¹ P Finn,Official Information (Integrity in Government Project: Interim Report 1)(1991) at 85.

² S B McNicol, Law of Privilege (1992) at 375. In the case of high-level information the rationale for non-disclosure is grounded in preserving national security and protecting the secrecy of high-level government decision-making. In the case of lower-level information the rationale is founded on “the need to promote candour in communication and to protect the public service from captious and ill-informed public or political criticism”: ibid at 375.

³ P Finn, above n 1 at 162-163.

⁴ Ibid at 93.

⁵ Ibid.

⁶ SeeConway v Rimmer [1968] AC 910.

⁷ See Sankey v Whit/am (1978) 142 CLR 1; Burmah Oil Co Ltd v Bank of England [1980] AC 1090; Air Canada v Secretary of State for Trade [1983] AC 394.

⁸ Glasgow Corporation v Central Land Board [1956] SC (HL) 1 at 18-19 per Lord Radcliffe.

⁹ P Finn, above n 1 at 94.

¹⁰ Ibid.

¹¹ Ibid at 162.

¹² Hereinafter referred to as the FOi Act.

¹³ Attorney-General's Department, Freedom of Information Annual Report 1982-1983 (1983) at 1.

¹⁴ The Commonwealth FOI Act completed a package of administrative law reforms which took the form of the Administrative Appeals Tribunal Act 1975 (Cth); the Ombudsman Act 1976 (Cth); and the Administrative Decisions (Judicial Review) Act 1977 (Cth).

¹⁵ P Finn, above n 1 at 94 (footnotes omitted).

¹⁶ Attorney-General's Department, above n 13 at xi. See also H Rep Deb 1981, Vol 124 at 39-44.

¹⁷ (1978) 142 CLR 1.

¹⁸ See Freedom of Information Act 1982 (Vic); Freedom of Information Act 1989 (NSW); Freedom of Information Act 1991 (SA); Freedom of Information Act 1992 (WA); Freedom of Information Act 1992 (Qld); Freedom of Information Act 1991 (Tas); and Freedom of Information Act (ACT) 1989.

¹⁹ See especially Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; and Theophanous v The Herald and Weekly Times Ltd (1994) 124 ALR 1.

²⁰ G Craddock, “The Freedom of Information Act 1982 and Review on the Merits” (1985) 8 UNSWLJ 313 at 314.

²¹ The exemption provisions under the Commonwealth FOI Act which codify categories of high-level government documents which historically gained protectionunder PII in the interests of preserving the integrity of the government include ss 33, 34 and 35. These exemptions contain no provision for disclosure in the public interest and only s 33(1)(a) requires an assessment of whether there would be any detrimental effects as the result of disclosure. Section 36, the internal working documentsexemption (also known as the deliberative processes exemption) represents an exception to the codification of historically secret classes of high-level documents to the extent that high-level government information falls within the class of document known as deliberative process documents (s 36(1)(a)). That class will only be exempt under s 36 if an agency or Minister can show that disclosure would be contrary to the public interest. Even so, a restrictive application of the public interest test under s 36has seen the exemption being used to exempt classes of high-level documents, such as draft Cabinet submissions. See, for example, Re Reith &Attorney-General's Department (1986) 11 ALD 345; Re Reith and Minister of State for Aboriginal Affairs (1988) 16 ALD 709; and Re Porter and Department of Community Services and Health (1988) 14 ALD403.

²² [1942] AC 624 at 636 per Viscount Simon (emphasis added).

²³ See, for example, A Cossins, “The Public Interest under Freedom of Information” in R Douglas and M Jones, Administrative Law: Cases and Materials (1993) at 151; P Bayne, “Freedom of Information: Democracy and the Protection of the Processes and Decisions of Government” (1988)62 ALJ 538; and Senate Standing Committee on Legal and Constitutional Affairs, Report on the Operation and Administration of the Freedom of Information Legislation (1987).

²⁴ The Commonwealth Administrative Appeals Tribunal (AAT) cannot review a decision to issue a conclusive certificate but can consider whether reasonable grounds exist for the claim that a document is exempt: ss 58(3), (4), (5) and (SA) FOi Act. If the AAT makes a finding that reasonable grounds do not exist, the Minister issuing the certificate can elect to revoke the certificate, although there is no requirement for the Minister to do so.If that election is not made, the Minister is required to report to Parliament: s 58A(3) FOi Act. Conclusive certificates apply to documents whose release would or could reasonably be expected to damage the security of the Commonwealth, the defence of the Commonwealth, the international relations of the Commonwealth or relations between the Commonwealth and a State: ss 33(1) and 33A(l); documents whose release would divulge information given to the Commonwealth Government in confidence by a foreign government or authority, an international organisation, or a State government or authority: ss 33(1) and 33A(l); Cabinet and Executive Council documents: ss 34 and 35; and internal working documents: s 36.

²⁵ D C Hodgson, “Recent Developments in the Law of Public Interest Immunity: Cabinet Papers” (1987) 17 Victoria University of Wellington Law Review 154 at 155.

²⁶ P Finn, above n 1 at 167 (emphasis in original).

²⁷ Under the FOi Act, only 6 out of 18 exemptions provide for disclosure in the public interest and there is no overriding public interest test that permits disclosure of exempt documents if the public interest requires it.

²⁸ P Finn, above n 1 at 168.

²⁹ This is a trend visible in recent State FOi case law: see, for example, Commissioner of Police v The District Court and Perrin (1993) 31 NSWLR 606; Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1994) 1 QAR 60; Sobh v Police Force of Victoria [1994] 1 VR 41.

