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Published online by Cambridge University Press: 24 January 2025
(1978) 21 A.L.R. 505.
2 The Constitution, s. 75, guarantees a right to control a certain amount of administrative abuse by way of prerogative writs.
3 RCA GA Report (Parliamentary Paper No. 185 of 1975) paras. 5.1.3-5.1.22.
4 Commonwealth Administrative Review Committee, (henceforth “Kerr Committee”) Report, (Parliamentary Paper No. 144 of 1971).
5 Id. para. 266; cf. Freedom of Information Bill 1978 (Cth), cl. 22, which provides that reasons shall be given for a decision not to disclose information.
6 Id. paras. 343-344.
7 [1968] A.C. 910.
8 Despite the rather cautious approach adopted by the majority in the RCAGA Report, paras. 10.7.19-10.7.26, summarized and criticised by Hawker, “The Administrative Implications of Freedom of Information Legislation” (1977) 36 Australian Journal of Public Administration 168. The successive Governments appeared to have preferred the approach of the dissenting Commissioner, P. Munro (Appendix 2A to RCAGA Report); though the Bill introduced in 1978 differs significantly from that suggested by Munro. Macmillan, “Making Government Accountable” [1977] New Zealand Law Journal 248, 275, 291, gives useful comparative material on freedom of information legislation in other countries.
9 Rogers v. Home Secretary [1973] A.C. 388, 406-407.
10 Kerr Committee Report, op. cit. n. 4, paras. 343-344. The subject is considered in detail by Pearce, “The Courts and GovernmentInformation” (1976) 50 A.L.J. 513.
11 Parker v. The Queen (1963) 111 C.L.R. 610, 632-633.
12 (1978) 18 A.LR. 257.
13 (1913) 16 C.L.R. 178 esp. 186-187, 193-194, 206-208,
14 (1860) 5 H. & N. 838, 853; 157 E.R. 1415.
15 E.g. Robinson v. South Australia [No. 2] [1931] A.C. 704, and Conway v. Rimmer [19681 A.C. 910, 979 per Lord Hodson; 981 per Lord Pearce.
16 [1931] A.C. 704.
17 [1942] A.C. 624.
18 Id. 636.
19 E.g. Ellis v. Home Office [1953] 2 Q.B. 135; Broome v. Broome [1955] P. 190; Glasgow Corporation v. Central Land Board 1956 S.C. (H.L.) 1, where the House of Lords found that Duncan's case, though arguably a correct statement of English law, did not correctly state the Scots law, upon which it purported to be based in part; esp. per Lord Radcliffe 18-19; Whitehall v. Whitehall 1957 S.C. 30; Corbett v. Social Security Commission [1962] N.Z.L.R. 878, where the New Zealand Court of Appeal stated that the Privy Council would, in all probability, adhere to its opinion in Robinson's case, and chose to follow that decision rather than Duncan's case; Bruce v. Waldron [1963] V.R. 3, where the Victorian Full Court approved the New Zealand view; and two English Court of Appeal decisions, Merricks v. Nott-Bower [1965] 1 Q.B. 37, and In re Grosvenor Hotel, London [1965] Ch. 1210, where the Court took the view that some, at least, of the dicta in the speech of Viscount Simon L.C. were too wide and in any event misstated the Scots law,
20 [1968] A.C. 910.
21 (1978) 21 A.LR. SOS,
22 [1968] A.C. 910, 940, 952, 959, 988, 992.
23 Id. 951-952 per Lord Reid; this speech, and that of Lord Morris of Borth-y- Gest show the obvious influence of the speech of Lord Radcliffe in Glasgow Corporation v. Central Land Board 1956 S.C. (H.L.) 1, 18-19.
24 Id., esp. per Lord Upjohn 992-994.
25 E.g. Rogers v. Home Secretary [1973] A.C. 388; Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners No. 2 [1974] A.C. 405; and Attorney-General v. Jonathan Cape Ltd [1976] Q.B. 752.
