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Published online by Cambridge University Press: 24 January 2025
The opening words of s 3(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”) state that the object of the Act is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”. Paragraphs (a) and (b) of s 3(1) indicate that this object is to be achieved in two main ways, that stated in s 3(1)(b) being:
[B]y creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.
1 Section 3( 1 )(a) states that the general object will also be achieved by:
making available to the public information about the operations of departments and public authorities and. in particular. ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices.
Part II (ss 8-10) of the FOI Act implements this objective; s 8 requires Ministers to publish information concerning the operations of departments and other agencies; s 9 requires that certain documents. (those which. in general terms, contain the “rules and practices” referred to in s 3(1)(a)). be made available for inspection and purchase; and s 1O is a convoluted provision which to some extent protects persons who are not aware of the documents referred to in s 9.
2 There is however a third major aspect of the scheme under the FOI Act. Part V (ss 48-52) enables persons who obtain access under the FOI Act to their personal records to request that the records be corrected in some respects; that the person may appeal to the Administrative Appeals Tribunal against a refusal to correct the record; and. further. even if the appeal is unsuccessful. to request that a short statement regarding the person's opinion that the record is incorrect be attached to it and to accompany the record when it is shown to any person. Part V was added to the scheme after the 1978 FOI Bill was drafted and this may explain the absence of any reference to it ins 3(1).
3 Parts III (ss 11 -31). VI (ss 32-47). VI (ss 53-69) and VII (ss 70-90). The definitions of the key words and phrases ins 11 which are contained ins 4 in Part I are also of crucial significance; these matters will not be analysed here.
4 In no respect do the exemption provisions prohibit the disclosure of documents. This is recognised bys 14:
Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents). otherwise than as required by this Act. where they can properly do so or are required by law to do so.
The words “properly do so” were designed. inter alia. to remind public servants and Ministers of the criminal penalties for unauthorised disclosure in ss 70 and 79 of the Crimes Act 1914 (Cth).
5 Policy Proposals for Freedom of Information Legislation — Report of Interdepartmental Committee Parl Paper No 400/1976. 21(5.6).
6 Compare with the clauses 33A, 39, 40 and 44 proposed by Mr Bowen in the Committee debate on the Bill that became the 1982 FOI Act; see H Reps Deb, 23-24 February 1982, p 469 ff. See now the Freedom of Information Amendment Bill 1983, which seeks to insert a s 33A and to amend ss 39 and 40.
7 Compare s 46, which refers to “public disclosure”, and see the analysis of this phrase below.
8 This is the view taken by the Attorney-General's Department in Guidelines to the Freedom of Information Act (FOI Memoranda issued by the Attorney-General's Department for the guidance of agencies subject to the Freedom of Information Act 1982) (1982) 18 (“FOI Guidelines”). Under the United States FOI Act, (5 USC § 552, printed in Policy Proposals for Freedom of Information Legislation, Report of Interdepartmental Committee, Parl Paper No 400/1976, 103-109), every person in the world may make a FOi Act request; see Neal-Cooper Grain Company v Kissinger (1974) 385 F Supp 769.
9 The Attorney-General's Department FOI Guidelines. supra n 8, 2. agree with this position. Personal interest is directly relevant to the operation of ss l2(2)(a), 41. and 43. and will be indirectly relevant to ss 38 and 45. On the general issue. see the Postscript to this article concerning Re Witheford. (AAT. unreported. No A83/32. 26 August 1983).
10 Compare Department (If the Air Force v Rose (1976) 425 US 352. 361. This article will refer only incidentally to the appeal and review aspects of the scheme under the FOi Act. Briefly. a person denied access by reason of an exemption provision (or for almost any other reason) may appeal either to the AAT, which may substitute its decision for that of the decision maker (s 58, FOI Actl. or. ifa conclusive certificate has been issued under any of ss 33. 34, 35 or 36, may seek review of the reasonableness of making of the certificate by the Document Review Tribunal (“DRT”). The DRT, however. may only recommend that the certificate be revoked. (s 67(3)). The Freedom of Information Amendment Bill 1983 makes provision for the abolition of the DRT. and for the exercise of similar powers by panels of the AAT comprised of one or three presidential members (els 27 to 30).
