Bell and Secretary, Department of Health (Freedom of Information)
[2015] AATA 494
•9 July 2015
Bell and Secretary, Department of Health (Freedom of information) [2015] AATA 494 (9 July 2015)
Division GENERAL DIVISION
File Number 2014/3834
Re WILLIAM BELL
APPLICANT
And SECRETARY, DEPARTMENT OF HEALTH
RESPONDENT
And ROBERT DE CASTELLA’S SMARTSTART FOR KIDS LIMITED
PARTY JOINED
DECISION
Tribunal Deputy President S A Forgie
Date 9 July 2015
Place Melbourne
The Tribunal has decided:
(1)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 7 and 9 and noting that the respondent does not press a claim that they are exempt:
(a)to set aside the decision; and
(b)to substitute a decision that:
(i)Documents 7 and 9 are not exempt under the FOI Act; and
(ii)the Department must give the applicant access to those documents;
(2)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 1, 2, 6 and 10:
(a)to set aside the decision; and
(b)to substitute a decision that:
(i)Documents 1, 2, 6 and 10 are not conditionally exempt under the FOI Act and that access to them would not be contrary to the public interest; and
(ii)the respondent must give Mr Bell access to those documents; and
(3)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 5 and 8, to affirm the decision.
…[sgd] S A Forgie…
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – conditional exemption claimed - business – whether disclosure would affect person adversely – access in public interest – access not given where access is open to the public in a public register under another enactment and subject to a fee – decision varied
LEGISLATION
Acts Interpretation Act 1901; section 2C
Corporations Act 2001; sections 307C, 1274
Corporations (Fees) Act 2001; sections 4, 5, 6
Financial Management and Accountability Act 1997; section 44
Freedom of Information Act 1982; sections 4, 11, 11A, 11B, 12, 22, 27, 31B, 47G, 54W, 57A, 60AA, 61Human Rights Commission Act 2005 (ACT)
Corporations (Fees) Regulations 2001; regulation 3, Sch 1
CASES
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97
Bell v de Castella & Anor (Civil Dispute) [2014] ACAT 3
Bell v Robert de Castella & Anor (Appeal) [2014] ACAT 65
Director of Public Prosecutions v Smith [1991] VicRp 6; 1 VR 63; (1991) 100 FLR 6
Evans v Federal Commissioner of Taxation [1989] FCA 205; (1989) 20 ATR 922
Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 29 ATC 4,261; 9 ATR 873
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 41 AAR 23; 88 ALD 12
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; 4 ALD 139
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
Re Bell & De Castella and Rob De Castella’s SmartStart For Kids Ltd(Discrimination) [2013] ACAT 27
Re Bell & Decastella and Rob de Castella’s SmartStart for Kids Limited (Discrimination) [2013] ACAT 66
Re Bell & Robert De Castella and Rob de Castella’s SmartStart for Kids Limited (Discrimination) [2014] ACAT 9
Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163
State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549; 26 ALR 341
Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, Version 1.3, October 2014
REASONS FOR DECISION
On 19 November 2013, Mr John Bell made a request to the then Department of Health and Ageing, now named the Department of Health, (Department) for access to documents under the Freedom of Information Act 1982 (FOI Act). The documents he has requested are those referred to by Mr Robert de Castella in his final written submission to the ACT Civil and Administrative Appeals Tribunal (ACAT) Lennard in proceedings No. DT11/27 together with a letter referred to in the reasons for decision dated 26 April 2013 and delivered by Senior Member Lennard.[1] The proceedings concerned two complaints made by Mr Bell to Australian Capital Territory’s Human Rights Commissioner (HRC) under the Human Rights Commission Act 2005 (ACT) (the HRC Act) on or about 20 December 2010 and on 16 January 2012.
[1] Re Bell & De Castella and Rob De Castella’s SmartStart For Kids Ltd (Discrimination) [2013] ACAT 27 in proceedings No. DT11/27 and 12/01.
By the time of the hearing, seven documents remained in dispute between them as to whether or not they, or parts of them, were exempt under the FOI Act and there was a question whether two further document came within the scope of Mr Bell’s request. The Department claimed that the seven documents were conditionally exempt under s 47G(1)(a) and that access to them would, on balance, be contrary to the public interest. The Department did not pursue its claims for exemption of Documents 5 and 8 and I have decided that they are not exempt. For the reasons I set out below, I have decided that Documents 1, 2, 6 and 10 are not conditionally exempt under that provision and that, even if they were, disclosure under the FOI Act would not be contrary to the public interest within the meaning of s 11A(5) as elucidated by s 11B. I have set aside the Department’s decision in so far as it denied access to those documents. With regard to Documents 5 and 8, I have decided that, as Mr Bell may, on payment of a fee or charge, obtain those from the Australian Securities and Investments Commission (ASIC), the effect of s 12(1)(b) of the FOI Act is that he is not entitled to access to them. Therefore, I have affirmed the Department’s decision in relation to Documents 5 and 8.
THE REQUEST
Mr Bell requested access to the following documents:
“(1) DoHA letters dated 14 May 2012 and 27 September 2012.
(2)copies of all ‘income and expenditure statements’ received and submitted by SmartStart for Kids Ltd in the Indigenous Marathon project
(3)copies of all correspondence between the ACAT Senior Member (or her Tribunal staff) and DoHA in relation to the grants in question”.[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 37
DEPARTMENT’S DECISION ON REQUEST
On 12 February 2014, an officer of the Department authorised to make decisions on behalf of the Secretary advised Mr Bell that she had identified 20 documents falling within the terms of his request. She decided to give access to eight documents in their entirety and refused access to the remaining 12 documents. Refusal was based on one or more of four grounds. Two grounds were that the documents concerned were exempt under either or both of ss 45 and 47G(1)(a). A third ground was that Mr Bell was not entitled to access because, for a fee or other charge, the document was open to public access in accordance with an enactment. That ground is provided for in s 12(1)(b). The fourth ground, set out in s 22(1)(a)(ii), was that giving Mr Bell access to a document would disclose information that would reasonably be regarded as irrelevant to his request.
INFORMATION COMMISSIONER’S DECISION
Mr Bell applied to the Information Commissioner (IC) for review of the decision. On 19 May 2014, the IC decided that the interests of the administration of FOI make it desirable that the decision be reviewed by the Tribunal. He made that decision under s 54W(b) but it did not mean that the matter was referred automatically to the Tribunal. Mr Bell had to make an application as he was permitted to do by s 57A(1)(b). Mr Bell applied within 28 days of receiving the IC’s notice of his decision under s 54W(b)[3] and paid the application fee as required by the Administrative Appeals Tribunal Regulations 1976.
[3] FOI Act; s 57A(2)(b)
Mr BELL’S APPLICATION TO THE TRIBUNAL
As required by s 60AA(1) of the FOI Act, the Department took reasonable steps to notify Robert de Castella’s SmartStart for Kids Limited (Smartstart) of Mr Bell’s application to the Tribunal. Its obligation arose because the Department had made a decision to refuse access to one or more documents to which a consultation requirement applied under, in this case, s 27. Section 27 applied if a request were made for a document containing business information in respect of a person, organisation or undertaking. Section 60AA(1) applied when a request was made to an agency or Minister and required the Department to consult Smartstart once it appeared to it that Smartstart or its proprietor might reasonably wish to contend that the documents, or some of them, were conditionally exempt under s 47G and access to them would, on balance, be contrary to the public interest under s 11A(5).
DOCUMENTS SUBJECT TO APPLICATION
Documents not in dispute
When the matter came on for hearing, the Department indicated that it no longer claimed that Document 7 is exempt. That is a document dated December 2010 written by Price Waterhouse Cooper (PWC). It is an Independent Audit Report on Statement of Eligible Expenditure to the Directors of Rob de Castella’s Smartstart for Kids Limited. It is a “Statement of Eligible Expenditure for the period 1 July 2009 to 30 June 2010” and numbered D14 236669. Smartstart did not maintain its objection to Mr Bell’s being given access to that document.[4]
[4] Affidavit of Francois Robert de Castella sworn on 20 November 2015 at [29]
Documents in dispute
On 9 March 2015, the Department lodged a schedule of the documents remaining in dispute.[5] Those in relation to which the Department consulted with SmartStart are noted in the following table:
[5] The Department and Smartstart agreed that Mr Bell should be given access to Document 7 and that the decision should be set aside in so far as it decided that the document was exempt. Document 7 was written by PWC and was an Independent Audit Report on Statement of Eligible Expenditure to the Directors of Rob de Castella’s Smart Smartstart for Kids Limited or a “Statement of Eligible Expenditure for the period 1 July 2010 to 30 June 2011” (D14-236669).
No.
Date
Author
Addressee
Description
Consultation
Documents subject of review and sought by Mr Bell
1
14/05/12
M Machutta
DepartmentSmartstart
Letter – Request to review the Indigenous Marathon Project
(D14-236661)Yes
2
27/09/12
C. Krestenson
DepartmentSmartstart
Letter – Outcome of the review of the Indigenous Marathon Project
(D14-2366662)Yes
3
16/06/2010
R de Castella
H Eastburn
Page 25 of the Marathon Project – Final Report – A Healthy Lifestyle Initiative for Remote Indigenous Communities – June 2010
(D14-236663)Copy of Doc 4 with marks
Yes
4
16/06/2010
R de Castella
H Eastburn
Page 25 of the Marathon Project – Final Report Summary – A Healthy Lifestyle Initiative for Remote Indigenous Communities – June 2010
(D14-236665)Copy of Doc 3 without marks
Page 26: Copy of Doc 3, page 26
6
07/2010-04/2011
R de Castella
Not specified
The Indigenous Marathon Project Unaudited Statement of Expenditure 1 July 2010 through April 2011
(D14-236667)9
12/12/12
PWC
Not specified
Pages 3 and 4 of
Compilation Report to the Directors of Rob de Castella’s Smart SmartStart for Kids Limited
“Statement of Eligible Expenditure for the period 1 July 2010 to 30 June 2011”
(D14-236671)10
09/02/12
R de Castella
H Eastburn
Page 14 of
Indigenous Marathon Project Progress Report 2-9 February 2012
(D14-236672)Document considered not in scope of Mr Bell’s FOI request
A
06/12/12
PWC
Smartstart
Final Report to Directors for Year Ended 30 June 2010 (provided confidentially to the Department).
The basis for the claim that it is not within the scope of the FOI request is that it is not an income and expenditure statement.
