPavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434.

[98] Re Harts Pty Ltd and Tax Agents' Board (Qld) [1994] AATA 349.

[99] Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434.

[100] See Re Bunting and Minister Immigration and Multicultural and Indigenous Affairs [2006] AATA 145.

[101] See Re Bunting and Minister Immigration and Multicultural and Indigenous Affairs [2006] AATA 145; Re Minter Ellison and Australian Customs Service [1989] AATA 66.

[102] Re Malcolm Thomas Drabsch and Collector of Customs and Ingersoll-Rand (Australia) Limited [1990] AATA 265.

[103] Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 ss 434 at 443 referring to Commonwealth v John Fairfax & Sons Ltd(1980) 32 ALR 485.

[104] Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; Petroulias and Others and Commissioner of Taxation [2006] AATA 333.

[105] Re Callejo and Department of Immigration and Citizenship [2010] AATA 244 discussing Smith Kline & French Laboratories (Aust) Limited v Department of Community Services & Health (1989) 89 ALR 366.

[106] Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279.

[107] Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279.

[108] Attorney-General v Times Newspapers Ltd [1973] 3 All ER 54 in which an article criticising the small size of an offer of settlement of a negligence claim was found to be in contempt because it improperly applied pressure to induce a litigant to settle.

[109] For further information on contempt of court see AGS Legal Briefing # 56, available at www.ags.gov.au.

[110] Re KJ Aldred and Department of Prime Minister and Cabinet [1989] AATA 148.

[111] See Senate Brief No 11, available at www.aph.gov.au.

[112] Section 13 of the Privileges Act prohibits any person from publishing or disclosing without authority a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera unless the House or committee has already published the document or authorised its publication. The prohibition also extends to oral evidence.

[113] Department of Employment, Workplace Relations and Small Business v Staff Development and Training Company (2001) 114 ss 301.

[114] Lansing Linde Ltd v Kerr (1990) 21 IPR 529 per Staughton LJ at 536, cited in Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163.

[115] Re Organon (Aust) Pty Ltd and Department of Community Services and Health [1987] AATA 396.

[116] Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163.

[117] Re Mangan and The Treasury [2005] AATA 898; Re Metcalf Pty Ltd and Western Power Corporation [1996] WAICmr 23.

[118] Re Cannon and Australian Quality Egg Farms (1994) 1QAR 491 and Re Hassell and Department of Health of Western Australia [1994] WAICmr 25.

[119] Re Angel and the Department of the Arts, Heritage and the Environment [1985] AATA 314.

[120] Re Hassell and Department of Health Western Australia [1994] WAICmr 25.

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