11 (1978) 53 ALJR 11. See Freedom (If l11formation—Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978, Parl Paper No 272/1979, 57-67, 255-257.(“Freedom of Information (1979)”). See too S Campbell, “Recent Cases” (1979) 53 ALJ 212; DC Pearce, “Of Ministers, Referees and Informers — Evidence Inadmissible in the Public Interest” (1980) 54 AU 127.
12 See Stephen J in Sankev v Whitlam (1978) 53 ALJR 11, 25, 31, emphasising the public nature of the disclosure.
13 Freedom of Information (1979). supra n 11. 21-22.
14 For example, in Sankey v Whitlam (1978) 53 ALJR 11. 28, Stephen J argued, in favour of disclosure, that “the high offices which were occupied by those charged and the nature of the conspiracies sought to be attributed to them in those offices must make it a matter of more than usual public interest that in the disposition of the charges the course of justice be in no way unnecessarily impeded”.
15 (1978)53ALJR 11.29.
16 Ibid 23.
17 Australian Government Publishing Service 1978. The Handbook was issued by the Attorney-General in 1978, and is Appendix 3 of Freedom of Information (1979). supra n 11. the page references below are to Freedom of information (1979).
18 Freedom of Information (1979). supra n 11. 439.
19 Ibid
20 Ibid 442.
21 Ibid (emphasis in the originals).
22 Compare to the approach recommended in the Royal Commission on Australian Government Administration (Chairman: Dr H C Coombs) Appendix Vol 2. 110 ff, Par! Paper No 187/1976, Minority Report Draft FOi Bill.
23 Cf Commonwealth v John Fairfax and Sons Ltd (1980) 55 ALJR 45, 50 per Mason J
24 Clauses 16 and 17 of the Freedom of Information Amendment Bill 1983 make provision, respectively, for a news 33(1) which would in substance repeat the provisions ofss 33(1) which would substance repeat the provisions of ss 33(1)(a)(i), (ii) and (iii) of the 1982 Act, and for a new s 33A. which would in substance repeat the provisions of ss 33(1)(a)(iv) and 33(1)(b). In addition, cl 14 of the Bill makes provision for a news 26A, which would provide that where provision had been made for consultation between the Commonwealth and a State, such consultation should take place if it is a case where a State might reasonably wish to contend that a document was exempt under the proposed s 33A. Further. the proposed s 26A would provide that, if. after such consultation. it is decided that the document is not exempt, the State must be notified of the decision, and given opportunity to seek a review of it under a proposed s 58F (see cl 30).
25 FOI Guidelines (1982), supra n 8, 100-101.
26 FOI Guidelines. supra n 8. 101.
27 Prime Minister Hawke has repeated these assurances to the State Premiers and to the Chief Minister of the Northern Territory.
28 Sankey v Whitlam (1978) 53 ALJR. 29 per Stephen J
29 [1942] AC 624.
30 Sankey v Whitlam (1978) 53 Al.JR 11. 32 per Stephen J. cfGibbs ACJ at 24-25 and contrast Mason J at 46.
31 Ibid 29.
32 Ibid 22 per Gibbs ACJ. 45 per Mason J.
33 See Commonwealth v John Fairfax & Sons Ltd (1980) 55 ALJR 45, 49 per Mason J.
34 Contrasts 36(1), where to be exempt a document must fall within the class ofs 36(1)(a) and be such that its disclosure would be contrary to the public interest (s 36(1)(b)). Clauses 18 and 19 of the Freedom of Information Amendment Bill 1983 make provision for new ss 34(1A) and 35(1A) which would have the effect that the sections would not apply be reason only of “'purely factual material” in a document otherwise within the ambit of the sections, unless its disclosure would involve the disclosure of any deliberation or decision of Cabinet or Executive Council,or the fact that such matters have not been officially published.