Yes
Subsequently, in an affidavit sworn on 16 March 2015, Mr de Castella stated that he no longer claimed that Documents 3, 4, 7, 11 and 12 were exempt and consented to Mr Bell’s being given access to them. That left Documents 1, 2, 6 (part), 9 (part, page 3) and 10 (part, page 14) together with Documents 5 and 8, which do not appear in the table. It is SmartStart’s position that these are available to Mr Bell by way of the data base maintained by the ASIC and so is not accessible under the FOI Act.
BACKGROUND TO REQUEST
A person’s reasons for seeking access to documents or an agency’s or Minister’s belief as to what those reasons are do not affect the person’s right of access in any way at all.[6] Reasons for seeking access are different from the background against which documents are requested. In some cases, and particularly in those cases in which a request for access arises from an ongoing dispute, the context in which the documents were brought into existence may assist in understanding the documents themselves.
[6] FOI Act; s 11(1)
SmartStart and the Indigenous Marathon Project
On the basis of Mr de Castella’s Affidavit affirmed on 20 November 2014, I find that he is a Director of SmartStart, which is a not for profit company limited by guarantee. SmartStart is also a registered health promotion charity with the Australian Charities and Not for Profit Commission (ACNC) and with the Australian Taxation Office (ATO) to provide deductible gift recipient benefits to donors. Its primary focus is to run programmes designed to combat obesity in children of primary school age. Between late 2009 and 30 June 2013, SmartStart developed and ran the Indigenous Marathon Project (IMP). Since 1 July 2013, The Indigenous Marathon Project Foundation Limited (IMPF) has taken over responsibility for the IMP. IMPF is also a health promotion charity registered with the ACNC and is registered with the ATO so that donations to it are tax deductible. Mr de Castella is also a Director of IMPF.
Since 2009, a group of young Indigenous men and women are chosen to train for and participate in the New York Marathon. The first group participated in the New York Marathon in 2010. In all, 42 young people have achieved this. In addition to their training for the New York Marathon, IMP participants complete a Certificate in Leisure and Health. Their efforts are used to celebrate Indigenous resilience and achievement and they become role models and leaders in their communities and families in addressing chronic disease and social issues such as incarceration, suicide, drug and alcohol addiction, substance abuse and violence.
As part of the IMP, there are fun runs known as Deadly Fun Runs organised by IMP graduates or local IMP partnership organisations and volunteers. Communities select representatives to participate each year in the National Deadly Championships held each year at Uluru. SmartStart, I find, relies on grant funding and donations to run its programmes, which include IMP.
Funding agreements between the Commonwealth and SmartStart
On the basis of a letter written by the Department to the IC on 20 June 2013, I find that the IMP is funded and managed as part of the Healthy Lifestyle measure of the Indigenous Chronic Disease Package. The project is ongoing.[7] The same letter stated that funding totalling $2,150,879, had been provided for the IMP through the execution of three Standard Funding Agreements. The individual amounts shown in the letter and reflecting those in the Standard Funding Agreements were:
$187,291 under a Standard Funding Agreement executed on 28 April 2010;
$313,974 under a Standard Funding Agreement executed on 19 October 2010; and
$1,649,614 under a Standard Funding Agreement executed on 7 June 2011.[8]
The first two payments were the subject of a Media Release announcing the allocation of $500,000 over two financial years. The allocation was made in relation to initiatives incorporating the IMP.
[7] Exhibit A at Attachment B
[8] This payment was made at a time outside the period covered by Mr Bell’s request.
Proceedings between Mr Bell and SmartStart and Mr de Castella
There have been five previous decisions by ACAT regarding proceedings instituted by Mr Bell against either SmartStart or Mr de Castella. They are:
(1)Re Bell and De Castella and Rob de Castella’s SmartStart for Kids Limited (Discrimination)[9] (ACAT Case One):
[9] [2013] ACAT 27; Senior Member Lennard
The ACT’s Human Rights and Discrimination Commissioner referred Mr Bell’s complaint alleging discrimination to ACAT which concluded:
“ACAT is not satisfied on the balance of probabilities Mr de Castella or SmartStart have committed any unlawful act relevant to the Human Rights Commission Act or the Discrimination Act.”[10]
[10] [2013] ACAT 27 at [123]
(2)Re Bell & Decastella and Rob de Castella’s SmartStart for Kids Limited (Discrimination):[11]
[11] [2013] ACAT 66; Senior Member Lennard
“In all the circumstances, the Tribunal is satisfied that there are circumstances or matters of sufficient weight which justify a departure from the presumptive rule that each party should bear their own costs. In all the circumstances, it is reasonable that the applicant should pay those costs of the respondents which arise from an unreasonable delay or obstruction caused by the applicant.”[12]
[12] [2013] ACAT 66 at [20]
(3) Bell v de Castella & Anor (Civil Dispute):[13]
[13] [2014] ACAT 3; Senior Member Corby
Mr Bell claimed moneys from one or both of the defendants as moneys due to him as an employee from 1 April 2009 to 15 November 2010. The Tribunal concluded that a differently constituted ACAT had previously decided “… that an agreement existed between Mr Bell and the respondent that Mr Bell would volunteer his services for the project from time to time and that he would be reimbursed for expenses that he incurred upon the provision of receipts.” Therefore:
“Given that these issues, fundamental to the claim by the applicant in XD13/522, were decided in the matter of XD11/145, they are res judicata. Based on the findings by Professor Spender the applicant cannot succeed. Application XD13/522 is, therefore, dismissed.”[14]
(4)Re Bell & Robert De Castella and Rob de Castella’s SmartStart for Kids Limited (Discrimination):[15]
Mr Bell lodged an appeal against the decisions made by Senior Member Lennard. Following an application by the respondent, ACAT ordered that this appeal be removed to the ACT Supreme Court under s 83(2) of the Civil and Administrative Tribunal Act 2008 (ACT). It made that order on 16 December 2013 and gave written reasons following Mr Bell’s written request for them on 30 December 2013.
(5) Bell v Robert de Castella & Anor (Appeal):[16]
Mr Bell appealed against the decision made by Ms W Corby, Senior Member, dismissing his application for the recovery of monies. His appeal was dismissed.
[14] [2014] ACAT 3 at [24]
[15] [2014] ACAT 9; Ms Symons, Presidential Member
[16] [2014] ACAT 65; Mr C.G. Chenoweth OAM; Acting Presidential Member
In this case, the background was summarised in the reasons for decision of Senior Member Lennard in ACAT Case One[17] when she said:
“10. Rob de Castella’s SmartStart for Kids Limited (SmartStart) is a not-for-profit, public company limited by guarantee. As well as the Indigenous Marathon Project, SmartStart delivers primary school based health programs funded by the ACT government. Mr de Castella is one of three directors of SmartStart and the project director for the Indigenous Marathon Project. The Indigenous Marathon Project commenced in early 2009. The ultimate publicised aim of the project was to train indigenous athletes to run in the New York Marathon in November 2010. The project had other aims: film production company GoodOil Films produced a one-hour documentary following the project in its first year (the notion of producing the documentary was the catalyst for the development of the project); and to promote running and walking within indigenous communities, and healthier lifestyles. Workshops and courses in health and fitness education and assessment were developed specifically for indigenous people, including indigenous marathon runners.
11.The applicant gave evidence that he was an internationally qualified coach with specialist skills and experience over forty-five years. Mr Bell is an inductee into the Central Australian Desert Foundation League of Champions Sports Hall of Fame in relation to his AFL team coaching, individual athlete coaching and marathon running feats in remote communities. Mr Bell worked extensively with athletes with special needs, including paralympic athletes; at every level of indigenous sport from desert to elite at the Australian Institute of Sport over a period of forty-five years and has international team-leading skills and experience as head coach and team manager for numerous world athletic championships. Mr Bell gave evidence of a long association with Mr de Castella and his family including, but not limited to, Mr Bell coaching Mr de Castella’s daughter in marathon running. The applicant s evidence as to his coaching qualifications and experience within indigenous sporting communities was accepted by the respondents and the tribunal.
12.From 1 April 2009 to 15 November 2010, the applicant was engaged as coach of the marathon runners. The applicant was not paid a salary or wages, however, he was provided with expenses, a laptop computer and mobile phone. The alleged discrimination arises from the nature of that engagement, the alleged conduct of Mr de Castella during the course of that engagement, and, the termination of that engagement.
13.The parties have been in dispute since the end of 2010. Apart from the 2 matters currently before the ACAT, similar issues have been ventilated before the Fair Work Commission and in a civil dispute contract application before ACAT. There have also been proceedings in the ACT Magistrates Court between Mr de Castella and Mr Bell.”
[17] [2013] ACAT 27
OUTLINE OF LEGISLATIVE PROVISIONS
Subject to the provisions of the FOI Act, every person has a legally enforceable right to obtain access in accordance with it to a document of an agency or an official document of a Minister other than an exempt document.[18] A document may be an “exempt document” for one of three reasons given in the definition of that expression in s 4(1). The reason that is relevant in the context of this case is the first i.e. that it is exempt for the purposes of Part IV of the legislation. A document is exempt for the purposes of Part IV if it is either an exempt document under Division 2 of that Part or is conditionally exempt under Division 3 and access to it would, on balance, be contrary to the public interest for the purposes of s 11A(5).[19]
[18] FOI Act; s 11(1)
[19] FOI Act; s 31B(b)
Burden of proof
In accordance with s 27, the Department consulted SmartStart as it was, in the circumstances, required to do when it appeared to it that SmartStart might reasonably wish to contend that the documents requested by Mr Bell were conditionally exempt under s 47G and that access to them would, on balance, be contrary to the public interest for the purposes of s 11A(5).[20]
[20] FOI Act; s 27(1)(b)(ii)
Generally, an agency or Minister has the onus of establishing that a decision it has made on a request for access to a document is justified. When proceedings under Part VIIA relate to a decision to give access to a document to which a consultation requirement, such as that under s 27, applies, the position is different. If the person consulted under s 27 in relation to the application of the exemption under s 47G – the affected third person[21] – is a party to the proceedings in the Tribunal, that person has:
“… the onus of establishing that:
(a) a decision refusing to give access to the document is justified; or
(b) the Tribunal should give a decision adverse to the person who made the relevant request.”[22]
[21] FOI Act; s 53C(1) and item 2
[22] FOI Act; s 61(2)
In a case such as this, the onus in s 61(2)(a) is clearly the relevant onus when reviewing a decision to refuse access to a document that comes within the terms of the request. Arguably, it might also be the onus that is relevant when considering a decision to refuse access to a document on the basis that it falls outside the terms of a request or on workload factors. Given the onus provided for in s 61(2)(b), though, it may be that decisions regarding the scope of the request and workload factors are more appropriately the subject of s 61(2)(b) than s 61(2)(a). That may follow from the fact that they are decisions that are made (either expressly or implicitly) as precursors to any decision regarding access to any particular document that has been identified as coming within the terms of a request. While they may be characterised as decisions refusing to give access to the document, it may be that they are more properly analysed as decisions regarding the scope of the request or workload considerations as the case may be.