³⁰ Australian Law Reform Commission and Administrative Review Council, Freedom of Information (Issues Paper 12) (1994).

³¹ P Finn, above n 1 at 167.

³² Ibid at 96.

³³ This doctrine is also known as Crown privilege, a term which has fallen into disfavour since the decision in Conway v Rimmer [1968] AC 910, which held that the Crown was no longer able to withhold documents as of right. The term has also been disfavoured since decisions which have seen claims of immunity from disclosure being made by bodies other than “the central organs of government”: A A S Zuckerman, “Privilege and Public Interest” in C Tapper (ed) , Crime, Proof and Punishment (1981) 248 at 270. In recent years, the doctrine has been extended to cover the withholding of documents held by statutory but non-government bodies, such as the National Society for the Prevention of Cruelty to Children and the Gaming Board in England (see D v NPSCC [1978] AC 171 and Rogers v Home Secretary [1973] AC 388, respectively) so that it can besaid that the evolution of the doctrine has seen it develop from being a privilege of the Crown to a rule for excluding evidence where it is in the public interest to do so: D C Hodgson, above n 25 at 154. Nonetheless, Aronson and Franklin observe that Lords Scarman and Edmund-Davies in Science Research Council v Nasse [1980] AC 1028 “emphasised that extensions of the immunity beyond the interests of central government have so far been confined to situations in which other bodies have been performing government functions of a police natureȁ: M Aronson and N Franklin, Review of Administrative Action (1987) at 356.

³⁴ Other bodies are those which have the power to coerce the giving of evidence:SB McNicol, above n 2 at 374.

³⁵ Ibid at 375.

³⁶ K Hormby, “Public Interest Privilege: From Crown Privilege to FOIA” (1981) 23 Arizona Law Review 1132; see also P and J Weels, “Crown Privilege” (1976) 3 Queens Law Journal 126 at 132.

³⁷ K Hormby, above n 36 at 1133; G E Robertson, The Law and Practice of Civil Proceedings by and against the Crown and Departments of the Government (1908) at 600-601.

³⁸ P Finn, above n 1 at 86.

³⁹ Ibid at 87-89.

⁴⁰ Ibid at 89. The exception to this proposition is the existence of the Audit Act 1901 (Cth) and the powers of the Auditor-General thereunder to require the disclosure of government information. (I am grateful to Bill Blick for this observation). Nonetheless, a significant level of governmental control is still maintained over the disclosure of government information under the FOi Act which is manifested in the numerous limitations placed on an individual's right of access such as the exemption provisions. Exemption of documents under these provisions is qualified, however, bys 14 which gives agencies and Ministers a discretion to disclose information even if classified exempt.

⁴¹ See, eg,R v Chief Constable of the West Midlands Police, Ex parte Wiley [1994] 3 All ER 420 at 43 per Lord Woolf.

⁴² (1888) 21 QBD 509.

⁴³ Ibid at 515 per Field J.

⁴⁴ [1931] AC 704.

⁴⁵ This was contrary to the High Court's position inGriffin v South Australia (1925) 36 CLR 378.

⁴⁶ [1931] AC 704 at 717.

⁴⁷ [1942] AC 624 at 641 per Viscount Simon LC.

⁴⁸ A AS Zuckerman, above n 33 at 268.

⁴⁹ Conway v Rimmer [1968] AC 910 at 985.

⁵⁰ DC Hodgson, above n 25 at 155.

⁵¹ Conway v Rimmer [1968] AC 910 at 940 per Lord Reid.

⁵² Ibid at 953 per Lord Reid.

⁵³ Ibid at 952 per Lord Reid.

⁵⁴ Ibid at 993 per Lord Upjohn.

⁵⁵ M Aronson and N Franklin, above n 33 at 359.

⁵⁶ In Sankey v Whitlam, the claim of PII by the Commonwealth Government was made in relation to deliberations and decisions of the Whitlam Government about the borrowing of money allegedly in contravention of the Financial Agreement Acts. The documents included “a schedule listing the matters brought before the Executive Council for consideration; explanations setting out the reasons for the advice tendered to the Executive Council; memoranda from senior officials to ministers or to senior officials of other departments; letters between ministers, notes of a meeting with the Prime Minister; and loan programs submitted by the Commonwealth to meetings of the Loan Council”: Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information (1979) at 57.

⁵⁷ As observed above, this had been the position in Australia since the Privy Council decision in Robinson v South Australia (No 2) [1931] AC 704.

⁵⁸ Sankey v Whitlam (1978) 142 CLR 1 at 41-42 per Gibbs ACJ; at 62-63 per Stephen J; and at 96 per Mason J.

⁵⁹ Commonwealth v Northern Land Council (1991) 103 ALR 267 at 295 per Black CJ, Gummow and French JJ.

⁶⁰ [1980] AC 1090.

⁶¹ Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1134. See also Lord Scarman at 1144 and Lord Edmund-Davies at 1127. This approach was subsequently followed by Lords Fraser and Edmund-Davies in Air Canada v Secretary of State for Trade [1983] AC 394 at 432.

⁶² R v Chief Constable of the West Midlands Police, ex parte Wiley [1994] 3 All ER 420 at 438 per Lord Woolf.

⁶³ See, for example, Hospitals Contribution Fund (Australia) v Hunt (1983) 76 FLR 408; Harbours Corporation (Qld) v Vessey Chemicals Pty Ltd (1986) 67 ALR 100; Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Hooker Corporation Ltd v Darling Harbour Authority, (Supreme Court of NSW, Rogers J, 7 May 1987, unreported); and Commonwealth v Northern Land Council (1991) 103 ALR 267 (Federal Court of Australia, Full Court). See also the view of Mason J in R Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 222,and more recently,Goldberg v Ng (1994) 33 NSWLR 639.