26 Compare the view of Menzies J. in Lanyon Pty Ltd v. The Commonwealth (1974) 129 C.L.R. 650, 653, where His Honour stated that while there were cases in which the Courts might examine documents in respect of which privilege had been claimed, these cases were exceptional, with that of Mason J. in Australian National Airlines Commission v. The Commonwealth (1975) 132 C.L.R. 582, 593-594, where His Honour stated that the Australian law was as stated in Conway v. Rimmer and that he should balance the competing public interests.
27 E.g. Nash v. Commissioner of Railways (1963) 63 S.R. (N.S.W.) 357; Ex parte Black; re Morony [No. 2] [1965] N.S.W.R. 934.
28 Bruce v. Waldron [1963] V.R. 3.
29 (1967) 67 S.R. (N.S.W.) 1.
30 R. v. Turnbull [1958] Tas. S.R. 80; cf. per Menzies J. in Lanyon Pty Ltd v. The Commonwealth (1974) 129 C.L.R. 650, 653.
31 The definition in cl. 24(1) of the Freedom of Information Bill 1978 is:
“A document is an exempt document if it is–
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted;
(b) an official record of the Cabinet;
(c) a document that is a copy of, or of a part of, a document referred to in paragraph (a) or (b) ; or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”
This definition is an attempt to define the class of documents, which, in the normal course, were thought to be exempt not from production in Court, but from delivery to a member of the public under the provision1;1 of the Bill. The distinction may be important.
32 [1976] Q.B. 752.
33 In Robinson v. South Australia [No. 2] [1931] A.C. 704 and in Duncan v. Gammell, Laird & Co. Ltd [1942] A.C. 624, as well as in subsequent cases, great attention was paid to the form in which the privilege was claimed, and by whom, on behalf of the Crown the claim was made. In view of these decisions, the form of the affidavit, as appears from the judgments, was surprising.
34 (1978) 21 A.L.R. 505, 576.
35 [1968] A.C. 910.
36 (1913) 16 C.L.R. 168.
37 (1978) 21 A.L.R. 505, 526; cf. per Stephen J. 541 and per Mason J. 571-572. 571-572.
38 Id. 528.
39 Id. 571-575.
40 Id. 571-572.
41 E.g. Nash v. Commissioner for Railways (1963) 63 S.R. (N.S.W.) 357.
42 [1968) A.C. 910, 952.
43 (1978) 21 A.L.R. 572.
44 1d. 573.
45 Id. 532-533 per Gibbs A.C.J.; 540 per Stephen J.; 574-575 per Mason J.
46 [1968) A.C. 910.
47 (1978) 21 A.L.R. 505, 526 per Gibbs A.C.J. (quoted at n. 37 supra); the supervening interest can clearly be raised by the Court of its own motion, without intervention by the Government id. 530, 542.
48 (1978) 51 A.L.J.R. 198.
49 Sub-clauses 37(4) and (5) expressly preclude the Tribunal from examining the reasons for the granting of such a certificate.
50 (1978) 21 A.L.R. 505.
51 Defined in cl. 3(1) to mean “a Department or a prescribed authority” which are also defined in the same sub-clause to include all departments of the Commonwealth Public Service other than the Parliamentary departments, and all bodies established under Acts, Regulations or Ordinances, other than legislative or advisory bodies in the Territories, and unincorporated bodies or associations.
52 Also defined in cl. 3(1).
53 In Conway v. Rimmer [1968] A.C. 910 all members of the House of Lords took the view that the judiciary, rather than the executive government was in the best position to make this decision; they specifically refuted the contrary view expressed by Pollock C.B. in Beatson v. Skene (1860) 5 H. & N. 838 (from which Martin B. at 854 dissented) (157 E.R. 1415) at least partly on the grounds that in 1860, if a document was produced in court, it would be available to the public. The possibility of an examination of the document by the judge in camera was apparently a possibility which arose under the Rules of Court made at a later time, but it is clear that their Lordships, and the Justices in Sankey v. Whitlam, considered it essential that the examination should be in camera.