I have not pursued this distinction further for I have concluded that, whether the onus in ss 61(2)(a) or (b) applies to a particular decision, the task of the third party remains the same. Under s 61(2)(a), the affected third party has the “onus of establishing that … the decision is justified”. Under s 61(2)(b), that party has the “onus of establishing that … the Tribunal should give a decision adverse to the person who made the relevant request.” To “justify” means “1 to prove or show something to be right, just or reasonable. …”.[23] A decision can only be right, just or reasonable, and so “justified”, if it accords with the law and with the evidentiary material that is available. The Tribunal should only give a decision adverse to the person who made the relevant request if it is right to do so according to the law and the evidentiary material that is available to it. The onus is on the third party to ensure that the Tribunal is given the evidentiary material on which it may make its decision.
[23] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
The rationale for that lies in the fact that it will be the third party who has been consulted under ss 26A, 26AA, 27 or 27A will be in the best position to know both the contents of the document and the repercussions of disclosure. That is the position in which SmartStart, which was consulted under s 27, finds itself. It carries the onus of establishing that disclosure of a document under the FOI Act would, or could reasonably be expected to have, the effect on its business affairs of a kind specified in s 47G. SmartStart knows the contents of the documents, its business and what it sees as the consequences of disclosure.[24]
[24] The same rationale applies when s 61(1) imposes an onus on the agency or Minister when no compulsory consultation requirement applies under ss 26A, 26AA, 27 or 27A.
Neither ss 61(1) nor (2) prescribes a standard of proof by which the Tribunal must decide whether the decision refusing access to a document is justified or whether a decision adverse to the person who made the request should be made. Unless varied by the terms of a particular enactment, the Tribunalmakes any findings of fact on the basis that it is reasonably satisfied of them.[25] What is meant by the expression “reasonable satisfaction” in this context has been explained by Beaumont J, with whom Northrop and Spender JJ agreed, in Repatriation Commission v Smith.[26] His Honour said that the Tribunal:
“... should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87).”[27]
[25] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; 4 ALD 139 at 62; 155-156 per Deane J, with whom Evatt J agreed; Smithers J dissenting.
[26] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
[27] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17 at 335; 547; 26
CONSIDERATION
In this section of my reasons, I will set out each of the relevant legislative provisions in turn followed by my understanding of them and their application on the evidence in this matter. I note that, apart from Documents 5 and 8, the only provision under which exemption is claimed for the documents remaining in dispute is s 47G. That is a conditional exemption which means that the Department must give access to them unless access would, on balance, be contrary to the public interest.[28] In relation to Documents 5 and 8, they are claimed to be outside the documents to which Mr Bell is entitled to access on the basis that they are already open to public access and the FOI Act does not apply to them.
[28] FOI Act; s 11A(5)
Conditional exemption: s 47G
Section 47G comes within Division 3 of Part IV and so provides for the circumstances in which a document will be conditionally exempt. Section 47G(1) provides:
“A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a)would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b)could reasonably be expected to prejudice the future supply of information to the Commonwealth, Norfolk Island or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.”[29]
[29] Section 47G does not apply to trade secrets or other information to which s 47 applies: FOI Act; s 47G(2). Information does not concern a person in respect of his or her professional affairs merely because it is information concerning his or her status as a member of that profession: FOI Act; s 47G(5).
Section 47G(1) will not apply to a document to the extent that it contains information in respect of the business or professional affairs of the person who has requested the document. It does not apply to a document to the extent that it contains information in respect of the business, commercial or financial affairs of an undertaking or organisation where the request is made by the proprietor of the undertaking or organisation or a person acting on their behalf.[30]
[30] FOI Act; ss 47G(3) and (4)
The substance of s 47G(1) mirrors that previously in the FOI Act of s 43(1)(c) and the qualifications in ss 47G(2), (3) and (4) find their counterparts in the previous provisions of ss 43(2), (3) and (4). Where there has been a change is in the classification of s 47G as a conditional exemption. That introduces separate consideration of the public interest under s 11A and raises the question whether access to the document would, at the time, be contrary to the public interest. Previously and before the introduction of either ss 11A or 47G, s 43(1)(c) required a consideration of the public interest. It did so by virtue of requiring there to be a reasonable expectation that disclosure under the FOI Act would “unreasonably affect that person adversely …” in one or other of the stated ways. Whether there would be that outcome required consideration to be given not only to the effect of disclosure upon the person’s lawful business or professional affairs or those of an organisation but to whether that was a reasonable effect given whatever might be the public interest in disclosure. Given that, in enacting s 47G(1), Parliament has chosen not to move away from the words of s 43(1)(c), it seems to me that it has intended to retain all of the nuances inherent in the word “unreasonably” when considering what would, or could reasonably be expected to be, the effect of disclosure of a document under the FOI Act. In view of that, I have returned to the principles established by the courts regarding the interpretation of s 43(1)(c).
A. Characterisation of information that would be disclosed
The first issue to decide is whether the document comes within the terms of s 47G(1). In that case, that means deciding whether its disclosure under the FOI Act would disclose information concerning the business, commercial or financial affairs of an organisation. If it would, it is then necessary to consider whether disclosure would have one or other of the effects set out in s 47G(1)(a) or (b) or, as previously enacted, ss 43(1)(c)(i) or (ii).
The word “affair” is a reference to “… a concern, matter or thing to be done. … An event or connected series of events. …”.[31] In s 43(1)(c), the type of “affairs” to which reference is made is qualified by their being “business or professional” in relation to a person and the “business, commercial or financial affairs” in relation to an organisation or undertaking.
[31] Chambers
That takes me to the words that qualify the word “affairs”. “Business” carries with it connotations of trade of goods and services as well as that of, among others, “… a regular occupation, trade or profession. … the things that are one’s proper or rightful concern. …”. In this context, the adjective “Commercial” means “… 1 relating to, engaged in or used for commerce. 2 profitable; having profit as the main goal …”. “Commerce” means “1a the buying and selling of commodities and services; b trade, including banking and insurance …”. “Financial” is something “… relating to finance or finances …” and so to “… money affairs and the management of them …”.[32]
[32] Chambers
To some extent, the meaning of the words overlap but I think it important to distinguish between the “business or professional affairs” of a person and the “business, commercial or financial affairs” of an organisation or undertaking for two reasons. The first is that the distinction between the two must mean that the reference to a “person” is a reference to an individual rather than to a “person” in its more wider sense, which includes a body politic and a body corporate as well as an individual.[33]
[33] Acts Interpretation Act 1901, s 2C
The second goes to the scope of the exemption in s 43(1)(c)(i). The word “business” has the same meaning in relation both to a person and to an organisation or undertaking but the omission of any reference to “commercial or financial affairs” in relation to a person indicates its limits. Unless commercial or financial information can be classified as concerning a person in respect of his or her business or professional affairs - and it can be - it is not exempt. That is not the case for an organisation or undertaking.
The meaning of what a “business” entails is one thing but it is another to identify whether a particular activity, or series of activities, constitutes a business. Whether it does:
“… is a matter of fact and degree. … [E]ach case depends upon its own facts …
There is no one factor that is decisive of whether a particular activity constitutes a business. As Jessel MR said in the famous dictum in Erichsen v Last (1881) 8 QBD 414 at 416:
There is not, I think, any principle of law which lays down what carrying on trade is. There are a multitude of things which together make up the carrying on of trade.
Profit motive…, scale of activity, whether ordinary commercial principles are applied characteristic of the line of business in which the venture is carried on …, repetition and a permanent character, continuity …, and system, are all indicia to be considered as a whole, although the absence of any one will not necessarily result in the conclusion that no business is carried on.”[34]
The scale of the activity need not be large although that will be a factor in determining whether an activity is a hobby rather than a business.[35]
[34] Evans v Federal Commissioner of Taxation [1989] FCA 205; (1989) 20 ATR 922 at [96]-[98]; 939 per Hill J
[35] Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 79 ATC 4,261; 9 ATR 873 at [16]; 318; 4,268; 880 per Fisher J
There is a question whether information in respect of “business … affairs”, or even of “commercial or financial affairs” would encompass information relating to steps taken before a person, organisation or undertaking could be said to be carrying on a business. It is a question that has been addressed in other contexts[36] and may need to be kept in mind in the context of s 43(1)(c)(i), might be the FOI Act. It is not, however, a question that arises in this case.
[36] See, for example, Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 79 ATC 4,261; 9 ATR 873 at [23]; 312; 4,266; 878 per Bowen CJ and Franki J
Once a person is carrying on or engaged in a business so that he or she can be said to have “business … affairs”, matters preparatory to conducting or being engaged in that business may well be able to be categorised as “being in respect of his or her business … affairs” or, in the case of an organisation or undertaking “concerning the business … affairs” of that organisation or undertaking. That follows from the words of connection adopted in s 43(1)(c)(i) between the person and the business affairs and between the organisation or undertaking and its business affairs. In the former, the words of connection are “in respect of”. That is an expression denoting:
“… a relationship or connexion between two things. In State Government Insurance Office v Crittenden … Taylor J quoted, with evident approval, the remarks of Mann CJ in Trustees Executors & Agency Co Ltd v Reilly …, ‘The words “in respect of” are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer’. … But, as with other words or expressions, the meaning to be ascribed to ‘in respect of’ depends very much on the context in which it is found.”[37]
In the case of an organisation or undertaking, the expression chosen is that of “concerning”:
“… ‘Concerning’ has been defined as ‘regarding’, ‘touching’, ‘in reference or relation to’, and ‘about’. It is, accordingly, a word of wide import …”[38]
[37] State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549; 26 ALR 341; Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at [15]; 561; 351 per Mason J and see also Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45; Brennan, Deane, Dawson, Toohey and Gaudron JJ at 47 per Brennan, Deane and Dawson JJ
[38] O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285 at 303 per Rolfe J
If the finding is made that there is no business but only the steps preparatory to there being a business, thought will have to be given to whether the information can be characterised as “being in respect of his or her business … affairs” or, in the case of an organisation or undertaking “concerning the business … affairs” of that organisation or undertaking. Even if it cannot be characterised in that way, that does not necessarily mean that a document is not exempt in respect of that information. In the case of an organisation or undertaking, it may be that the information is in connection with its financial, if not its commercial, affairs. There is no latitude to do that in the case of an individual for the exemption extends only to business affairs and not to commercial or financial affairs but the information may be exempt under s 47F in relation to personal information.