⁶⁴ (1993) 176 CLR 604.

⁶⁵ Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ.

⁶⁶ Conway v Rimmer [1968] AC 910 at 940 per Lord Reid. This public interest is based on “a fundamental principle in the administration of justice that parties to litigation have a right to bring before the court all evidence relevant to their case and to call on others to produce such evidence as they may”. It can be said to achieve “two basic goals: securing the correctness of legal decisions on questions of fact and promoting procedural fairness”: A A S Zuckerman, above n 33 at 248.

⁶⁷ A A S Zuckerman, above n 33 at 252.

⁶⁸ Ibid at 248.

⁶⁹ TR S Allan, “Discovery of Cabinet Documents: the Northern Land Council Case” (1992) 14 Sydney L Rev 231 at 232.

⁷⁰ A A S Zuckerman above n 33 at 255.

⁷¹ T R S Allan, “Abuse of Power and Public Interest Immunity: Justice, Rights and Truth” (1985) 101 LQR 200 at 204.

⁷² Ibid.

⁷³ (1994) 33 NSWLR 639.

⁷⁴ Ibid at 662 per Mahoney JA.

⁷⁵ T R S Allan, above n 71 at 206-207. Consideration of the wider public interest in disclosure is not always recognised: see, for example, the comments of Blackburn CJ in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at 417, wherein his Honour stated that only when “the need to ensure that the private rights of individual litigants are not unduly restricted” were the public interest considerations to be weighed in favour of disclosure. Arguably the wider public interest in the legality of the operation and processes of the Whitlam government in relation to overseas borrowings was relevant in this case.

⁷⁶ Conway v Rimmer [1968] AC 910 at 987 per Lord Pearce.

⁷⁷ TR S Allan, above n 71 at 207.

⁷⁸ Ibid at 208.

⁷⁹ Sankey v Whit/am (1978) 142 CLR 1 at 56. Except for Loan Council documents, the documents over whichPII had been claimed were not considered to be privileged from production. A private prosecution had been brought by Sankey against Whitlam and three former Ministers who had been charged with conspiracy to act unlawfully under the Crimes Act 1914 (Cth) by borrowing money overseas in contravention of the Financial Agreement Acts. Compare the observations of Stephen J with those of Blackburn CJ in Whit/am v Australian Consolidated Press (1985) 73 FLR 414 at 421. In this later case, in relation to civil proceedings instituted by Whitlam, his Honour held that the principle of collective Cabinet responsibility outweighed the public interest in Whitlam answering a set of interrogatories put by the defendant, despite the fact that Whitlam was no longer a member of government or Cabinet.

⁸⁰ TR S Allan, above n 71 at 209. McNicol observes that at this stage “there must be a clear category of public interest involving injury to the nation or public service which requires protection”: S B McNicol, above n 2 at 391.In relation to the categories of the public interest which will found a claim of PII, Aronson and Franklin, above n 33 at 369-381, list eight categories. McNicol has summarised them as follows: (1) security, defence and diplomacy;(2) police and law enforcement; (3) internal investigations relating to law enforcement agencies; (4) other investigations; (5) top level government documents; (6) children's welfare and marriages;(7) tax and other returns; and (8) other protected interests such as Aboriginal sacred sites: S B McNicol, above n 2 at 401. In each case, if there is a clear category of the public interest which would be injured by disclosure of the documents sought, and if a court is satisfied that the documents contain material evidence, the balancing process will then be undertaken to determine “which aspect of the public interest predominates”: Sankey v Whit/am (1978) 142 CLR 1 at 38 per Gibbs CJ; see too Alister v The Queen (1984) 154 CLR 404 at 412 per Gibbs CJ; at 434 per Wilson and Dawson JJ; and at 454 per Brennan J.

⁸¹ TR S Allan, above n 71 at 209. That the wider public interest is a recognised aspect of the general public interest in disclosure was clearly recognised in Sankey v Whit/am in relation to criminal proceedings: (1978) 142 CLR 1 at 21-26 per Gibbs ACJ and at 56 per Stephen J.

⁸² S B McNicol, above n 2 at 386.

⁸³ Sankey v Whit/am (1978) 142 CLR 1; Conway v Rimmer [1968] AC 910; Rogers v Home Secretary [1973] AC 388 and Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582.

⁸⁴ Judicial inspection serves to verify the validity of the claim being made for non-disclosure and necessarily involves first, an assessment of the effect that it is claimed disclosure will have and secondly, an assessment of the evidentiary value of the contents of the documents to the other party before the balancing process can be undertaken

⁸⁵ A AS Zuckerman, above n 33 at 269.

⁸⁶ T R S Allan, above n 69 at 232. Indeed, the Full Federal Court in Northern Land Council observed that Gibbs ACJ in Sankey v Whitlam had implied that “judicial treatment of a class claim in relation to [Cabinet and other high level documents] would turn in part upon the nature of the contents”: Commonwealth v Northern Land Council (1991) 103 ALR 267 at 295 per Black CJ Gummow and French JJ.

⁸⁷ (1986) 67 ALR 100 at 104-105 per Pincus J. See too Robinson v State of South Australia (No 2) [1931] AC 704 at 725, wherein the Judicial Committee stated that it was a proper exercise of a court's power to inspect “the documents for which privilege is claimed in order to determine whether the facts discoverable by their production would be prejudicial or detrimental to the public welfare in any justifiable sense”.