35 Freedom of Information (1979), supra n 11, 62.
36 See definition of document in s 4(1).
37 (1978) 53 ALJR 11 22. and see Lanyon Pry Ltd v Commonwealth (1974) 129 CLR 650.
38 (1978) 53 ALJR 11. 43-44.
39 Ibid 22 per Gibbs ACJ and 29 per Stephen J. and 43 per Mason J.
40 Ibid 23.
41 Ibid 29.
42 Ibid 43.
43 Ibid 24 per Gibbs ACJ. 28 per Stephen J. 45 per Mason J
44 Acts Interpretation Act 1901 (Cth) s 13(3); DC Pearce. Statutory lnterpretarion in Australia (2nd ed 1981)58
45 Freedom of Information (1979). Supra n 11. 213-220.
46 Policy Proposals for Freedom of Information Legislation. supra n 5. 45 (10.15). citing National Labor Relations Board v Sears, Roebuck & Company (1975) 421 US 132.
47 Ibid.
48 (1975)421 US 132.
49 Senate Standing Committee on Constitutional and Legal Affairs (Reference: Freedom of Information Bill 1978 and related aspects of Archives Bill 1978) 1978- 79 (Official Hansard Transcript of Evidence) In Three Volumes vol 1. 128 (“Transcript”).
50 Supra n 1.
51 This was the approach taken by the United States Supreme Court in NLRB v Sears, Roebuck & Co (1975) 421 US 132. 153. and confirmed in Renegotiation Board v Grumman Aircraft (1975) 421 US 168, 184. n 21.
52 Freedom of Information (1979). supra n 11. 222.
53 Ibid, citing Lord Hailsham LC in D v National Societv for the Prevention of Cruelty to Children [1977] 2 WLR 201, 218-219.
54 Some public servants were inclined to define the public interest in a way that would exclude them generally, see Transcript. vol 3. supra n 49. 1696-1697, per Mr J Stone. Similarly. documents which are within the class of 'State papers (see above) are not automatically entitled to be withheld in litigation. and Australian courts require a showing in some particular of the grounds on which withholding can be justified on the ground of public interest. although. as has been noted. judges vary in their approaches to this issue.
55 Supra n 13.
56 See Freedom of Information (1979), supra n 11. 21-22.
57 Transcript vol 2. supra n 49. 621 per Mr Paul Munro.
58 Transcript vol 1. supra n 49. 131.
59 In Lonrho Ltd v Shell Petroleum [1980] 1 WLR 627, 638 Lord Diplock referred to a claim made for public interest immunity in respect of a class of documents and observed: “[l]ike all class claims the basis of it is pour encourager les autres “.
60 Transcript vol 2. supra n 49. 840 submission of the Public Service Board.
61 Ibid.
62 Ibid.
63 Ibid vol 1, 617.
64 Ibid 203, per Mr John Wood.
65 Ibid 203-204, per Mr Bourke.
66 Freedom of Information (1979). supra n 11. 48.
67 Transcript vol 1. supra n 49, 618.
68 Ibid vol 2 888-889.
69 See Mr J Stone ibid vol 3 1712.
70 See Dr McMichael ibid vol 1 678.
71 Mr Munro ibid vol 1 621; see too Mr Smith vol 2 1023-1024.
72 Ibid vol 2 930 per Mr Doyle.
73 Ibid vol 2 931.
74 Freedom of Information (1979), supra n 11, 216-217.
75 Transcript vol 3, supra n 49. 2305 per Mr Yeend.
76 Freedom of[nformation (1979), supra n 11, 216.
77 (1978) 53 ALJR 11, 44. and cf Stephen J at 31.
78 lbid 22.
79 Federal Open Market Committee v Merrill (1979) 443 US 340, 359-360. In NLRB v Sears, Roebuck & Co (1975) 421 US 132, 161, the Court found that advice which had been adopted could be made public. On the question of disclosure after a decision, compare the views of Mason J in Sankey v Whitlam (see below).