B.“Would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her business affairs …”
Principles that are relevant in considering the interpretation and application of the expression “would, or could reasonably be expected” show that the words are interpreted according to their ordinary meaning:
(1)“… [T] they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) [or s 43(1)(c)(i), which is to like effect in this regard] as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J).”[39]
(2)“… stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[40]
[39] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97 at 190; 106 per Bowen CJ and Beaumont J
[40] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97 at 196; 112 per Sheppard J
Section 47G requires that disclosure of a document would, or could reasonably be expected to “unreasonably affect” a person adversely in respect of his or her business affairs or an organisation or undertaking in respect of its lawful, business, commercial or financial affairs. When this same expression was considered in the related context of s 43 of the FOI Act as it was previously enacted, the following factors were identified as relevant when considering whether disclosure under the FOI Act would or could reasonably be expected to “unreasonably affect”:
“If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 441.”[41]
[41] Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163 at [52]; 125; 178 per Davies, Wilcox and Einfeld JJ
That statement was made by the Full Court of the Federal Court in the context of s 43(1)(c)(i) of the FOI Act. As I have said, there is no difference of substance between the terms of s 43 as it was previously drafted and s 47G as it appears in the FOI Act in its current form. Where the difference lies is in the characterisation of the exemption in s 47G as a conditional exemption and the addition of s 11A(5) requiring access to be given to a conditionally exempt document unless “access to the document at that time would, on balance, be contrary to the public interest.” Does that difference mean that the principles guiding the assessment of what would “unreasonably affect” the person in the context of s 43(1)(c) are no longer relevant in the assessment of the same question under its modern equivalent in the form of s 47G(1)(a)? In particular, does it mean that public interest is no longer a factor to which regard is had in deciding whether a person would be unreasonably affected by disclosure under the FOI Act or that it is a factor but modified in some way?
I will come back to this question for I will look first at the general meaning of the expression “public interest”, to which regard has been had in working out unreasonable effect under the earlier s 43(1)(c), and what is “contrary to the public interest” when that term is used in s 11A(5).
C.The public interest
Conditional exemption qualifies the obligation of an agency or Minister to give access to a document. Section 11A(5) provides:
“The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: …”
C.1Working out whether “access to the document at that time would, on balance, be contrary to the public interest”
Regard must be had to s 11B when working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5).[42] Section 11B does not, however, limit s 11A(5).[43] It then proceeds to set out those factors favouring access and those that are not to be taken into account in deciding whether access would, on balance, be contrary to the public interest. In making that decision, regard must be had to any guidelines issued by the IC under s 93A (IC’s Guidelines) for the purposes of s 11B(5).
[42] FOI Act; s 11B(1)
[43] FOI Act; s 11B(2)
Sections 11B(3) and (4) provide:
“Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa)access to the document could result in embarrassment to the Government of Norfolk Island, or cause a loss of confidence in the Government of Norfolk Island;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.”
C.2 Factors relevant in identifying public interest
As s 11B(2) expressly provides that s 11B does not limit s 11A(5), the concept of “public interest” and what “would, on balance, be contrary to the public interest” at a particular time is informed by general principles relating to the identification of those principles. Those principles include:
(1)“… The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest. …”[44]
[44] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 357 (Lockhart, Beaumont and Gummow JJ) at [34]; 59; 245; 364 per Lockhart J
(2)“… [A] question about ‘the public interest’ will seldom be properly seen as having only one dimension. …”[45]
(3)There is a “… distinction between the public interest and a matter of public interest. The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, at p. 480, per Barwick CJ. There are, as appears to be implicit in the quoted passage of the judgment of Morris LJ in Ellis v Home Office (supra), several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest….”[46]
(4)“ It is plain that the categories of public interest are not closed and that different minds will differ as to what is, or what is not, in the public interest. …”[47]
(5)“… [I]t is necessary to distinguish between ‘what is in the public interest and what is of interest to know’: Lion Laboratories Ltd. v Evans [1985] QB 526, at p. 553, per Griffiths LJ. On the other hand, ‘one feature and one facet of the public interest is that justice should always be done and should be seen to be done’: Ellis v Home Office [1953] 2 QB 135, at p. 147, per Morris LJ It is this feature of the public interest, namely the appearance of justice having been done, which is inherent in the proper administration of justice.”[48]
(6)“… [T]he expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’: Water Conservation and Irrigation Commissioner (NSW) v Browning … [(1947) 74 CLR 492 at 505], per Dixon J. …”[49]
(7)Where the public interest lies in a particular matter “… will often depend on a balancing of interests including competing public interests …”.[50]
C.3The IC’s Guidelines relating to public interest and when disclosure would, on balance, be contrary to the public interest
[45] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151 at [55]; 444; 202; 531; 167 per Hayne J
[46] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6 at 75; 18-19; Kaye, Fullagar and Ormiston JJ
[47] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 41 AAR 23; 88 ALD 12; Tamberlin, Conti and Jacobson JJ at [246]; 142; 655; 94; 80 per Jacobson J approved by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151 at [93]; 456; 212; 541; 177
[48] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6 at 73-74; 17 per Kaye, Fullagar and Ormiston JJ
[49] O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Toohey J dissenting
[50] McKinnon [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23 at [231]; 139; 78; 92 per Jacobson J with whom Tamberlin J agreed, citing Sankey v Whitlam (1978) 142 CLR 1 at 60 per Stephen J
In Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson,[51] I concluded that:
“Given that the Tribunal reviews the IC’s decisions and given that the IC has issued the guidelines, it seems to me that Parliament intended that the Tribunal should consider them, and do so genuinely. Beyond that, it did not require the Tribunal to go. In particular, Parliament did not require the Tribunal to give weight to the Guidelines as a fundamental element in its review. …
… The regard that it has to the Guidelines must be tempered by its obligation to make correct decisions under the FOI Act. Its obligation to do so must necessarily outweigh the regard it is required to have to the Guidelines issued under s 93A.”[52]
[51] [2015] AATA 361
[52] [2015] AATA 361 at [126]-[127]
That continues to be my view for the reasons I gave in that case. Bearing it in mind, I note that the relevant paragraphs of the IC’s Guidelines issued are set out at [6.1] to [6.33]. These paragraphs largely repeat what is said in the relevant provisions. Where they differ is in [6.6] to [6.10], where the concept of “public interest” is discussed and in [6.26] to [6.29] where factors weighing against disclosure are examined. The main points that are made are:
“6.7 The concept of public interest has also been described as something that is of serious concern or benefit to the public, not merely of individual interest. … It has been held that public interest does not mean of interest to the public, but in the interest of the public…
6.8… The term ‘public interest’ is necessarily broad and non-specific because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered. The concept can be applied to a multitude of situations and circumstances. Public interest considerations (such as the administration of justice) may also be simultaneously evoked in favour and against disclosure of a document in a particular case.
6.9 To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies, based on the particular facts of the matter at the time the decision is made.
6.10 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. The public interest relates to matters of common concern or relevance to all members of the public, or a substantial section of the public. A matter of particular interest or benefit to an individual or small group of people may nevertheless be a matter of general public interest. This is recognised in s 11B(3)(c) of the Act, which states that there can be a public interest in allowing a person to access his or her personal information.”
The Guidelines properly note that factors weighing against disclosure when applying the public interest test are not addressed in the FOI Act in the context of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5). Reference is made to factors that have already found their place in specific exemptions in the FOI Act i.e. circumstances in which “… disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. …”.[53] These are repeated in a list of 14 factors set out in [6.29].
C.4Relevance of public interest in determining whether disclosure “would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her business affairs …”
[53] Guidelines, Version 1.3, October 2014 at [6.26]
Returning to s 47G(1)(a), it seems to me that the addition of a public interest test in s 11A(5) makes no difference to the continuing relevance of public interest when interpreting s 47G(1)(a). The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. It will be balanced against factors that may not be regarded as aspects of the public interest but as aspects relevant only to the interests of the person whose interests might be affected by disclosure. The outcome of balancing all of the relevant factors –public interest or otherwise – will resolve the issue of whether disclosure of a document under the FOI Act would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her business affairs or have another adverse effect described in s 47G(1)(a).
Section 11A(5) also requires a decision-maker to undertake a balancing exercise but it is a balancing of public interest factors. It is not a balancing of public interest and non-public interest factors as in the case of s 47G(1)(a) or its predecessor, s 43(1)(c)(i). That follows from the fact that the question to which s 11A(5) requires an answer is whether, in the circumstances, access to the document at that time would, on balance, be contrary to the public interest. That does not allow room for consideration of factors that cannot be framed in terms of the public interest, or aspects of it.
The Guidelines issued by the IC recognise differences between the questions to be asked in applying ss 47G(1) and 11A(5) when they say at [6.165]:
“The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private interests, but this does not amount to the public interest test of s 11A(5) which follows later in the decision process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance. This is inherent in the structure of the business information exemption.”
It may only be a matter of emphasis but where this analysis may differ from mine is in the distinction between the factors that are relevant in considering the questions to be answered. It seems to me that s 11A(5) permits regard to be had only to public interest factors and not to private interest factors. That is not to say, though, that some private interest factors may not be properly characterised as public interest factors.
EVIDENCE
Evidence was given both by Mr Bell and by Mr de Castella on behalf of SmartStart. In this section of my reasons, I summarise the main points made in their evidence. Where Mr de Castella addressed particular documents, I have set that out later in considering each of the documents. Some of Mr de Castella’s evidence is subject to an order under s 35 of the AAT Act and I cannot refer to it in these reasons. I think, however, that my summary of the remainder of his evidence is consistent with the tenor of the evidence given confidentially.
Mr Bell’s evidence
Mr Bell referred to an article in the Sun Herald published on 7 March 2010 in which it was written:
“A PROGRAM headed by athletics great Robert de Castella, which includes taking six talented indigenous runners to compete in the New York Marathon, is in danger of collapse because of a lack of funds.
The former world champion marathoner says that unless he raises $500,000 over the next few months, his plan to establish a program to uncover indigenous running talent and to educate and promote healthy living in remote communities will have to be abandoned.
A recent funding application was rejected by the Department of Health last week. ‘It’s easy to have good ideas, it’s much harder to find the money to implement them,’ de Castella said.
‘It’s a whole new culture that we’re trying to build, that has enormous and far-reaching implications to remote communities. But right at the moment, we’re about $500,000 short and we really need to find the money to keep this going.’