⁸⁸ [1994] 3 All ER 420.

⁸⁹ Ibid at 424 per Lord Templeman and at 446 per Lord Woolf. Compare the reservations expressed by Lord Slynn of Hadley (at 425) and Lord Lloyd of Berwick (at 448).

⁹⁰ Ibid at 446 per Lord Woolf.

⁹¹ Ibid (emphasis added). Nonetheless, Lord Woolf did not completely “close the door to a future attempt” to establish that the documents in question could be subject to a class claim, although to justify this would “require clear and compelling evidence that it was necessary”: ibid at 446.

⁹² SB McNicol, above n 2 at 409.

⁹³ See, for example, Hospitals Contribution Fund (Australia) v Hunt (1983) 76 FLR 408; Hooker Corporation Ltd v Darling Harbour Authority (Supreme Court of NSW, Rogers J, 7 May 1987, unreported); Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Harbours Corporation (Qld) v Vessey Chemicals (1986) 67 ALR 100; and Commonwealth v Northern Land Council (1991) 103 ALR267.

⁹⁴ P Finn, above n 1 at 93.

⁹⁵ M Aronson and N Franklin, above n 33 at 402 (footnotes omitted). Aronson and Franklin further note that the only significant disclosure of high-level government information was in Sankey v Whitlam “in which the government had no secrets left to keep” (at 402).

⁹⁶ (1990) 24 FCR 576; 102 ALR 110.

⁹⁷ The notebooks in question contained discussions of Cabinet meetings concerning pre-contractual negotiations between the Commonwealth and the NLC. Cabinet notebooks are used as an aide-memoire by three notetakers (senior public servants) to enable themto prepare Cabinet minutes after each meeting. They are not, however, official records of Cabinet meetings, nor do they necessarily record all who attend a Cabinet meeting, nor do they represent a verbatim transcript: (1991) 103 ALR 267 at 277 per Black CJ, Gummow and French JJ. Cabinet notebooks are not available under s 4 of the FOI Act (Cth) which was amended in the wake of the Full Federal Court decision in the Northern Land Council case: see A Cossins, “Uranium Mining, Cabinet Notebooks and Redundant Amendments to the Commonwealth FOI Act” (1994) 52 Freedom of Information Review 27. They are available under the Archives Act 1983 (Cth) but not for a period of 50 years after their creation; this new period also arose by way of amendment in the wake of the Full Federal Court decision. This period “will be sufficient to ensure that any sensitivities arising from the nature of the notebooks will have receded, which is another way of saying notebooks should not be released until all the participants are dead, or nearly so”: Canberra Times 13 January 1993.

⁹⁸ (1991) 103 ALR 267 at 279 per Black CJ, Gummow and French JJ.

⁹⁹ Ibid at 282 per Black CJ, Gummow and French JJ.

¹⁰⁰ Ibid.

¹⁰¹ Ibid.

¹⁰² Ibid.

¹⁰³ Ibid at 296 per Black CJ, Gummow and French JJ.

¹⁰⁴ Ibid at 295 per Black CJ, Gummow and French JJ.

¹⁰⁵ Ibid at 288 per Black CJ, Gummow and French JJ.

¹⁰⁶ Ibid at 286 per Black CJ, Gummow and French JJ.

¹⁰⁷ I G Eagles, “Cabinet Secrets as Evidence” (1980) Public Law 263 at 267. In fact, what collective responsibility is really about is that Ministers “tell the same story in public” (ibid at 267) so that breach of the convention can only be said to occur if there has been disagreement which disclosure of Cabinet documents would reveal. As such, disclosure of Cabinet decisions or minutes not documenting points of disagreement would not constitute a breach of the convention: ibid.

¹⁰⁸ (1991) 103 ALR 267 at 298 per Black CJ, Gummow and French JJ.

¹⁰⁹ Ibid at 304 per Black CJ, Gummow and French JJ. This is contrary to the position in England (see Burmah Oil [1980] AC 1090 and Air Canada [1983] AC 394) which the Federal Court considered turned on a differently worded rule for ordering the production of documents for inspection (RSC 024, r13): (1991) 103 ALR 267 at 302 per Black CJ, Gummow and FrenchJJ.

¹¹⁰ Ibid at 302 per Black CJ, Gummow and French JJ.

¹¹¹ S B McNicol, above n 2 at 409-410 (footnotes omitted).

¹¹² (1991) 103 ALR 267 at 304 per Black CJ, Gummow and French JJ.

¹¹³ Ibid at 304-305 per Black CJ, Gummow and French JJ.

¹¹⁴ A AS Zuckerman, above n 33 at 255.

¹¹⁵ (1990) 24 FCR 576 at 589; 102 ALR 110 at 123 per Jenkinson J.

¹¹⁶ TR S Allan, above n 71 at 206-207.

¹¹⁷ (1991) 103 ALR 267 at 280 per Black CJ, Gummow and French JJ (quoting Jenkinson J).

¹¹⁸ Around 1980, the Commonwealth ceased to have a commercial interest in the mining venture since the authorised mining bodies, Peko-Wallsend Operations Ltd, Electrolytic Zinc Co of Australasia and the Australian Atomic Energy Commission assigned their respective interests to Energy Resources of Australia: Northern Land Council v Commonwealth (1986) 161 CLR 1 at 5. The Atomic Energy Amendment Act (No 2) 1980 (Cth) was enacted to ensure the validity of the assignment.