80 See Senators Puplick and Hamer, Transcript vol 3, supra n 49. 1710-1722 and Senator Evans at 1724; but note that Mr John Stone rejected the distinction in an argument that favoured exclusion in any case. ibid 1712.
81 Ibid Transcript vol 2 981.
82 [1968] AC 910,952.
83 (1978) 53 ALJR 11, 22.
84 See Senators Evans and Puplick, Transcript vol 2. supra n 49, 892. 895 respectively.
85 Ibid Transcript vol 1 469 per Mr Yates.
86 Ibid Transcript vol 2 470.
87 Sankey v Whitlam (1978) 53 ALJR 11, 24 and 45 per Mason J.
88 Ibid 23 per Gibbs ACJ.
89 FOI Guidelines, supra n 8, 194-198.
90 Ibid 201.
91 (1978) 53 ALJR 11, 44 and cf Aicken J. 48.
92 5 USC § 552. supra n 8.
93 Freedom of Information (1979). supra n 11, 225.
94 Cf the general US view: Carson v US Department of Justice (1980) 631 F 2d 1008, 1018 citing the leading cases.
95 Cf the position in the US: James T O"Reilly. Federal Information Disclosure (1977 updated through 1982). 17-29.
96 Such cases have occurred in the United States: Lesar v US Department pf Justice (1980) 636 F 2d 472,476,486.
97 Ibid 486-487.
98 Freedom of Information (1979), supra n 11. 228.
99 See the analysis in Moorefield v United States Secret Service (1980) 611 F 2d 1021, 1024-1025.
100 (1980)611 F 2d 1021.
101 Ibid 1024-1025.
102 Transcript vol 3, supra n 49, 1777-1780.
103 (1977) 433 F Supp 812. 822-823.
104 (1978) 437 US 214, 239-242.
105 Ibid 242 citations omitted.
106 See (1978) 437 214, 241-245.
107 (1980) 617 F 2d 854.
108 Ibid 870.
109 See generally, J A Gobbo, D Byrne and J D Heydon, Cross on Evidence (2nd Aust Ed. 1979) Ch 12 passim, DC Pearce, “Of Ministers, Referees and Informers—Evidence Inadmissible in the Public Interest” (1980) 54 AU 127, 134-139 and I Eagles. “Evidentiary Protection for Informers—Policy or Privilege?” (1982) 6 Crim LJ 175.
110 Marks v Beyfus (1890) 25 QB 494, 498-499, 500.
111 [1978] AC 171,232.
112 Ibid 232; and see Eagles, supra n 109, 191 ff.
113 [1973] AC 388.
114 [1978] AC 171. There are other recent cases concerning bodies other than the police which enforce or administer the law: Alfred Crompton Amusement Machines ltd v Customs and Excise Commissioners [1974] AC 405 (information given to the Commissioners by importers; Maloney v NSW National Coursing Associarion Ltd [1978] I NSWLR 60 (information given to the Corporate Affairs Commission concerning the conduct of directors and officers of companies).
115 See Pearce. supra n 109. 138-139.
116 [1973] AC 388. 401.
117 Ibid.
118 One approach is to erect a rule that all sources should be regarded as confidential (see Lord Reid ibid, but such an approach would ignore the word 'confidential' ins 37(1)(b).
119 Eagles, supra n 109, 177 and see too Pearce, supra n 109, 136-138.
120 Eagles, supra n 109, 178.
121 [1978] AC 171,242.
122 Eagles, supra n 109, 184.
123 Ibid 185.
124 Shaver v Bell (1977) 433 F Supp 438. Clause 20 of the Freedom qf Informarion Amendment Bill 1983 makes provision for the substitution of s 37(1)(c) with a broader provision which would read '"endanger the life or physical safety of any person”.
125 Quoted in James T O'Reilly, supra n 95, 17-33.
126 Freedom of Information (1979 ). supra n 11. 225.
127 Ibid. 228.
128 Ibid.
129 Ibid 229.
130 (1977) 448 F Supp 919. 922.