The project extends beyond finding the next marathon champion. Out of hundreds of expressions of interest from the Northern Territory and northern Western Australia, the twice Commonwealth Games gold medallist identified 12 runners to undertake teaching courses, fitness leaders courses and be set up as educators and coaches within their communities.
Money is also required to stage camps and presentations, as well as employ a full-time coach who will train the group to run far and fast. De Castella wants to take the best six to New York in November.
‘We received a small seeding grant to get started and we’ve got three funding applications currently in with the Commonwealth,’ he said. ‘We also have a production company committed to doing a documentary – and they’re gambling that we’re going to get the funding.
‘The thing that needs to be understood is that this is not just a running program. This is about trying to promote a healthy, active lifestyle through one of the most fundamental activities, running and walking, and using these runners as educators and role models.
…”[54]
[54] Exhibit A at Attachment A
Mr Bell submitted that the newspaper article generated a public interest issue in the expenditure of public moneys because it became generally known that the IMP received more than $2.5 million from the public purse. He went on to say that the Auditor-General expressed concern about it in 2012 and there is public interest in informing the public debate on the nature of his concerns. Mr Bell referred also to answers given by Mr de Castella in proceedings No. DT11/27 and 12/01 in ACAT leading to Senior Member Lennard’s decisions. The exchange between Mr Bell and Mr de Castella included the following passage:
“Mr DE CASTELLA: We received the total amount of 187,000 from DOHA in April of 2010 or thereabouts according to the notes you’ve given me.
MR BELL: I appreciate that. Did DOHA give you an itemised budget for the amount of money they gave you?
MR DE CASTELLA: No.
…
MR BELL: Why not?
MR DE CASTELLA: Because we submitted a proposal and received funds based on the proposal that we submitted and it was up to us to allocate those according to what the project’s needs were.
MR BELL: And that was based on these budgeted items, correct?
MR DE CASTELLA: This was a justification for the funding. This was the submission that we put in to receive funds and it was up to me as project director to decide how best to utilise those funds to get the maximum value for the project.
MR BELL: Have you acquitted the grant?
MR DE CASTELLA: It has been acquitted.
…
MR DE CASTELLA: I would imagine once the period of the grant finished we would probably have to submit a final report, usually a month, a couple of months after the end of the period that the grant was covered for, and then in that final report would be an acquittal of the expenses. The company also has – as a public company has independent auditors that audit the company at the end of the financial year each year.
...”[55]
[55] Transcript (246-247) of ACAT proceedings No. DT27/11 heard on 26 June 2012: Exhibit A at Attachment D
Mr Bell also relied on a passage from the Reasons for Decision of Senior Member Lennard in Re Bell & Decastella and Rob De Castella’s Smartstart For Kids Ltd where she said:
“ The applicant asserted that Mr de Castella was a person of little credit and that where the tribunal is faced with conflicting evidence, the evidence of the applicant ought to be preferred. To this end, the applicant provided evidence relating to the grant funding obtained by the SmartStart in relation to the Marathon Project. The applicant asserted that the respondents had not properly dealt with funds provided in the grants: budget proposals submitted to the Department of Health and Ageing [DOHA] contained specific budget lines for a coach. Mr Bell was not paid a salary for his coaching activities. The applicant asked the tribunal to draw the inference that either the respondents had obtained money under false pretences, or, had used money obtained specifically for the payment of a coach, for another purpose. The applicant produced no evidence to support this allegation, except copies of information obtained under an FOI application from DOHA. The applicant asked for an adjournment in order to obtain further documents from DOHA and produced to the tribunal letters from DOHA relating to his FOI requests. The applicant submitted that the information went to the credit of Mr de Castella rather than to any of the particular grounds of complaint. It was evident from the letters from DOHA to the applicant that no further documents would be made available to him. The SmartStart and Mr de Castella provided, at the request of the tribunal, budget documents for four grants obtained from DOHA. The documents indicated that when a grant agreement was made, the amount of money granted was a one-line entry and that there was no expectation that money would be spent on any specific aspect of the project, although all the money was to be expended to achieve the project’s aims. There was no evidence to suggest that the respondents had not met their obligations under the grant agreement.
25. Nevertheless, given the urging of the applicant, the tribunal attempted to obtain information about the reporting and acquittal requirements attached to grant funding from DOHA. On 12 February 2013, the tribunal received correspondence which indicated that the Department administers many funding agreements across disparate projects, those agreements having varying terms and conditions in relation to the use of, reporting and acquittal of funds. The department does not have general guidelines for these requirements. The requirements are set out in each funding agreement and are often tailored to the specific circumstances of each matter. The evidence from DOHA does not support the applicant’s submission that a recipient of grant funds is obliged to spend those funds only upon the activities identified and as specified in the original budget and grant proposal.
26. There is no evidence before the tribunal that supports a finding that Mr de Castella engaged in dishonest or misleading conduct in relation to the grant funds.”[56]
[56] Re Bell & Decastella and Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 27 at [24]-[26]
Mr Bell submitted that the different acquittal requirements of the Department and of the Department of Families, Housing, and Community Services and Indigenous Affairs (FaHCSIA) for similar grants for similar purposes related to the IMP raises an issue of public importance. There is a public interest issue, Mr Bell continued, in the “one-line acquittal” requirement adopted by the Department. Mr Bell also raised the legal fees that Mr de Castella told ACAT SmartStart had incurred in relation to proceedings he, Mr Bell, had instituted. Those fees, Mr de Castella told ACAT on 26 June 2012, were in the vicinity of $30,000 and had been paid from IMP funds.[57]
[57] Transcript (363-364) of ACAT proceedings No. DT27/11 heard on 26 June 2012: Exhibit A at Attachment H
SmartStart’s evidence
SmartStart relied on evidence given by Mr de Castella. In his affidavit affirmed on 20 November 2014, he stated:
“SSFK [SmartStart], IMPF and IMP are operating in a fiercely competitive market for grant funding, charitable donations and volunteers. I believe that the release of the documents would have a significant, unreasonable and adverse effect on SSFK and the IMP, as they may:
32.1.1cast doubt on SSFK’s integrity and undermine the confidence and trust of individuals in SSFK and the IMP;
32.1.2damage the reputation of SSFK and the IMP;
32.1.3jeopardise the ability of SSFK and the IMPF to compete for competitive grant funding rounds and charitable donations; and
32.1.4affect the capacity of SSFK and IMPF to attract and retain volunteers;
in circumstances where the documents do not reflect the current circumstances, or management and financial practices, in which the IMP is managed and administered.”[58]
[58] Exhibit PJ1 at [32]
Mr de Castella developed this later in his affidavit stating:
“As receipt of this type of funding is based on competitive processes, and on the public perception of integrity of the IMP, SSFK and not the IMPF, I believe that any questions that are raised about the IMP and SSFK’s handling of grant money and donations are likely to adversely affect SSFK and the IMPF’s ability to:
39.1compete with other charitable organisations for grant funding, on the basis of a perception that a funding agreement with SSFK or IMPF represents a heightened level of risk;
39.2attract donations for the IMP, on the basis that individuals may consider that they have a reason not to trust that the donations in support of the IMP [sic]; and
39.3attract and retain volunteer staff, on the basis that the volunteers may question the integrity of SSFK and the IMP and their commitment of time to it.”[59]
CONSIDERATION
Documents 1 and 2
[59] Exhibit PJ1 at [39]
A. Document 1: letter from Department to SmartStart dated 14 May 2012
As described at [34] of Mr de Castella’s affidavit affirmed on 20 November 2014, I find that the letter dated 14 May 2012 from the Department to SmartStart advised of its intention to conduct a review of the way in which SmartStart had managed and administered various funding agreements related to the IMP.
B.Document 2: letter advising outcome of review of IMP dated 27 September 2012
Document 2 is a letter written by the Department to SmartStart outlining the issues raised by the review undertaken by the Department and issues that remained to be addressed. As Mr de Castella stated in his affidavit, an attachment to the letter listed specific expenses about which the Department was concerned in the delivery of the IMP.[60]
[60] Exhibit PJ1 at [45]-[46]
C. Consideration of Documents 1 and 2
Mr de Castella stated in his affidavit of 20 November 2014 that:
“… [T]he Department was, and is, the principal source of SSFK’s funding for the IMP and the review was therefore very significant for SSFK’s business, commercial and financial affairs.
I believe that the release of this letter [Document 1] could reasonably be expected to unreasonably and adversely affect SSFK in conducting its lawful business and financial affairs because it appears to raise serious concerns about SSFK’s management of grant and other funding. These concerns were either unfounded or were immediately addressed by myself and SSFK and did not require any remedial or non-compliance action or further investigation to be taken by the Department.
To the best of my knowledge, there were never allegations of fraud made against SSFK by the Department, despite the letter coming from and the review of SSFK being undertaken by the Department’s Audit and Fraud Control Branch. Nevertheless, the documents could give the false impression that allegations of fraud had been raised in relation to SSFK or the IMP.
…
The fact that SSFK’s management of its grant funds was reviewed by the Audit and Fraud Control Branch of a Commonwealth Government Department may cause SSFK to be considered a higher-risk applicant, and the IMP a higher-risk program, for future grant funding rounds. This could cause SSFK and the IMPF to be unsuccessful in competing for funding against other organisations and programs who may be considered lower risk, in circumstances where the matters raised in the Department’s letter of 14 May 2012 would not reflect the current management practices that are utilised by SSFK and by IMPF for the IMP.
Further, granting access to this document would be contrary to the public interest.
As outlined above the IMP has had demonstrable success in improving the lives and health of young Indigenous men and women and making a significant and positive contribution to the public good. It has also had a significant positive impact on the remote communities, regional areas and cities from which the IMP participants come, particularly where the IMP participants have returned to their communities and established programs aimed to improve the health and wellbeing of members of their communities.
I believe that the release of the document could affect SSFK’s and IMPF’s ability to deliver the IMP. I believe that that this would not be in the public interest, as it would adversely affect the ability of SSFK and the IMPF to continue to help these vulnerable members of Australian society through the IMP. The IMP is still in its infancy and any negative perceptions concerning the handling of money with respect to its operations are likely to have a significant impact on its continued success.