¹¹⁹ (1985) 35 DLR (4th) 161 at 188 (emphasis in original).

¹²⁰ See Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 104-106 per Deane and GaudronJJ.

¹²¹ (1993) 176 CLR 604 at 616 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ (footnotes omitted).

¹²² Ibid at 618 Mason CJ, Brennan, Deane, Dawson, Gaudron and McHughJJ.

¹²³ Ibid.

¹²⁴ Ibid at 616 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ (emphasis added).

¹²⁵ [1968] AC 910 at 952.

¹²⁶ (1978) 142 CLR 1 at 40.

¹²⁷ Ibid at 97.

¹²⁸ I G Eagles, above n 107 at 269 (footnotes omitted).

¹²⁹ M Aronson and N Franklin, above n 33 at 362-363 (emphasis in original; footnotes omitted).

^l30 I G Eagles, above n 107 at 264.

¹³¹ Ibid.

¹³² I am grateful to Peter Bayne for this observation.

¹³³ Re Eccleston & Department of Family Services & Aboriginal & Islander Affairs (1994) 1 QAR 60 at 100-101 per the Information Commissioner.

¹³⁴ Commonwealth v John Fairfax & Sons Ltd (1980) 32 ALR 485 at 493 per Mason J; this comment was made in relation to an action to prevent the publication of confidential information.

¹³⁵ Theophanous (1994) 124 ALR 1 at 11 per Mason CJ, Toohey and Gaudron JJ.

¹³⁶ Australian Capital Television (1992) 177 CLR 106 at 138 per Mason CJ.

¹³⁷ Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 548 per Lord Keith.

¹³⁸ Theophanous (1994) 124 ALR 1 at 58 per Deane J. See also Australian Capital Television (1992) 177 CLR 106 at 140 per Mason CJ; and at 231 per McHugh J.

¹³⁹ Sankey v Whit/am (1978) 142 CLR 1 at 42 per Gibbs ACJ.

¹⁴⁰ In Vessey the claim of immunity was unsuccessful since no secret processes of Cabinet were to be disclosed by releasing documents described as “perfectly conventional documents of a commercial type”: (1986) 67 ALR 100 at 105 per Pincus J.

¹⁴¹ Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 at 169 per Priestley JA quoted in Hooker Corporation Ltd v Darling Harbour Authority (Supreme Court of NSW, Rogers J, 7 May 1987, unreported) at 7 per Rogers J.

¹⁴² Hooker Corporation Ltd v Darling Harbour Authority (Supreme Court of NSW, Rogers J, 7 May 1987, unreported) at 7 per Rogers J.

¹⁴³ Ibid at 4 per Rogers J.

¹⁴⁴ Ibid.

¹⁴⁵ Ibid at 7.

¹⁴⁶ Ibid at 9.

¹⁴⁷ Northern Land Council v Commonwealth (1993) 176 CLR 604 at 616 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁴⁸ Northern Land Council v The Commonwealth (1986) 161 CLR 1; Northern Land Council v The Commonwealth (No 2) (1987) 61 ALJR 616.

¹⁴⁹ Hooker Corporation Ltd v Darling Harbour Authority (Supreme Court of NSW, Rogers J, 7 May 1987, unreported) at 7 per Rogers J.

¹⁵⁰ I G Eagles, above n 107 at 267.

¹⁵¹ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁵² Ibid at 617 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ (emphasis added).

¹⁵³ Ibid at 618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁵⁴ Ibid.

¹⁵⁵ Ibid at 617 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁵⁶ Ibid (emphasis added).

¹⁵⁷ Ibid at 618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ (emphasis added).

¹⁵⁸ Sankey v Whit/am (1978) 142 CLR 1 at 62 per StephenJ.

¹⁵⁹ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁶⁰ P Finn, above n 1 at 93.

¹⁶¹ Sankey v Whitlam (1978) 142 CLR 1 at 60per StephenJ.

¹⁶² M Aronson and N Franklin above n 33 at 358-359.

¹⁶³ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 619-620 per MasonCJ Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁶⁴ T R S Allan, above n 71 at 216.

¹⁶⁵ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ.

¹⁶⁶ Ibid at 627 per Toohey J.

¹⁶⁷ 015, r 11, Federal Court Rules; see Commonwealth v Northern Land Council (1993) 176 CLR 604 at 632 per Toohey J.

¹⁶⁸ That Cabinet documents attracted absolute immunity from disclosure, “an immunity which cannot yield to competing aspects of the public interest”: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 628 per Toohey J.

¹⁶⁹ Sankey v Whit/am (1978) 142 CLR 1 at 95-96 per Mason J.

¹⁷⁰ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 631 per Toohey J. His Honour did, however, advert to the possibility that where the documents are of “such 'high level governmental public interest' ... the public interest immunity should prevail without any examination of the documents”: at 636 (footnotes omitted).

¹⁷¹ That if immunity was not absolute then a threshold test was required to be met by the NLC to justify application of the balancing test: ibid at 628 per Toohey J.

¹⁷² Ibid at 631 per Toohey J.

¹⁷³ Ibid at 632 per Toohey J.

¹⁷⁴ (1986) 35 DLR 161 (4th).

¹⁷⁵ Ibid at 192.

¹⁷⁶ TR S Allan, above n 71 at 215.

¹⁷⁷ Commonwealth v Northern Land Council (1993) 176 CLR 604 at 637 per TooheyJ.

¹⁷⁸ Ibid at 639 per Toohey J.

¹⁷⁹ Ibid at 638-639 per Toohey J.