131 Freedom of Information (1979), supra n 11. 121.
132 Ibid 231.
133 Ibid 122.
134 Ibid 231. The Committee wished to see an amendment to what is nows 37. but it appears as ifs 25 was seen to be the answer to this problem.
135 Freedom of Information (1979), supra n 11, 485-489.
136 (1975) 422 US 255.
131 Ibid 259.
138 (1978) 574 F 2d 624.
139 Ibid 626.
140 Ibid 628.
141 Ibid 628-629.
142 Consumer Product S4etv Commission v GTE Sylvania, Inc (1980) 447 US 102. 122.
143 Clause 21 of the Freedom of Information Amendment Bill 1983 makes provision for the insertion of a news 39(2), to read “This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would. on balance. be in the public interest”.
144 Freedom of Information (1979). supra n 11, 248-249.
145 Clause 21 of the Freedom of Information Amendment Bill 1983 proposes to substitute a new s 40, sub-section (1) of which reformulates s 40(1) in a way which both clarifies and extends the provision in s 40. Sub-s (2) of the proposed s 40 is identical to that in the proposed s 39(2).
146 Freedom of Information (1979). supra n 11. 247.
147 Ibid.
148 H Reps Deb, 24 Feb 1982, 558.
149 FOI Guidelines, supra n 8, 182.
150 Ibid 183.
151 Ibid.
152 DC Pearce, Statutorv Interpretation (2nd Ed 1981) 115-116.
153 (1975) 132 CLR 582.
154 Cf cl 21 of the Freedom of Information Amendment Bill 1983, supra n 145.
155 Freedom of Information (1979), supra n 11, 260-261.
156 5 USC § 552, supra n 8.
157 Transcript vol 1, supra n 49, 145, Mr L Curtis.
158 Report No 11 (1979).
159 ALRC Discussion Paper No 2, 1977.
160 ALRC Discussion Paper No 3, 1977.
161 ALRC Discussion Paper No 13, 1980.
162 ALRC Discussion Paper No 14, 1980.
163 Aboven 158,109.
164 Ibid 214.
165 Ibid 125.
166 Ibid 127.
167 Ibid 127-128.
168 FOI Guidelines, supra n 8, 119.
169 Ibid 120.
170 Freedom of Information 1979, supra n 11, 98.
171 FOI Guidelines, supra n 8, 119.
172 Ibid 8.
173 See J G Fleming, The Law of Torts (5th ed 1977) 79.
174 See too ALRC Discussion Paper No 14, Privacy and Personal Information (1980), paras 107-108, where, however, it seems to be assumed that disclosure of information concerning a child to a parent is disclosure to another person. Of course agencies or Ministers may, apart from the FOI Act, choose to disclose such information to parents.
175 FOI Guidelines, supra n 8, 121 (emphasis added).
176 This analysis of the effect of the words “'disclosure under this Act” is in accord with the general trend of judicial opinion in the United States; (see Dillow v Schultz (1975) 517 F 2d 166. Disabled Officers' Association v Rumsfeld (1977) 428 F Supp 454, Harbolt v Department of State (1980) 616 F 2d 772; but contra Getman v National Labor Relations Board (1971) 450 F 2d 670, Wine Hobby USA Inc v Internal Revenue Service (1974) 502 F 2d 133, and Church of Scientologyv Department of the Army (1979) 611 F 2d 738. A thorough analysis which favours the view that the requester's interests are irrelevant is FA Rosenfeld, ''The Freedom of Information Act's Privacy Exemption and the Privacy Act of I 974” (1976) 11 Harvard Civil Rights-Civil Liberties Law Review 596).
177 Section 12(2) of the FOI Act provides that the right to access (s 11) does not arise in relation “to a document or a part of a document that became a document of an agency or an official document of a Minister before [ I December 1982]”. Bys I 2(2)(a) this exclusion does not in effect apply if the document contains “'information relating to the personal affairs” of the applicant and it came into the possession of the agency or Minister from which or whom it is requested after 30 November 1977. Cf cl 7 of the Freedom of Information Amendment Bill 1983.