I understand that FOI is important and it is in the public’s interest to enable frank, honest and transparent administration of public monies. However, it is my view that this interest would not be promoted by the release of this document as the information in the document is not representative of SSFK’s actual position then and is not representative of the current operations of SSFK or IMP. It is does not [sic] represent the current relationship between SSFK, IMPF and the Department, and the issues identified in the letter, (some of which were incorrect and unfounded), were addressed or rectified to the Department’s satisfaction soon after being brought to my attention.”[61]
[61] Exhibit PJ1 at [34]-[44]
With relation to Document 2, Mr de Castella said that SmartStart had implemented significant changes to its management and the administration of the IMP grant funding in order to resolve any of the issues raised by the Department that proved to be substantiated. Mr de Castella believed that the issues had been addressed to the satisfaction of the Department because it subsequently entered new funding arrangements with SmartStart in 2014. Without that knowledge and without any detail regarding the changes made by SmartStart to address issues that had been raised, however, Mr de Castella was concerned that it would be adversely affected in conducting its lawful business and IMP and unreasonably so. The reputation of both SmartStart and of IMP regarding its ability to manage grant funding and donations could be damaged. Furthermore, the concerns raised in Documents 1 and 2 do not reflect any current concerns with the management and administration of SmartStart and IMP.
On the basis of the contents of Mr de Castella’s affidavits, including their confidential components, as well as upon the contents of the documents themselves, I am satisfied that the issues they address are issues relating to Standard Funding Agreements entered between the Commonwealth, through the Department, and SmartStart prior to the date of the letter. Those agreements were executed on 28 April 2010, 19 October 2010 and 7 June 2011. I am also satisfied that the issues that were raised have been addressed by SmartStart. Given Mr de Castella’s uncontradicted evidence that the Department has since entered another Standard Funding Agreement with SmartStart in early 2014, it is reasonable to infer that, whatever issues the Department previously had with SmartStart’s management and administration of the IMP under the previous Standard Funding Agreements, it does not continue to entertain them.
I accept that, if access were to be given to Documents 1 and 2 without any context, their disclosure could reasonably be expected to affect SmartStart in respect of its management and administration of its lawful business affairs. That would follow from the fact that questions were asked about its management and administration of the IMP at a time before it became the responsibility of IMPF. In so far as the IMP itself is concerned, potential donors could reasonably be expected to be wary of donating funds given questions raised by the Auditor-General and the investigation by the Department. They would not know of the responses given by SmartStart to the issues raised by the Department’s review or, if they had been given, whether the responses were satisfactory.
That said, I do not accept that disclosure would be made without any context. The context would include the fact that the Department has, since the date of its investigation, entered a Standard Funding Agreement in 2014 with IMPF for funding the IMP. It would be known, or could easily be ascertained, that Mr de Castella is a director of both SmartStart and IMPF. The fact that the Department entered a further Standard Funding Agreement with an entity that has Mr de Castella as its controlling mind, as was the case with SmartStart, would suggest that it is content that past issues had been addressed. An investigation into the management and administration of funds does not reflect simply on the grantee. Whether expressly or implicitly, it reflects also on the grantor. The fact that it entered the further Standard Funding Agreement also suggests that the Department itself is satisfied that it has in place proper strategies and protocols to ensure that it is not revisited by issues from the past.
Given that context and given the fact that four years have passed since the last of the Standard Funding Agreements between the Department and SmartStart, I have reservations whether the effect of disclosure at this stage on its lawful business, commercial or financial affairs would be adverse. Events are in the past and both SmartStart and IMPF as well as the IMP have their ongoing record of management and administration in the past four or five years to counter any adverse conclusions that might be drawn from the first three agreements. Furthermore, there are the agreements between SmartStart and FaHCSIA. I have no evidence that there were shortcomings in SmartStart’s performance in relation to its management of the grant moneys it received from FaHCSIA.
If I am incorrect in that conclusion, I must still consider whether any effect of their lawful business, commercial or financial affairs would be unreasonable. That question also has to be put in its context. That context includes the fact that SmartStart was the recipient of grant moneys to conduct IMP. It was, under the various Standard Funding Agreements I have summarised in the Attachment, obliged to report on its expenditure and its performance against various indicators. The precise matters on which it had to report varied from agreement to agreement. They also varied from the reporting requirements in the Standard Funding Agreements that SmartStart entered with FaHCSIA. This is not the occasion to make any assessment of the relative merits of the different requirements of the Department and of FaHCSIA.
What is relevant is that SmartStart was under an obligation to report under the Standard Funding Agreements for its management of public moneys. There is a public interest in ensuring that moneys given for a particular purpose are used for that purpose. There is a public interest in ensuring that the Commonwealth has in place proper reporting requirements so that it can ensure that it can account for the moneys that are given as grants. At the time the agreements were entered, the Chief Executive of an Agency, including the Department, was required to manage its affairs in a way that promoted the proper use of Commonwealth resources for which he or she was responsible.[62] By “proper use” was meant “… efficient, effective, economical and ethical use.”[63]
[62] Financial Management and Accountability Act 1997 (FMA Act); s 44(1)
[63] FMA Act; s 44(3)
When I have regard to the information that is contained in Documents 1 and 2, the historic nature of that information in the history of SmartStart and its relations with the Department, the ongoing nature of those relations and of IMP through a different entity but one that has very similar close ties with Mr de Castella as did SmartStart, the public interest in knowing whether public money was accounted for at the appropriate time in the manner required and the public interest in ensuring that public programmes are properly administered, I conclude that any adverse effect that would, or that might reasonably be expected, to follow disclosure of the documents would not be an unreasonable adverse effect on SmartStart or on the ongoing management and administration of IMP. Therefore, I am not satisfied that Documents 1 and 2 are conditionally exempt under s 47G.
Had I reached a contrary conclusion, I would have considered s 11A(5). The section would have required me to consider whether access would, on balance, be contrary to the public interest. The time at which I consider that question is the time at which I make my decision for s 11A(5) requires access to be given to a conditionally exempt document “at a particular time” unless doing so is, on balance, contrary to the public interest. Where the balance lies may vary from time to time for it is affected not only by factors peculiar to the particular information in the documents but by factors external to them.
In this case, there is a public interest in ensuring that persons who deal with government, whether as grant recipients or otherwise, are able to conduct their lawful business, commercial or financial affairs without unreasonable public scrutiny of those affairs. There is also a public interest in the successful continuation of IMP and in its achieving its objectives as stated in the various Standard Funding Agreements. At the same time, there are the public interests I have already identified in considering the conditional exemption under s 47G(1): the public interest in knowing whether public money was accounted for at the appropriate time in the manner required; and the public interest in ensuring that public programmes are properly administered.
Again, the passage of time has an impact in the weight that each of these factors carries. On the basis of Mr de Castella’s evidence, I find that the IMP has continued and continues to receive grant moneys from the Department in addition to any other funds it attracts. There has been a change in management of IMP from SmartStart to IMPF but Mr de Castella remains a director. A further Standard Funding Agreement that has been entered between IMPF and the Department in 2014 some four or five years after those that led to the Department’s investigation as documented in Documents 1 and 2. That indicates the Department’s continued confidence that the problems it and SmartStart encountered in the early days of the programme have been addressed. Any adverse impact on the public interest in ensuring that SmartStart and IMPF can carry on their lawful business, commercial and financial affairs is ameliorated by these subsequent events. At the same time, any adverse effect of that sort becomes a lesser consideration in light of the other public interests to which I have referred in the previous paragraph. It is outweighed by those public interests. Therefore, I have concluded that access to those documents is, on balance, not contrary to the public interest within the meaning of s 11A(5) having regard to s 11B. It follows that I am not satisfied that Documents 1 and 2 are not exempt within the meaning of s 31B(b) of the FOI Act.
Documents 6 (part), 9 (page 3) and 10 (page 14)
A. Documents 6, 9 (pages 3 and 4) and 10 (page 14)
Document 6 is a one page document headed:
“The Indigenous Marathon Project
Unaudited Statement of Income & Expenditure
1 July 2010 through April 2011”
Pages 3 and 4 of Document 9 are headed with a general description that the document is a report to the directors of SmartStart. A more specific description follows:
“Statement of Eligible Expenditure
For the period 1 July 2010 to 30 June 2011”
Both Document 6 and page 3 of Document 9 contain an entry named “Management Services” followed by an amount.
Document 10 is a Progress Report dated 9 February 2012. Its front page refers to the IMP and to the Standard Funding Agreement between SmartStart and the Department. Included at page 14 is a Profit and Loss Statement for the period April to December 2011. It also includes an item named “Management Services” followed by an amount.
B. Consideration of Documents 6, 9 (pages 3 and 4) and 10 (page 14)
In his affidavit dated 20 November 2014, Mr de Castella stated:
“‘Management Services’ was a cost used for several months of the 2010/2011 financial year, in the allocation of management and serviced office expenses to the IMP. In addition to staff, contractors and wages, the ‘Management Services’ item included costs relating to monthly billing for the fully serviced office, including office furniture, computers, printers, phone/fax and internet, IT, cleaning, security and power. Towards the end of the 2010/2011 financial year, the general ‘Management Services’ allocation was changed and broken down to more specific and detailed expenses.
More accurate financial reporting protocols have since been adopted with respect to the recording and reporting of IMP funds.
For the same reasons as I have set out with respect to Documents 1 and 2, I believe that the release of Document 9, to the extent that it refers to, and attributes a figure to, Management Services, could reasonably be expected to unreasonably and adversely affect the business and professional affairs of SSFK and the IMP.
…
As I have stated in paragraphs 41 to 44 above, with respect to Documents 1 and 2, I also believe that release of Document 9, to the extent that it refers to, and attributes a figure to, Management Services, would be contrary to the public interest as any adverse impact on SSFK and IMPF’s capacity to attract donations and funding for the IMP may put the continued success of the IMP in jeopardy, in circumstances where the IMP has delivered, and is expected to continue to deliver, a range of positive outcomes for the vulnerable members of Australian society.”[64]
[64] Exhibit PJ1 at [61]-[65]
Just as SmartStart relies on the same submissions that it relied on in putting its position that Documents 1 and 2 are conditionally exempt and that access is not required to be given to them, I rely on the same analysis and the same considerations that I have applied in finding that they are not conditionally exempt. There is no difference and I conclude that Documents 6, 9 (pages 3 and 4) and 10 (page 14) are not conditionally exempt under s 47G(1)(a) as claimed by SmartStart. If I am incorrect in that conclusion, I am not satisfied that access to them would, at this time and on balance, be contrary to the public interest within the meaning of s 11A(5) as informed by s 11B and the IC’s Guidelines.
Documents 5 and 8
A. Documents 5 and 8
Documents 5 and 8 are Financial Reports for SmartStart. One is for the year ended 30 June 2010 and the other for the year ended 30 June 2011. I have only Document 5 but have taken Document 8 to be in the same form. It includes a Directors’ Report, an Auditor’s Independence Declaration under s 307C of the Corporations Act 2001 (Corporations Act) to the Directors, Financial Statements and Notes to them and the Independent Auditor’s Report.