¹⁸⁰ Note, “The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive?” (1982) 91 Yale L J 570 at 581.

¹⁸¹ Re Eccleston (1994) 1 QAR 60 at 73 per the Information Commissioner.

¹⁸² Queensland, Report of a Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (1989) (the Fitzgerald Report); and Western Australia, Report of the Royal Commission into Commercial Activities of Government and Other Matters (1992).

¹⁸³ Fitzgerald Report, above n 182 at 126 (emphasis added).

¹⁸⁴ Theophanous (1994) 124 ALR 1 at 11 per Mason CJ, Toohey and Gaudron JJ.

¹⁸⁵ Ibid at 57 per Deane J (footnotes omitted).

¹⁸⁶ Australian Capital Television (1992) 177 CLR 106 at 139 per MasonCJ.

¹⁸⁷ Re Eccleston (1994) 1 QAR 60 at 74 per the Information Commissioner.

¹⁸⁸ See ss 33A, 36, 39, 40, 41 and 43(1)(c)(i) FOI Act (Cth).

¹⁸⁹ Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 106 per Bowen CJ and Beaumont J; Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 at 178 per Davies, Wilcox and Einfeld JJ.

¹⁹⁰ Re Porter and Department of Community Services and Health (1988) 8 AAR 335; 14 ALD 403.

¹⁹¹ This exemption and others (which can be characterised as “class” claims) reflect traditional categories of documents that are sought to be protected from disclosure so as to protect '"the confidentiality and inviolability of the class as a whole”: A A S Zuckerman, above n 33 at 269.

¹⁹² See, eg, Re Waterford and Director-General of Health (1983) 5 ALN N303.

¹⁹³ H Rep Deb 1981, Vol 124 at 42.

¹⁹⁴ SB McNicol, above n 2 at 410-411 (emphases added).

¹⁹⁵ A Cossins, “The Public Interest under Freedom of Information” in R Douglas and M Jones (eds), Administrative Law: Cases and Materials (1993) at 151.

¹⁹⁶ P Bayne, “Exemptions under the Freedom of Information Act 1982” (1983) 14 FL Rev 67 (citations omitted).

¹⁹⁷ P Bayne, Freedom of Information (1984) at 94.

¹⁹⁸ P Bayne, ibid at 70. For example, the Committee was able “to justify its view that all claims of exemption should be reviewable by an independent body...[by] point[ing] to the [High] Court's assertions that, first, there were no classes of documents which were protected automatically from disclosure in litigation, and secondly, that the courts could review any claim of public interest privilege”: P Bayne, ibid at 70.

¹⁹⁹ Senate Standing Committee on Constitutional and Legal Affairs above n 56 at 58. Nonetheless, the Committee considered that despite those differences “a comparison between the Sankey case and the Bill is unavoidable if not essential”: ibid at 59.

²⁰⁰ Ibid.

²⁰¹ P Bayne, above n 196 at 105 (footnotes omitted).

²⁰² Ibid.

²⁰³ Ibid.

²⁰⁴ Ibid (emphasis in original). See also Re Lianos & Secretary to the Department of Social Security (1985) 2 AAR 503; 7 ALD 475.

²⁰⁵ Re Eccleston (1994) 1 QAR 60 at 101 per the Information Commissioner.

²⁰⁶ Ibid. The Information Commissioner made this comment in the context of criticising the Commonwealth AAT for adopting PII principles for the purposes of determining the question of whether disclosure would be contrary to the public interest under the Commonwealth FOi Act.

²⁰⁷ As suggested by P Bayne, above n 196 at 106.

²⁰⁸ P Finn, above n 1 at 163.

²⁰⁹ An applicant's “personal interest” in seeking government-held information is more correctly described as an applicant's “right to know”. The public interest in and protection of a person's right to know what information the government holds on him or her as well as the protection of the disclosure of personal information to anyone other than the applicant are recognised facets of the public interest under the FOI Act, (see s 3 and s 41, the personal privacy exemption). The right to know is analogous to the public interest under PH in preventing injury to the litigant from the withholding of evidence. The interest of the applicant (the right to know) has been recognised in relation to the disclosure of personal records in Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534; Re Burns and ANU (No 2) (1985) 7 ALD 425; Re James and ANU (1984) 6 ALD 687; Re Boehm and Department of Industry, Technology and Commerce (1985) 7 ALN N186; Re Colakovski and Australian Telecommunications Commission (1991) 22 ALD 44; affirmed on appeal in Colakovski v Australian Telecommunications Corporation (1991) 29 FLR 429; 100 ALR 111; Re Stewart and Telstra Corporation (Commonwealth AAT, 15 April 1994, unreported); see also Re Kamminga and ANU (1992) 15 AAR 297. Bayne has observed: “[T]he particular interest of an applicant may be a crucial element of a more general interest...[t]hat is, through the benefit to the individual will flow a benefit to all members of the community”: P Bayne, above n 197 at 102.

²¹⁰ For example, in relation to high-level government documents, a facet of the wider public interest in open government would be an assessment of the extent to which government accountability will be furthered, since it is at the highest levels of government decision making that accountability is most crucial.

²¹¹ T R S Allan, above n 71 at 208.

²¹² See, for example, Re Heaney and the Public Service Board (1984) 6 ALD 310, wherein the AAT stated that, “It is entirely consistent with the stated object of the Act (see s 3) that a person should be entitled to have access to information ... that may disclose whether a statutory body ... has acted within the proper bounds of its lawful authority”: at 323; see also Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 and Re Prosser and Australian Telecommunications Corporation (1989) 17 ALD 389.

