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Tuesday, 10 September 1985
Page: 353

Senator Gareth Evans —On 16 May 1985 (Hansard, page 2070) Senator Puplick asked me, as Minister representing the Attorney-General, a question without notice relating to an Administrative Appeals Tribunal decision under the Freedom of Information Act 1982.

The Attorney-General has provided me with the following additional information in answer to Senator Puplick's question:

The decision of the Administrative Appeals Tribunal to which Senator Puplick referred is Re Joyce E. Shewcroft and the Australian Broadcasting Corporation (27 February 1985). The Tribunal considered the operation of section 24 of the Act which permits agencies and Ministers to refuse an applicant access to documents if giving access would substantially and unreasonably divert resources from other operations.

One of the issues before the Tribunal was whether the motive of the applicant could be taken into account in applying this provision. Contrary to the impression which the honourable senator has of the finding of the Tribunal, the Tribunal did not find that the request was made in order to embarass the Australian Broadcasting Corporation. On the contrary, the Tribunal found that the applicant had a genuine personal interest in the information in question and that access might also serve the public interest. Without holding that it was necessarily entitled to do so, the Tribunal took this into account in the applicant's favour but nevertheless still upheld the claim of the Corporation to refuse the request on the basis of section 24 of the Act. Since, to the extent to which the Tribunal took motive into account the applicant was favoured in reaching its decision, there was no occasion to consider an appeal.

In its Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (paragraph 8.1), the Senate Standing Committee on Constitutional and Legal Affairs said: `The premise on which the whole Freedom of Information Bill is constructed is that access to information is a matter of right and not something which is dependent on a showing of interest or need to know in any particular case'. In introducing the Freedom of Information Bill 1978 in the Senate the Attorney-General, Senator Durack, said: `Access to information under the Bill will not depend on the person seeking access having to show a special interest in obtaining information. Lack of a special interest will not be a ground on which information can be withheld' (Hansard 9 June 1978, page 2689). In introducing the Freedom of Information Amendment Bill 1983 in the Senate on 2 June 1983 the Attorney-General, Senator Evans, did not refer to the question whether the motive of applicants is a matter to be taken into account by tribunals and courts.

Since there has been no decision of the Tribunal or of the Courts which is contrary to the principle in issue, the question of amending the Act as suggested by the Honourable Senator does not arise. There are cases in which the Tribunal has suggested that the Act should be applied in favour of persons having access to documents relating to their own affairs, but that is not regarded as being in breach of the principle referred to-see the 1983-1984 Annual Report by the Attorney-General on the Freedom of Information Act, paragraph 4.7.3. At the same time it should be noted that the motive of an applicant in seeking access to documents may be relevant to the question whether access should be given as an exercise of discretion even though the request might otherwise properly be refused under an exception or exemption in the Act. Moreover, it may also be relevant to the question of remission of charges payable under the Act.