The title of this seminar reminds us of the extraordinary increase in access to information of all kinds which has overtaken us. This enhanced access to information is the chief gift bestowed on us by the information revolution of the past 15 or 20 years. And its gift has been an abundant one; some might describe it as over abundant, fearing lest the relevant be submerged in a great tidal wave of unco-ordinated information. This fear echoes the thought which lies behind TS Eliot’s lines when he wrote, “Where is the wisdom we have lost in knowledge? Where is the knowledge we have lost in information?”.

Clearly enough, mere information, now proffered to us in such profusion is only the raw material of knowledge. But so long as we recognise that information is only the raw material from which knowledge derives, not confusing information with knowledge, and so long as we are skilful in our use of the electronic tools which the information revolution has given us, narrowly focussing our retrieval processes, the raw material which information consists of can be precious stuff indeed.

It is a tenable view of Commonwealth v Tasmania that as a matter of ratio decidendi it added nothing to the judicial construction of the Commonwealth's external affairs powers (Constitution ss 51(xxix) and 61) which was not already adumbrated in R v Burgess; ex parte Henry (in 1936) and clearly established in Koowarta v Bjelke-Petersen (in 1982). In this range of cases, attention is concentrated on circumstances in which the Commmonwealth claims power to enact and implement laws having a domestic application within Australia which would not be valid unless they were made in pursuance of an international agreement to which the Commonwealth is a party. There are other circumstances in which the external affairs power will support Commonwealth laws, and these are mentioned in all the Franklin Dam and Koowarta opinions, but hitherto the case illustration of such valid laws has been minimal. It has been hitherto assumed, though not explicitly stated, that international agreements and their implementation in Australia constitute a distinct subdivision or aspect of the legal rules in question.

The purpose of this paper is to examine the significance of the Franklin Dam case for the use of implications in the interpretation of the Commonwealth Constitution.

Implications of various kinds, derived from various sources, are regularly made in the interpretation of the Constitution. The necessity for them has been frequently acknowledged. In West's case, for example, Dixon J said:

Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine.'

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.

My comment on Professor Sawer’s paper is confined to three matters: the executive power of the Commonwealth to conclude treaties on behalf of Australia; the relevance of the subject matter of a treaty to the scope of Commonwealth legislative power to implement the provisions of the treaty; and the concept of federalism inherent in the High Court’s decision in the Franklin Dam case.

That such a power now exists is indisputable. Its ambit alone must yet be resolved. Its restrictions, that is, activities denied to an exercise of the power, must be those that apply generally to legislative powers. A noncoercive power is no power – an absurd proposition – and no reason exists to confine the power to one extending only to permit Commonwealth funds to be drawn from its Treasury. The true rule is stated by Mason J.

Every implied power arises from constitutional language, history or political reality. Thus, in the United States, powers over aliens, the Indian tribes, foreign relations and the compulsory requisition of private property derive from implication based on history and political reality. This is explained in the Curtiss-Wright case. Australia differs from the United States in three relevant respects: it is not a union of states; Commonwealth powers were not granted to it by the States; and there is, and there never was, dual Commonwealth-State citizenship.

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.

I begin this paper with a disclaimer: it does not pretend to be a definitive study of freedom of information in Australia. Rather, it presents the experience of an official who has been concerned with the development of the Commonwealth freedom of information legislation from the time it first appeared on the political agenda in Australia; who has taken part in hundreds of hours of discussion and debate on the topic by officials; who has shared in much of the academic consideration of the subject; who has drafted a score of Cabinet submissions on the subject for consideration by Ministers; who has worked closely with three Attorneys-General on the matter; who has both formally and informally canvassed a wide range of issues with members of a Senate Committee, and who has spent long hours with one of our best parliamentary counsel in the business of translating concepts into legislation which, it is hoped, is reasonably workable.

Let me start on a note of consensus, if not reconciliation. I am certain that we all agree that there would be no one else as well equipped to give the opening paper for this seminar as is Lindsay Curtis. He is well equipped by direct experience, by close knowledge, by personal commitment, and at the same time not least by an ability to stand back from the unfolding of a complicated bit of business and assess what has been going on. His paper is the ideal source of ideas, but in speaking to it I will be able to pursue only one or two.

