Melbourne Law School - Theses
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ItemThe place of freedom of information legislation in civil litigation : new discoveries - old ways( 1990)In completing one discovery we never fail to get an imperfect knowledge of others of which we had no idea before, so that we cannot solve one doubt without creating several new ones'. Discoveries can be of many kinds; the word is one full of portent. It will be the aim of this paper to review the development and current status of documentary discovery in civil litigation and the impact, both actual and potential, of the introduction of freedom of information legislation on the discovery process as we know it and on the adversary system which is the foundation of the litigative process itself and of which discovery is, in conventional understanding, merely an adjunct. The emphasis will be on civil proceedings, although issues arising from criminal procedures may become relevant. The term discovery will be used in this work to refer to the discovery of documents in civil litigation and not, unless specifically stated, to other discovery devices such as interrogatories or oral examination. The much vaunted and rapidly developing information revolution experienced this century, in conjunction with the increasing complexity of our society and its social and commercial relationships, has,in a manner which lawyers of earlier centuries would never have contemplated, immeasurably increased our reliance on documentary evidence in all forms of civil litigation. We cannot even point to the development of the so called "paperless" office as an indication that our reliance on documentary material will diminish. The expanded definition of "document" to be found in legislation such as the Acts Interpretation Act 1901 (Cth), Interpretation of Legislation Act 1984 (Vic) and in freedom of information legislation indicates that. Yet discovery as we know it is only a recent development when viewed in terms of the history of our legal system, based as it is on English law and procedure. Before examining the more recent developments in discovery and the impact of the freedom of information acts, it is useful to briefly examine the origins and development of the discovery process.
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ItemPublic interest in the exemption provisions of the Freedom of Information Act 1982 (cth)( 1991)There are arguably at least four situations where public interest considerations have a role in the exemption provisions in the Freedom of Information Act 1982 (Cth). Firstly, there is an argument that public interest considerations provide the basis for the presence of each of the exemption provisions in the Act as an essential public interest. Secondly, it may also be argued that some of the exemption provisions also require consideration of the public interest as a separate element in deciding whether a document ought to be exempt from disclosure. This arises from the reference in sections 33, 33A, 36, 39, 40 and 44 to `public interest'. Thirdly, assuming that public interest can be a separate element for consideration in one or more of these provisions, it can be argued that in such circumstances it looks in general terms to ensuring the well-being of the Australian community through balancing public interests which are relevant to a resolution of the tension between openness and confidentiality. However, questions arise as to the more specific function/s which public interest performs in particular exemption provisions. Fourthly, there may also be an argument that public interest considerations are reflected in the operation of exemption provisions even where the concept is not explicitly referred to.