B. Consideration of Documents 5 and 8
On behalf of SmartStart, Mr Temby submitted that Mr Bell is not entitled to them, or at least parts of them, under the FOI Act on two bases. As to parts of them, the first basis of his submission is that, under s 12(1)(b) of the FOI Act, a person is not entitled to obtain access under Part III of the FOI Act to:
“a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge”.
Mr Temby’s submission is to the effect that certain parts of the documents are required to be lodged under the Corporations Act 2001 and, for that reason, are excluded by operation of s 12(1)(b).
If a document falls within the description set out in s 12(1)(b), the consequence is that a person does not have a legally enforceable right to obtain access to it under the FOI Act. That follows from the fact that the legally enforceable right provided for in s 11(1) is “Subject to this Act”. Therefore, it is subject to any qualification found in the FOI Act including that set out in s 12(1)(b).
Annexed to his affidavit affirmed by Mr de Castella on 4 December 2014 is a list of documents available for purchase from the website of ASIC. SmartStarts’ Financial Reports for both the 2010 and 2011 financial years are listed and available for purchase in either an uncertified or certified form. The fact that they are available for purchase on that website does not of itself bring the documents within the scope of s 12(1)(b). They must be open to public access “in accordance with another enactment” i.e. an enactment other than the FOI Act.
Section 1274 of the Corporations Act provides that, subject to that legislation, ASIC must keep such registers as it thinks necessary and in such form as it thinks fit.[65] A person may inspect any record lodged with ASIC provided it has not been lodged under any of the provisions set out in s 1274(2). Financial Statements lodged by a company under Part 2M.3 are not excluded from inspection. No provision is made in the Corporations Act for the imposition of a fee or charge for inspection of documents on ASIC’s registers but provision is made in the Corporations (Fees) Act 2001 (CF Act) for the imposition of fees for “chargeable matters”.[66] The expression “chargeable matter” includes “the inspection or search of a register kept by, or a document in the custody of, ASIC under …” the Corporations Act.[67] Section 6(1) provides that regulations may prescribe a fee for a chargeable matter by either specifying an amount or a method for its calculation. Regulation 3 of the Corporations (Fees) Regulations 2001 (CF Regulations) provides for prescribed fees. Those fees are set out in Schedule 1 to those regulations. Item 30 of the Schedule is relevant because it prescribes the fees “For inspecting, or an enquiry involving the inspection of, documents that are lodged by or in relation to a particular corporation or registered scheme …”.
[65] Corporations Act; s 1274(1)
[66] CF Act; s 5
[67] CF Act; s 4(1)(c)
It follows that the Financial Reports comprised within Documents 5 and 8 are open to public access in accordance with an enactment other than the FOI Act and where that access is subject to a fee or charge. Therefore, Mr Bell is not entitled to have access to them under the FOI Act. This resolves the issues relating to Documents 5 and 8 and I do not need to go on to decide whether or not they fall outside the scope of Mr Bell’s request for access.
DECISION
For the reasons I have given:
(1)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 7 and 9 and noting that the respondent does not press a claim that they are exempt, I:
(a)set aside the decision; and
(b)substitute a decision that:
(i)Documents 7 and 9 are not exempt under the FOI Act; and
(ii)the respondent must give the applicant access to those documents;
(2)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 1, 2, 6 and 10, I:
(a)set aside the decision; and
(b)substitute a decision that:
(i)Documents 1, 2, 6 and 10 are not conditionally exempt under the FOI Act and that access to them would not be contrary to the public interest; and
(ii)the respondent must give the applicant access to those documents; and
(3)in so far as the decision of the respondent dated 12 February 2014 refused access to Documents 5 and 8, I affirm the decision.
STANDARD FUNDING AGREEMENTS BETWEEN SMARTSTART AND THE DEPARTMENT AND BETWEEN SMARTSTART AND FaHCSIA
I have been given partial copies of four Standard Funding Agreements between the Commonwealth of Australia (Commonwealth) and SmartStart. In two, the Commonwealth was represented in the form of the Department and, in the other two, by FaHCSIA. Copies of three of them, executed by the Department included in Exhibit 1 and numbered (2), (4) and (5) in the following paragraph, do not contain a copy of Items E to M in the Schedule to each agreement[68] and none contains pages 5 to 12. The Schedule to those in (2) and (4) below appears in Mr Bell’s affidavit.[69] Those Standard Funding Agreements between FaHCSIA and SmartStart appear in full in Attachment G to Mr Bell’s affidavit.
[68] Items E to M are: Funds and Invoice Requirements (E); Project Material and Existing Material (F); Liaison Officers (G); Acknowledgements (H); Assets (I); Insurance (J); Compliance with Laws and Policies (K); Guidelines and Standards (L); and Specified Personnel (M).
[69] Exhibit A; Attachment B
I will list those agreements as they appear in the material I have been given:
(1)The first is attached to Mr Bell’s affidavit but it is represented only by a covering letter, the Schedule to the agreement, Annexures A, B and C and the execution page.[70] I accept that was executed on behalf of FaHCSIA as the Commonwealth on 11 November 2009 and came into operation on that day.
(2)The second does not contain a copy of the page on which the agreement was executed but I accept that it was executed by or on behalf of the Department and SmartStart on 28 April 2010.[71]
(3)I have a covering letter, the Schedule, Annexures A, B and C and the execution page of the third Standard Funding Agreement.[72] On that basis, I am satisfied that it was executed by or on behalf of FaHCSIA and SmartStart and came into operation on 26 July 2010.
(4)A fourth Standard Funding Agreement does contain a copy of the relevant page. It was executed on behalf of SmartStart on 30 September 2010 and on behalf of the Department on 19 October 2010. It does not contain a copy of the execution page but a note on the front of the document suggests that it was executed on 7 June 2011. This was not a matter that was in dispute between the parties and I accept that was the date on which the Commonwealth and SmartStart entered the third agreement.
(5)A Standard Funding Agreement was executed by the Commonwealth, as represented by the Department, and SmartStart on 7 June 2011.
[70] Exhibit A; Attachment G
[71] Exhibit 1 and Exhibit A; Attachment B
[72] Exhibit A; Attachment G
A.The first Standard Funding Agreement with FaHCSIA: 11 November 2009
I find that it was agreed that the Commonwealth would provide funding of $50,000 in order for SmartStart to undertake an activity described as “Documentary ‘Run to America’”. A Budget was specified in Annexure C to the agreement. By virtue of Item D to the Schedule, that meant that the funds could only be spent in accordance with that Budget. It specified precise amounts that were to be spent on such matters as salaries, hiring editing facilities, vehicle hire and fuel purchase, services including accounting fees and telephones, supplies including camera hire and hard drive and memory cards and travel and accommodation.
The objective of the program was to:
“Raise public awareness in the wider community of Aboriginal and Torres Strait Islander culture, society and issues.
Support initiatives that have significant value in raising public awareness of Aboriginal and Torres Strait Islander culture, society and issues, including:
·The promotion to the wider community of an understanding and respect for Aboriginal and Torres Strait Islander cultures;
·Encouragement within the wider community of the development of positive attitudes towards Indigenous Australians; and
·Information to the wider community about contemporaneous issues that impact on Aboriginal and Torres Strait Islander individuals and communities.”[73]
[73] Exhibit A; Attachment G
The activity was to take place between 1 July 2009 and 30 June 2010. The details of the activity were:
“The objective is to provide material for SmartStart’s Indigenous Marathon Program and its documentary following six Indigenous teenagers being trained and supported to run the New York Marathon in November 2010.
The 7.30 Report will accompany the SmartStart selectors and camera crew to capture footage for its own story on the Indigenous Marathon Program and making of the documentary. The 7.30 Report will cover all its own costs.
The funding will enable the production team to travel, interview and assess the short listed applicants and conduct interviews with key personalities such as the Director of the AIF, the Australian Sports Commission and Indigenous advocates e.g. Cathy Freeman, Kyle Vander Kuyp.
The journey, from the first selection process (covered by this PAP grant) all the way to the finish line of the Marathon, will be filmed and used to produce a series of TV documentaries for airing on ABC Television, National Geographic channel and major film festivals.”[74]
[74] Exhibit A; Attachment G
SmartStart was required to provide Financial Reports and acquittal reports for the period 31 December 2009 to 11 February 2010 and for the period 30 June 2010 to 11 August 2010. A Performance Report was required for the period 30 June 2010 to 11 August 2010.[75] Supplementary Conditions set out in Annexure A required SmartStart to provide a Statutory Declaration to FaHCSIA within 30 days of 30 June 2010. It had to provide receipts or other documents verifying expenditure of the funding received under the agreement. The Statutory Declaration was also required to describe SmartStart’s actual performance against the project’s objectives and performance indicators as well as state whether the project had been completed and whether its objectives had been achieved. Finally, the Statutory Declaration had to verify whether SmartStart had used the funding for the project in accordance with the agreement.
[75] Items E.4 and F: Exhibit A; Attachment G
B.The second Standard Funding Agreement with Department: 28 April 2010
Beginning with the first agreement, it summarised the events that had led to the parties’ entering the agreement and what they intended to achieve by doing so. It did so in the Recitals in which SmartStart is referred to as the “Participant”:
“A. The Commonwealth has developed the Council of Australian Governments’ Closing the Gap Initiative – Tackling Chronic Disease Risk Factors.
B.The objectives and outcomes of the initiative are to close the gap in life expectancy within a generation and to assist Indigenous communities to participate in healthy lifestyles acknowledging chronic disease risk factors such as tobacco use.
C. The Participant has fully informed itself of all aspects of the work required to be performed for the purposes of the Project and has submitted a proposal entitled Indigenous Marathon Project, Health Education Program dated 6 April 2010.
D.The Participant is committed to helping to achieve the objectives and outcomes of the Program through the conduct of the Project.
E.The Commonwealth has agreed to fund the Participant to perform the Project in support of the Program on the following terms and conditions.”[76]
[76] Exhibit 1 at 4
The activities to be undertaken by SmartStart were specified in Item M and were to be undertaken by Specified Personnel but none were specified.[77] SmartStart agreed to be fully responsible for the performance of the Project and for ensuring compliance with the requirements of the Agreement. It was required to:
“… keep comprehensive written records of the conduct of the Project including performance against Guidelines and Standards, progress against the Aim of the Project and the objectives and outcomes of the Program described in Recital B, the creation of the Project Material and the acquisition of Assets.”[78]
[77] Exhibit 1 at 12; Item 8
[78] First agreement at [11.1]
Item A of the Schedule set out the Project and its aims:
“The Indigenous Marathon Running Project (MRP) Health Education Program, provides funding to assist Indigenous Communities to promote running, healthy lifestyles and compliment [sic] existing Indigenous community health initiatives.