²¹³ Senate Standing Committee on Constitutional and Legal Affairs above n 56 at 220-221.

²¹⁴ P Bayne, above n 197 at 20 (footnotes omitted).

²¹⁵ Ibid at 21.

²¹⁶ Re Eccleston (1994) 1 QAR 60 at 86 per the Information Commissioner. See also more recently P Bayne, “Freedom of Information and Political Free Speech” in T Campbell and W Sadurski (ed ), Freedom of Communication (1994) 199.

²¹⁷ (1992) 177 CLR 106 at 137-139.

²¹⁸ Re Eccleston (1994) 1 QAR 60 at 86 per the Information Commissioner (emphasis added).

²¹⁹ Ibid.

²²⁰ (1993) 31 ALD 214.

²²¹ Ibid at 218 per O'Connor J.

²²² P Bayne, “Freedom of Information and Democracy: a Return to the Basics?” (1994) 1 Australian Journal of Administrative Law 107 at 110.

²²³ Bayne, above n 216 at 204-207.

²²⁴ Theophanous (1994) 124 ALR 1 at 14 per Mason CJ, Toohey and Gaudron JJ.

²²⁵ Ibid at 15.

²²⁶ Australian Capital Television (1992) 177 CLR 106 at 150.

²²⁷ P Bayne, above n 216 at 207.

²²⁸ Theophanous (1994) 124 ALR 1 at 17 per Mason CJ, Toohey and Gaudron JJ and at 44-45 per Deane J. See also Australian Capital Television (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.

²²⁹ Theophanous (1994) 124 ALR 1 at 45 per Deane J. See also Australian Capital Television (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.

²³⁰ Theophanous (1994) 124 ALR 1 at 11 per Mason CJ, Toohey and Gaudron JJ. The type of speech that is protected by the implied freedom of communication will be that speech which is directly related to the “efficacious working of representative democracy and government” (ibid at 13 per Mason CJ, Toohey and Gaudron JJ). “[T]hefreedom implied by the Australian Constitution indicates that there is a significant difference between that freedom and an unlimited freedom ofexpression and that difference, though it does not lend itself to precise definition, is capable of being ascertained when the occasion to do soarises”: ibid at 14 per Mason CJ, Toohey and Gaudron JJ.

²³¹ These being the various ways the five members of the High Court who constituted the majority in Australian Capital Television and Nationwide limited the freedom of communication: Theophanous (1994) 124 ALR 1 at 11 per Mason CJ, Toohey and Gaudron JJ (footnotes omitted).

²³² Theophanous (1994) 124 ALR 1 at 12 per Mason CJ, Toohey and Gaudron JJ. See also Australian Capital Television (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.

²³³ Theophanous (1994) 124 ALR 1 at 12 per Mason CJ, Toohey and Gaudron JJ.

²³⁴ Ibid at 16-17 per Mason CJ, Toohey and Gaudron JJ (emphasis added).

²³⁵ Ibid at 55 per Deane J.

²³⁶ Ibid at 17, per Mason CJ, Toohey and Gaudron JJ.

²³⁷ Australian Capital Television (1992) 177 CLR 106 at 174 per Deane and Toohey JJ.

²³⁸ Ibid at 138-139 per Mason CJ.

²³⁹ Theophanous (1994) 124 ALR 1 at 20 per Mason CJ, Toohey and Gaudron JJ (emphasis added).

²⁴⁰ Australian Capital Television (1992) 177 CLR 106 at 142 per MasonCJ.

²⁴¹ Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283-284 per Lord Goff,quoted in Theophanous (1994) 124 ALR 1 at 56 per Deane J.

²⁴² (1984) 6 ALD 83.

²⁴³ (1992) 36 FCR 111.

²⁴⁴ (1984) 6 ALD 83 at 84 per Bowen CJ and Fisher J.

²⁴⁵ Ibid at 85.

²⁴⁶ See, for example, Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626; Kavvadias v The Commonwealth Ombudsman (No 2) (1984) 6 ALD 198; Re Bracken and Minister of State for Education and Youth Affairs (1985) 7 ALD 243; Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113; Re Reith and Attorney-General's Department (1986) 11 ALD 345; Re Porter and Department of Community Services and Health (1987) 14 ALD 403; Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264.

²⁴⁷ (19B6) 160 CLR 145. The High Court had dealt with the issue, inter alia, of whether a presumption in favour of disclosure should be imported into the Freedom of Information Act 1982 (Vic) based on the objects section of the Act (s 3).

²⁴⁸ (1992) 36 FCR 111 at 114 per Davies, Wilcox, and Einfeld JJ.

²⁴⁹ Ibid at 115.

²⁵⁰ Arnold v Queensland (1987) 73 ALR 604 at 626 per Burchett J, quoted ibid.

²⁵¹ Re Cleary and Department of Treasury (1993) 31 ALD 214 at 218 per O'Connor J, referring to the applicant's argument.

²⁵² Ibid.

²⁵³ Ibid.

²⁵⁴ Perrin (1993) 31 NSWLR 606 at 625 per Kirby P. Ibid at 625-626 (emphases added).

²⁵⁶ Ibid at 626 per Kirby P.

²⁵⁷ Ibid at 627 per Kirby P.

²⁵⁸ This view is to be compared with that of Mahoney JA, who stated that the exceptions to and qualifications on the right of access under the NSW FOI Act “were embodied in the terms of the legislation” and these were the only ones to be enforced. As such, his Honour considered that the precise terms of the personal affairs exemption “should govern the extent of the remedy available”, indicating a narrower approach to the Act's interpretation: ibid at 640 per Mahoney JA.