178 ALRC Discussion Paper No 14, 1980.
179 Ibid para 81 .
180 Ibid para 101.
181 (1976) 425 US 352, 372.
182 Ibid 380-381.
183 FA Rosenfeld, supra n 177, 606-611.
184 Ibid 611.
185 FOI Guidelines, supra n 8, 122.
186 Ditlow v Schultz (1975) F 2d 166, 169-170.
187 FOI Guidelines, supra n 8, 122.
188 United States defamation law has developed the concept of a public figure, see ALRC Report No 1 Unfair Publication: Defamation and Privacy (1979), 247-253.
189 (1980) 636 F 2d 472.
190 Ibid 487.
191 Nix v United States (1978) 572 F 2d 998, 1006.
192 (1977) 563 F 2d 495.
193 Transcript vol 1, supra n 49, 525, Mr Orme.
194 ALRC Report No 11, Unfair Publication: Defamation and Privacy (1979) 54, 55.
195 FOI Guidelines, supra n 8, 123.
196 Ibid.
197 See Wine Hobby USA, Inc v United States Internal Revenue Service (1974) 502 F 2d 133.
198 For example, a group of war veterans; see Disabled Officers Association v Rum feld (1977) 428 F Supp 454.
199 Transcript vol 1, supra n 49, 561, Mr K O'Connor.
200 FOI Guidelines, supra n 8, 126.
201 See H Whitmore and M Aronson, Review of Administrative Action (1978) 194-198.
202 Explanatory Memorandum. 1981 FOI Bill (H Reps), para 128.
203 J A Gobbo, et al (eds), Cross on Evidence (2nd Aust ed, 1981), para 11.25; (citations omitted).
204 Grant v Downs (1976) 135 CLR 674, 682, 688, per Stephen, Mason and Murphy JJ.
205 Cross on Evidence (2nd Aust ed 1979), para 1.25.
206 See Gulf Oil Corp v Schlesinger (1979) 465 F Supp 913.
207 Cross, supra n 203, para 11.28. This is the rule where the documents are sought in civil proceedings, and this is the situation analogous to FOI Act disclosure. The rule in criminal proceedings is otherwise.
208 O'Reilly v Commissioner of State Bank of Victoria (1982) 44 ALR 27; and see Common-wealth v Frost (1982) 41 ALR 626.
209 Cross, supra n 203, para 11.29.
210 See Coastal States Gas Corp v Department of Energy (1980) 617 F 2d 854, 863.
211 Cross, supra n 203, para 11.30.
212 S 27 requires, in certain circumstances, that a person, organisation or undertaking be given, by an agency or Minister, a reasonable opportunity to make submissions that a document sought by an applicant, which contains information which concerns that person's business, commercial or financial affairs, is exempt under s 43. Further, if the agency or Minister decides that the document is not so exempt, such a person, organisation or undertaking must be given an opportunity to seek review of that decision by the AAT under s 59 of the FOI Act.
213 S 43(3) provides that for the purposes of s 43(1), an 'undertaking' includes an undertaking carried on by, or by the authority of, the Commonwealth, a State, the Northern Territory, or a local government body.
214 S 7(1) deems some bodies which would otherwise have been prescribed authorities and therefore agencies within the scope of the FOI Act not to be prescribed authorities. Several government commercial bodies, such as the Australian National Airlines Commission, are included. For the full list, see Part I of Schedule 2. S 7(2) provides that certain agencies are exempt in relation to certain categories of their documents. For example, the Australian Broadcasting Commission is exempt “in relation to its program material”, and the Australian Postal Commission is exempt “in respect of its competitive commercial activities”. For the full list, Part II of Schedule 2.
215 Freedom of Information (1979), supra n 49, 267.
216 [1967]VR 37.
217 (l977) 148-149.
218 (1981) ch 3.