As this is a seminar arranged by the Law School, it would only be appropriate to start with a text from WS Gilbert. In Act One of that understandably neglected work, “Utopia Limited”, there enters a character named Tarara who explains his constitutional function thus:

The emphasis given in the Engineers’ case to the express terms of the Constitution, the application ofthe “golden rule” of construction and the exclusion of broad implications (stigmatised as political) had the effect of enhancing national power. This effect was reinforced by the application of the principle referred to by O'Connor J in a now much quoted passage in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association:

… it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

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.

I want to mention one implication of the views of the minorities in Koowarta and the Franklin Dam case.

Suppose that a State had agreed to the Commonwealth incurring an international obligation (or had even requested it to do so) on a matter such as racial discrimination or the natural heritage. Suppose that, after Australia had incurred the obligation, the State refused to enact legislation needed to fulfil Australia’s international obligation. Or suppose that the State repealed legislation already enacted for that purpose. If the Commonwealth lacked power to implement the international obligation, such State action would result in Australia being left “high and dry” in breach of that obligation.

This possibility of a “backsliding” State, leaving the nation in breach of treaties entered into with State agreement, would be a totally unacceptable position. No doubt the High Court majority in the Franklin Dam case saw this implication of the States’ arguments. The majority’s wide view ofthe external affairs power was the only course available, by means of judicial interpretation, to prevent this from happening.

The legislation enacted to prevent the construction of the Franklin Dam relied on a number of federal legislative powers which included the corporations power and the races power in ss 51(xx) and 51(xxvi) of the Constitution respectively. In contrast to most of the other sections in the Constitution which confer legislative power on the Commonwealth Parliament those sections refer to persons or institutions. In a well-known passage in Stenhouse v Coleman, Dixon J (as he was then) said:

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object.

My first and quite unnecessary comment is that if anyone can speak with authority about Freedom of Information (“FOI”) in Australia and about the origins of the Commonwealth’s Freedom of Information Act in particular it surely is Mr Lindsay Curtis. I recall many of the events of 1973 onwards into 1979 when I retired from the Public Service. Especially I recall the long haul that was commenced in 1973 with the assistance of Mr Tony Mondello, the legal adviser to the United States Civil Service Commission, and that eventually reached fruition in 1982 with the passage of the FOI Act. All through that period Lindsay Curtis was more closely associated than any other public servant with the project. He has given us the benefit of that experience in an interesting, able and fluent paper.

My second and equally obvious comment is that the FOI Act is here to stay. Lindsay Curtis has said we are undergoing a revolution. I believe the revolution has already taken place. Some of us may find it rather difficult to live with the consequences.

Being the last speaker of the day I suppose has advantages and disadvantages. One disadvantage is that, as I had anticipated, much of what I would have wished to say about the Franklin Dam case has been said — and well said — by earlier speakers. One advantage, however, is that I may now speak substantially without fear of contradiction — perhaps the “infallibility offinality”, as it has sometimes been called, is not the exclusive province of the High Court! In any event, I will confine myself to some very general remarks — not so general, I hope, as to be trite, but general enough, at least, to put some of the points we have heard earlier today into perspective.

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.

Enactment of the United States Freedom of Information Act (“FOI Act”) in 1966 was a landmark event in the history of American administrative law. Among the most important of American administrative law reforms, the FOI Act has engendered a veritable cottage industry devoted to securing access to government-held information. In the sixteen-plus years since the Act went into effect Congress has twice amended the Act and is currently considering yet another round of amendments. Each occasion has engendered a new round of studies and commentaries on the Act, its purposes and effects.

The attention given to the subject by Congress pales in comparison to the attention given it by the courts. A September 1981 list shows more than 1300 decisions construing the FOI Act, and companion laws: the Privacy Act, Sunshine Act and Federal Advisory Committee Act.

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.