²⁵⁹ Sobh v Police Force of Victoria [1994] 1 VR 41 at 60.

²⁵⁹ Ibid at 61 per Ashley J.

²⁶¹ The applicant, a journalist with The Australian, applied to the Department of Family Services and Aboriginal and Islander Affairs for access to documents relating to “assessment or advice of the consequences for the Queensland Government of the recent decision of the High Court in the Mabo case”: Re Eccleston (1994) 1 QAR 60 at 63 per the Information Commissioner. Access was granted to 64 of 124 pages of material relating to the terms of the request and 60 pages were withheld under various exemptions of the Queensland FOI Act: ss 36, 41, and 43. The decision to withhold the information was affirmed on internal review. On appeal to the Information Commissioner, the applicant decided to press for access only in relation to the documents claimed to be exempt under s 41, the internal working documents exemption.

Re Eccleston (1994) 1 QAR 60 at 87 per the Information Commissioner. Under the Commonwealth FOI Act, the public interest test, as a key element for the determination of whether a document can be withheld under the internal working documents exemption (s 36) is akin to the balancing test under PII. Like that test, the exemption carries with it no presumption (in contrast to a number of other exemptions) that disclosure of the particular documents that fall within s 36(l)(a) would be contrary to the public interest, since the public interest sought to be protected by s 36 is not expressly delineated by reference to the type of document being requested; thus there is no presumption that disclosure of internal working documents will be contrary to the public interest. The public interest or the contents question under s 36(1)(b) involves an examination of the effect of disclosing the contents of a document falling with s 36(1)(a), as well as the more general effects of disclosure on the overall decision-making processes of an agency: Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626.

²⁶² Re Eccleston (1994) 1 QAR 60 at 87 per the Information Commissioner. Under the Commonwealth FOI Act, the public interest test, as a key element for the determination of whether a document can be withheld under the internal working documents exemption (s 36) is akin to the balancing test under PII. Like that test, the exemption carries with it no presumption (in contrast to a number of other exemptions) that disclosure of the particular documents that fall within $\mathrm{s} 36(1)(\mathrm{a})$ would be contrary to the public interest, since the public interest sought to be protected by s 36 is not expressly delineated by reference to the type of document being requested; thus there is no presumption that disclosure of internal working documents will be contrary to the public interest. The public interest or the contents question under s $36(1)(b)$ involves an examination of the effect of disclosing the contents of a document falling with s $36(1)(a)$, as well as the more general effects of disclosure on the overall decision-making processes of an agency: Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626.

²⁶³ Re Eccleston (1994) 1 QAR 60 at 113 per the Information Commissioner

²⁶⁴ Ibid at 115 per the Information Commissioner.

²⁶⁵ Fitzgerald Report, above n 182 at 126.

²⁶⁶ Re Eccleston (1994) 1 QAR 60 at 83 per the Information Commissioner.

²⁶⁷ Ibid at 85 per the Information Commissioner.

²⁶⁸ D Feldman, “Democracy, the Rule of Law and Judicial Review” (1990) 19 FL Rev lat 4.

²⁶⁹ Re Eccleston (1994) 1 QAR 60 at 85 per the Information Commissioner.

²⁷⁰ Ibid at 86 per the Information Commissioner (emphasis added).

²⁷¹ Ibid (emphasis added).

²⁷² Ibid at 74 per the Information Commissioner.

²⁷³ Ibid.

²⁷⁴ This comment was made with reference to the majority decision in the Northern Land Council case, a proposition that is questionable in light of the analysis of that decision in this article.

²⁷⁵ Re Eccleston (1994) 1 QAR 60 at 75 per the Information Commissioner. Clearly, it must then be the role of the external review body to be able to assess through the application of an over-riding public interest test, the circumstances when the balance of the public interest (based on the democratic justifications for FOi) will lie in favour of disclosure.

²⁷⁶ Ibid at 96 per the Information Commissioner.

²⁷⁷ Ibid at 111 per the Information Commissioner.

²⁷⁸ Ibid.

²⁷⁹ Ibid at 96 per the Information Commissioner.

²⁸⁰ Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 at 634.

²⁸¹ Re Eccleston (1994) 1 QAR 60 at 103 per the Information Commissioner.

²⁸² Re Howard (1985) 7 ALD 626 at 634.

²⁸³ Re Eccleston (1994) 1 QAR 60 at 102 per Information Commissioner.

²⁸⁴ Re Howard (1985) 7 ALD 626 at 634.

²⁸⁵ Re Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266 at 271.

²⁸⁶ Re Howard (1985) 7 ALD 626 at 634.

²⁸⁷ Re Eccleston (1994) 1 QAR 60 at 119 per the Information Commissioner.

²⁸⁸ Ibid at 120 per the Information Commissioner.

²⁸⁹ As discussed in the introduction, the exception to this proposition is the internal working documents exemption (s 36) to the extent that high-level documents, not covered by ss 33, 34 or 35, will fall within the exemption. The exception arises because of the necessity of justifying that disclosure would be contrary to the public interest under s 36(l)(b). Nonetheless, see A Cossins, above n 23 and Re Eccleston (1994) 1 QAR 60 for a critique of the restrictive application of the public interest test under s 36.

²⁹⁰ Note, above n 180 at 581.

²⁹¹ See, s 61 FOI Act (Cth) and Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 at 169; 36 FCR 111 at 116 per Davies, Wilcox and Einfeld JJ.

²⁹² P Bayne, above n 197 at 94.