219 W R McComas, M R Davison & D M Gonski, The Protection of Trade Secrets (1981), 7.
220 One question is whether information which does not qualify for exemption under s 43(1)(a) as a trade secret, because it would be in the public interest to disclose it, could never-theless be exempt under s 43(1)(b).
221 (1974) 498 F 2d 765.
222 5 USC §552, supra n 8.
223 (1974) 498 F 2d 765, 770.
224 FOI Guidelines, supra n 8, 366.
225 This example may be based on comparable United States decisions, but these decisions must be viewed with caution as there is no equivalent in Exemption 4 to s 43(1)(b).
226 FOI Guidelines, supra n 8, 365.
227 TheNational Parks case (1974) 498 F 2d 765.
228 FOI Guidelines, supra n 8, 367.
229 Ibid.
230 Ibid 367.
231 (1974) 498 F 2d 765, 770.
232 FOI Guidelines, supra n 8, 367.
233 Above p 112.
234 FOI Guidelines, supra n 8, 376.
235 See the sharp dissents of Stevens and Stewart JJ in Federal Open Market Committee v Merrill (1979) 443 US 340, 364-366 (Supreme Court).
236 See DC Pearce, Statutory Interpretation In Australia (1981 2nd ed), 40-44. The application of the ejusdem generis rule of interpretation is always problematic. In this case, it should be noted that the drafter has not chosen to use words such as “without limiting the generality of the foregoing"' which more clearly rebut the ejusdem generis rule.
237 Ibid 24, 36-37.
238 Ibid 32-33.
239 Disclosure under the FOi Act is to the world, whereas the disclosure that may constitute a breach of confidence, or the disclosure which may justify what would otherwise be a breach of confidence, is often to only a very small group. Another major contrast is that the reported judicial decisions are often made on interlocutory proceedings, and in which therefore the judges do not offer concluded views.
240 See the Postscript to this article concerning Re Witheford (AAT, unreported, No A83/32, 26 August 1983).
241 See generally P D Finn, Fiduciary Obligations (1977) Ch 19; R P Meagher, W M C Gummow and J RF Lehane, Equity: Doctrines and Remedies (1975) 713- 722.
242 Castro Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31; Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105.
243 Commonwealth v John Fairfax & Sons Ltd (1980) ALJR 45 (Mason J).
244 Supra n 242.
245 Argyll v Argyll [1967] Ch 302.
246 Foster v Mountford and Rigby Ltd (1976) 14 ALR 71.
247 Attorney-General v Jonathan Cape Ltd [1976] QB 752, Commonwealth v John Fairfax & Sons Ltd (1980) 55 ALJR 45 (Mason J).
248 O'Reilly v Commissioner of State Bank of Victoria (1982) 44 ALR 27, 39 per Mason J, and 50 per Wilson J.
249 See O'Brien v Komesaroff (l982) 56 ALJR 681, 688 per Mason J.
250 See PD Finn, Fiduciary Obligations (1977), 148-149 for a brief review of the factors relevant to these issues.
251 [l969]RPC41.
252 lbid 48.
253 See P D Finn, Fiduciary Obligations 144.
254 lbid.
255 Ibid 159-161.
256 FOi Guidelines, supra n 8, memo No 35, 7.
257 Ibid.
258 Supra n 242.
259 [1973] 1 All ER 241, 260.
260 (1980) 33 ALR 31, 56.
261 See infra n 262; see too the remarks of Murphy J and Brennan J in O'Brien v Komesaroff (1982) 56 ALJR 681,688.
262 See British Steel Corporation v Granada Television Ltd [1981] 1 All ER 417, Schering Chemicals v Falkman Ltd [1981] 2 All ER 321, contrasting Lord Denning MR and Shaw LJ.
263 (1981)34 ALR 105.
264 (1980) 55 ALJR 45.
265 Ibid 49. Although his Honour did find that an injunction should not be granted because of the publication of the documents that had already taken, and was likely to take, place, ibid 50.
266 lbid 49.
267 Ibid 50.
268 lbid.
