Mr Bayne in addressing the topic of the exemptions under the Freedom of Information Act 1982 (“FOI Act“) has concentrated his analysis on and dealt at some length with, the provisions of Part IV - Exempt Documents.

To achieve a balanced understanding of the role and significance of the exemptions I believe one needs in addition to see how the FOI Act fits into the broader context of arrangements for access to official information.

There are other qualifications and limits set on the application of the “legally enforceable right” in s II which might also be considered usefully in the context of exemptions.

It is in addition important as Mr Bayne has indicated in dealing with, for example, s 36 to take account of the requirements of ss 8 and 9 of the FOI Act if the application of Part IV is to be seen in proper context.

I propose therefore to address these matters before commenting on selected issues raised by Mr Bayne with respect to particular exemptions in Part IV.

Victoria was the first and, to date, the only Australian State to enact freedom of information legislation. The Freedom of Information Act (“FOI Act”) was passed by the Victorian Parliament in late 1982 and came into operation on 5 July 1983. The legislation was a major part of the Australian Labor Party's 1982 Victorian election platform and an early law reform initiative of the new Government.

Before examining the exemptions in the Act, I will outline the background of the Victorian legislation. This will indicate the various influences on the final form of the legislation and explain both the similarities and divergences between the Commonwealth and Victorian Acts.

In the exercise of discretionary power there is no general duty to give reasons in the absence of a statutory requirement. This common law rule may be traced in part to a line of cases which.stand for the proposition that where the discretionary power of the administrator is conclusive as to the existence of the grounds for its exercise, the courts cannot scrutinise the reasons—any errors are within jurisdiction. For example in Allcroft v Lord Bishop of London the respondents argued that the reasons which the Bishop was required by the statute to state, disclosed irrelevant considerations. The House of Lords rejected an application for mandamus.

The availability of reasons for decisions is an important part of recent developments in Commonwealth administration. As Mrs Burnett’s scholarly analysis shows, these developments have not been without their uncertainties. I would like to pursue a few of the issues raised in her paper and mention some issues associated with providing reasons for decisions in the Repatriation area.

There is much to be said for a person affected by a decision having a right to obtain full written reasons for the decision. This enables the person affected to find out why the particular decision has been made. It may also provide a possible basis for challenge to the decision. As Mrs Burnett notes, the need to give reasons has also been described as encouraging consistency and better quality in decision-making.

It has been a very polite seminar so far and the reasonableness of the public servants who have spoken has been noteworthy. May I just inject a slight note of scepticism, based probably upon the number of years one has sought access to information on behalf of clients, and been refused; and sought to challenge decisions when there have been no reasons given. Perhaps more importantly I have been involved in cases where either the other side or my own side has made claims for Crown privilege. I think those of us who have been involved in cases where Crown privilege was claimed in pre Sankey v Whitlam days will appreciate that those claims were very often very poorly based. I am not speaking simply of Commonwealth authorities, my greater experience is with the various State authorities. I think it is also fair to say that Sankey v Whitlam has not received universal approval at all levels of the public service both Commonwealth and State. We now sometimes have the opportunity of actually seeing the documents that have been withheld because of the high public interest involved. This cannot help but make us rather sceptical because they are often very routine in their nature.

This is the fourth in the series which the Faculty of Law of the Australian National University has organised around the theme “Australian Lawyers and Social Change”. At the outset, I should congratulate the Faculty and especially Professor Pearce for the persistence with the series. Anything done to confront lawyers in Australia with the consequences and implications of a time of rapid social change is to be applauded. I speak for all participants in thanking the lead speakers and commentators. Theirs have been valuable and timely contributions. Especially, I would wish to thank Professor Glen Robinson (University of Virginia, United States) and Mr Stephen Skelly QC (Department of Justice, Ottawa, Canada) for enlivening the proceedings with insights from the two great English-speaking Federations, with whose legal systems we have so much in common.