Aim
The health education initiative aims to motivate and support levels of participation in physical activity and promote healthy active lifestyles by:
·providing healthy lifestyle and physical exercise routines, that can stay with an individual for a lifetime;
·identifying other support persons in communities such as parents, teachers and sport and recreation workers;
·identifying and complimenting [sic] existing Indigenous community health initiatives with a focus on preventive [sic] chronic diseases; and
·fostering the existing support of both the Australian Federal Police, and the NT Police, and their help with travel and communication logistics, as well as day to day support of community walking and running groups.”
The “… objectives, deliverables and performance indicators for the Running to America Project …” were detailed in Item A of the Schedule. This was followed by a statement of Outcomes to be achieved:
“The primary outcomes sought from this program are to:
·increase interest in running in Indigenous communities, particularly in rural and remote areas.
·increase interest in healthy living and active lifestyles in Indigenous communities, particularly rural and remote areas.
·identify and select six Indigenous athletes to run the New York marathon in November 2010, who will then return to their communities as potential role models.
·provide Indigenous athletes taking part in Running to America project with vocational training, to allow them to work in a health promotion role within the community.
The MRP potentially provides a starting point for the further development and dissemination of the vocational training modules developed as part of this program. Participants could provide the core of the broader healthy lifestyles role models for Indigenous communities.
The journey will be filmed and a major documentary will be produced by Good Oil films with renowned Director Jen Peedom (Director of ‘Miracle on Everest’ and ‘Solo’). This will provide a mechanism to broadly demonstrate to the broader Indigenous community, and the Australian community as a whole the projects [sic] success and could provide a culturally appropriate resource for the Healthy Lifestyle Workers under the Council of Australian Government’[s] Closing the Gap initiative.”
The way in which this would be achieved was set out in the Schedule under Item A:
Objective 1. Re-ignite distance running and establish a program that encourages a healthy lifestyle, exercise and good nutrition for Indigenous males and females in rural and remote areas.
Deliverables
Performance Indicators
1.
Identify athletes to participate in the Running to America Project.
2.
Provide workshops for the Running to America athletes to increase their knowledge about living a healthy lifestyle.
3.
Athletes undertake vocational training courses so that they can give talks to various community groups after the marathon, and increase interest in living a healthy lifestyle.
4.
Establishment and support for community walking groups.
5.
Athletes become role models and inspire others to run.
6.
Hold community based events such as fun runs which increase community interest in running.
Objective 2. Identify support for running in Indigenous communities.
Deliverables
Performance Indicators
1.
Identification of stakeholders.
2.
Form partnerships with other organisations.
3.
Work closely with the community, to identify and support running groups, and integrate them with other sporting structures.
4.
Identify community members such as; parents, teachers, and sport and recreation workers who are interested in becoming involved.
5.
Work with the Northern Territory Police, and the Australian Federal Police, too [sic] provide communication and logistical travel support.
Objective 3.
Identify and assist with existing community initiatives
Deliverables
Performance Indicators
1.
Identify initiatives.
2.
Identify and contact stakeholders.
3.
Communicate with those organisations/community groups and identify potential partnerships.
4.
Develop a plan to work together.
5.
Implement plan.
Objective 4.
Train the Indigenous runners during the period of this project to help enable six of them to compete in the 2010 New York Marathon in November
Deliverables
Performance Indicators
1.
Identify potential runners.
2.
Hold events to assist in selecting those to compete in New York Marathon.
3.
Provide adequate training and support.
4.
Provide necessary equipment and travel.
An Evaluation of the Project was to be included in the First Stage Final Report, which was to be completed by 18 June 2010. For the purposes of that Evaluation, SmartStart would arrange for athletes to be given health and fitness checks as part of a longitudinal study to examine the benefits of the Program. The First Stage Final Report was also required to contain a comprehensive description of the administration of the Project and the progress made against each of the activities listed in the project plan. If they were not achieved, an explanation was required. The Budget provided for in Item B of the Schedule was $187,291.50. Item E stated that it was payable in two instalments on the Commonwealth’s receiving a tax invoice.
C. The third Standard Funding Agreement with FaHCSIA: 26 July 2010
The third Standard Funding Agreement related to the period from 1 July 2010 to 22 September 2011 for activities to start on 1 July 2010 and conclude by 22 April 2010. The Program for which funding was given was the “Public Awareness Program”. Its objectives were:
“Support selected initiatives that have significant value in raising awareness in the wider Australian community of Aboriginal and Torres Strait Islander culture, society and issues, including:
·the promotion to the wider community of an understanding and respect for Aboriginal and Torres Strait Islander cultures;
·encouragement within the wider community of the development of positive attitudes towards Indigenous Australians; and
·information to the wider community about contemporary issues that impact on Aboriginal and Torres Strait Islander individuals and communities.”[79]
[79] Schedule 1 to Agreement: Exhibit A; Attachment G
The amount of the funding was, including GST, $220,000 that had to be spent in accordance with the Budget set out in Annexure C. That Annexure set out specific amounts for services such as equipment hire, camera operators, equipment, uniforms and training costs and film/tape stock.
D.The fourth Standard Funding Agreement with Department: 19 October 2010
The second agreement covered the period from 19 October 2010 to 30 June 2011.[80] Funding for the project was in the sum of $313,974. The Aim of the project was set out in Item A to the Schedule to the Agreement:
“The Project will achieve formal accreditation of the course and its support material and continue the development of the course.
The workbooks and course material will be used by the Indigenous participants’ [sic] while they undertake the Certificate III in Indigenous Healthy Lifestyle (the Course).
The Course is designed especially for Indigenous men and women and will enable them to be trained so that they have a good understanding and an ability to address the preventable chronic disease risk factors within Indigenous communities. It aims to enable participants to become healthy lifestyle leaders and Indigenous health and recreation workers. The Course and qualification will enable the delivery of a range of health prevention, health promotion and educational activities and programs in Indigenous communities.”
[80] Item C of Schedule: Exhibit A; Attachment B
The project was divided into three stages with five milestones to be met. Their essence is summarised in the statement in Item A of what is covered by the funding:
“1. Accreditation and formal recognition of the newly designed Certificate III in Indigenous Healthy Lifestyle and documentation of the course workbook and material. It is anticipated that the material for formal accreditation will be ready to be lodged by the end of February 2011;
2.A pilot of a children and adult health and fitness education and assessment workshop in Alice Springs. This workshop will be delivered in the Indigenous communities at Santa Teresa and Amoonguna with children and adults in partnership with Charles Darwin University, local health clinics and schools;
3.Pre-New York departure camp in Sydney, for travel to, and participation in, the 2010 New York marathon;
4.Return to Country trip, public presentations and recruitment for 2011 events in each of the communities hosting the runners.
In addition to these events, ongoing support and coordination will be provided to each runner. This will include essential regular contact with their families, employers (where employed), local mentors and local training partners and coaches.”
SmartStart was required to prepare an interim, or First Report, by 1 December 2010 describing the progress made during the first two stages. The second stage concluded with participation in the New York Marathon. The Final Report was to be presented by 9 May 2011. It had to cover the entire period of the project and give a comprehensive description of its administration, report on the achievements against the milestones and describe the difficulties, barriers and gaps encountered during the project. In addition, the Final Report had to include a copy of the accredited Certificate III in Indigenous Health, Fitness and Recreation as well as all the resource material for that course.
Following the receipt of a correctly rendered invoice, the Commonwealth would pay the funds of $313,974 in two instalments. The first totalled $290,000 and was payable following execution of the agreement by the Commonwealth. The second, due on 9 May 2011, was in the amount of $23,974. A “correctly rendered invoice” was one that:
“(a) Identifies the name of the Project;
(b)Sets out the name of the Commonwealth Liaison Officer;
(c)Contains a claim for the amount of the Funds properly required; and
(d)Is a tax invoice.”[81]
[81] Schedule; Item E: Exhibit A at Attachment B
E.The fifth Standard Funding Agreement with Department: 7 June 2011
The fifth Standard Funding Agreement began with a recital referring to the Commonwealth’s having developed the Indigenous Marathon Project – A Healthy Living Initiative. It set out the objectives and outcomes of the IMP. They included:
“… closing the gap in life expectancy and child mortality rates for Indigenous Australians, addressing the incidence of chronic disease in Indigenous Australia by promoting regular physical activity, good nutrition, supporting healthy lifestyles and disease prevention.”[82]
The aim of the IMP was to identify, train and take a group of young Indigenous men and women from around Australia to run at the New York Marathon. Through their experience and health education, those men and women would become positive role models and healthy lifestyle advocates for their communities and beyond in supporting healthy lifestyles and disease prevention. SmartStart was committed to helping the Commonwealth to achieve the outcomes and objectives of the IMP. The period of the IMP extended from 7 June 2011 to 30 June 2014. Including GST, the Budget was $1,649,614.
[82] Exhibit 1
SmartStart agreed to keep comprehensive written records of the conduct of the IMP including performance against Guidelines and Standards as well as its performance against the Aim of the project and the objectives and outcomes described in the Recital. SmartStart was also required to report on the creation of Project Material and the acquisition and disposal of assets. If SmartStart did not achieve the aim of the IMP, it was to report the reasons for its failure. It was also required to keep financial records relating to the IMP so that all income and expenditure related to it could be identified in its accounts. Financial statements were to be prepared and audited in accordance with Australian Auditing Standards. Progress reports were required every six months with a Final Report due on 31 August 2014. Financial reports were due on 31 January for the half financial year and 30 October for the full financial year in each year of the IMP. The half yearly reports had to include a detailed statement of income and expenditure against the agreed Budget. The full yearly reports had to include that material as well as a description of actual performance against the Guidelines and Standards and the Aim of the Project, a version of the Project Material produced, whether the aim of the IMP was being achieved and, if not, why not and how much SmartStart needed to meet current liabilities under legal commitments entered for the performance of the agreement.
I certify that one hundred and two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………....[sgd]......................................
Leah Berardi Associate
Date of Hearing 19 March 2015
Date of Decision 9 July 2015
Applicant self represented Mr W Bell
Solicitor for the Respondent Ms K Robbins
Legal Services Branch, Department of Health
Solicitor for Party Joined Mr I Temby
Maddocks
2