269 See P W Hogg, Liability of the Crown in Australia, New Zealand and the United Kingdom (1971) 174-180. S 92 provides that where access under the FOI Act was required, or bonafide believed to have been required, neither the person who authorised or gave the access is guilty of a criminal offence.
270 C J Miller, Contempt of Court (1976), 2.
271 See Miller, Contempt of Court (1976), 182-197.
272 Ibid passim for examples.
273 [1974] AC 273, 300.
274 (1982) 56 ALJR 506.
275 Ibid 533.
276 C J Miller, Contempt of Court (1976), 123-124.
277 Ibid 125.
278 (1982) 56 ALJR 506, 516. See also 533 per Mason J, 549-550 per Wilson J, and 568 per Brennan J.
279 (1937) 37 SR (NSW) 242, 249.
280 (1982) 56 ALJR 506, 534.
281 [1974] AC 273, 303.
282 Ibid 299.
283 (1982) 56 ALJR 506, 568.
284 S 6D(3) of the Royal Commissions Act 1902 (Cth) empowers any such Commission to direct that any evidence given before it, or the contents of any documents produced at the inquiry shall not be published.
285 Freedom of Information (1979), supra n 49, 485-489.
286 Ibid 254.
287 Ibid.
288 See J R Odgers, Australian Senate Practice (5th ed 1976), 504-506; Pettifer, House of Representatives Practice (1981), 660-661. Note also Section 46(c) expressly includes the legislatures the States and the Northern Territory and Norfolk Island. Given these express inclusions, it is difficult to accept the argument of FOI Guidelines, supra n 8, Memorandum No 46 thats 46(a) and (b) should similarly extend to State courts, Royal Commission, tribunals and other persons and bodies, etc.
289 Unreported, No A83/32, 26 August 1983. The Tribunal comprised Mr Justice J D Davies (President), Mr R K Todd (Deputy President), and Mr G D Grant (Member).
290 Ibid 5.
291 Ibid 12-13, following Re Waterford and Department of the Treasury, (1983) 5 ALO 193, and see the later decision in Re Waterford and Department of Health, (Unreported No A83/14, 2 September 1983).
292 Ibid 9. The Tribunal commented: “No doubt there may be a fine line between what should be seen as the personal affairs of an officer on the one hand and the affairs of the Department on the other. It may be a question whether information relates to the personal affairs ofan applicant merely because it is contained in a document placed on his or her personal file. For the moment we need not rule upon this point”.
293 Ibid 1.
294 Ibid 2.
295 Ibid 4.
296 Ibid 5.
297 Ibid 18.
298 The Tribunal's reasoning would, presumably, also apply to the exemptions ins 33.
299 In Re Munsie and Director-General of Social Security, (Unreported No Q83/30, 21 June 1983), the Tribunal, constituted by the Hon J BK Williams, appears to have thought it relevant to record the reason why the applicant required access to the document requested, at 3.
300 The phrase “under this Act” is not employed in ss 34, 35, 42 or 47. These provisions are concerned to deem certain classes of documents exempt, irrespective of the effects of their disclosure. S 46 refers to the “public disclosure” of a document; its operation is explained in the article, above p 127.
301 S 45 may be compared to s 33(1)(b), which latter speaks of “information or matter communicated in confidence”. It may be argued that if the drafter had intended to express ins 45 the view adopted by the Tribunal in Witheford, he or she would have employed the terminology used ins 33.
302 Re Witheford and Department of Foreign Affairs, unreported, No A83/32, 26 August 1982, 14.
303 See the discussion in the article, above p 124. So far as inter-agency communications are concerned, the application of s 45 has been negated by the insertion into the Act of s 45(2) by the Freedom of Information Act Amendment Act 1983. Such of those communications as falls within the description of s 36(1)(a) cannot be exempt under what is nows 45(1), although they may be exempt under s 36(1) or under some other exemption provision.
304 Re Witheford and Department of Foreign Affairs, unreported, No A83/32, 26 August 1982, 14-15.
305 Ibid 18.
306 Ibid.
307 Ibid 19.