Arber and Centrelink

[2008] AATA 366

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0181

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRENDA IRENE ARBER

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date6 May 2008

PlaceHobart

Decision The decision under review is affirmed.

[Sgd C R Wright QC]

Deputy President

CATCHWORDS

Freedom of Information Act 1982, section 37(1)(b)

Re Dale and Australian Federal Police (1997) 47 ALD 417

REASONS FOR DECISION

6 May 2008 The Hon C R Wright QC (Deputy President)     

1.      The Applicant seeks disclosure of an unedited copy of a Centrelink "Tip-Off" document dated 14 December 2007, an edited copy of which is included in the Section 37 ("T") Documents as T8.  The edited copy was disclosed to the Applicant by direction of a Centrelink review officer following internal review of the Applicant's original application under the Freedom of Information Act 1982.

2.      The review officer declined to make a complete copy of the document available to the Applicant on the ground that, although the informant who had provided material which had been included in the Tip-Off document did not provide his or her identity to Centrelink, the circumstances of and the content of the material disclosed were such as to possibly enable the Applicant to deduce the identity of that person.

3. The Applicant's request was therefore refused (in part) on the basis that the section of the document withheld from the Applicant constituted an "exempt" document pursuant to section 37(1)(b) of the Freedom of Information Act 1982.

4.      The Applicant's application for review of the Centrelink determination came before the Tribunal at Launceston on Friday 11 April 2008.  The Applicant presented her own case.  The Respondent was represented by Mr Sparkes.

5.      It was apparent, and uncontested, that the allegations made against the Applicant in the Tip-Off document had not been substantiated, despite appropriate enquiries and investigations having been carried out by Centrelink.  The Applicant contended that, insofar as she was aware of the allegations appearing in the edited copy of the Tip-Off document they were untrue.  She also contended that insofar as any undisclosed allegations contained in the document obviously had not been proved to Centrelink and it should be inferred that they too were lies.

6. On this basis she contended that the Tip-Off document could not be regarded as "a confidential source of information in relation to the enforcement and administration of the law" and thus the document could not be regarded as an exempt document under section 37(1)(b).

7.      Unfortunately for the Applicant there is substantial authority to the contrary of this proposition.  The relevant principle was well stated by Deputy President McMahon in Re Dale and Australian Federal Police (1997) 47 ALD 417 @ 420, where he said, referring to s37(1)(b) of the FOI Act:

"The paragraph is intended to protect the basis of confidentiality, which is essential to ensure the cooperation of sources of information. On the face of the documents, the sources are clearly confidential. It is not necessary, in considering a claim made under this paragraph, to examine the truth or even the reliability of the information attributed to the confidential source. The paragraph clearly supports the public policy that information given on the basis of confidence can be valuable in administration of the criminal law and that if this attribute of confidentiality cannot be guaranteed and subsequently enforced, then the whole mechanism is endangered. The purpose of the exemption is to preserve this assurance of confidentiality. Once the nature of the relationship is established, there is no more to be said:.

Similar views have been expressed in subsequent decisions of the Tribunal.  Some of these decisions are referred to in the Respondent's Statement of Facts and Contentions but there is no need to refer to them individually.  I agree with the opinion expressed by McMahon DP in Dale's case.

8.      The Applicant also expressed concern that, if, the records of Centrelink containing the false allegations against her are not erased or deleted in some way, her character and reputation will be seriously and unfairly besmirched without redress.  She agreed that she had been made aware of her right to make a written application to amend the record but took the view that it was incumbent upon Cehntrelink to make a relevant amendment without the necessity for her to take any positive action to achieve that outcome. 

9.      I pointed out to the Applicant that, as she had not made an application to amend, and as Centrelink had not made any decision in relation thereto, I had not jurisdiction to take the action she requested, viz to direct an appropriate amendment or deletion of the record.  At the conclusion of the Tribunal hearing however, counsel for the Respondent indicated a willingness to assist the Applicant if, upon reconsideration, she was prepared to make such an application.  After some discussion this appeared to be a course which the Applicant was now likely to follow, so it seems probable that her concerns in relation to this aspect of the matter (which appeared to be of major importance to her) can now be satisfactorily resolved. 

10.     However, in formal terms, the Applicant's application to review presently before the Tribunal cannot succeed, and consequently, the decision under review must be affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  11 April 2007
Date of Decision  6 May 2008
Solicitor for the Applicant          Applicant on her own behalf
Solicitor for the Respondent    Mr B Sparkes, Centrelink Legal Services

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