Bunting and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 145
•22 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/468
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD BUNTING Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND
INDIGENOUS AFFAIRSRespondent
DECISION
Tribunal Dr KS Levy, Member Date22 February 2006
PlaceBrisbane
Decision The Tribunal therefore determines:
(i) that the decision of the delegate of the Minister on 29 November 2004, which was upheld on internal review on 20 January 2005, that folios 81 and 84 – 88, are exempt pursuant to sections 41 and 45 of the Act.
(ii) In respect of the preliminary orders made at the hearing in respect of section 64(1) of the FOI Act and section 35(2)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the unexpurgated versions of the documents which are the subject of this application, should remain sealed at the Tribunal and should be returned to the respondent following publication of this decision.
.......[Sgd]........
KS Levy
Member
CATCHWORDS
FREEDOM OF INFORMATION – request for access – whether disclosure a breach of confidence – whether a disclosure of confidential source of information – whether unreasonable disclosure of personal affairs – alleged false allegations of domestic violence – whether illegitimate use of domestic violence provisions to obtain permanent visa – decision affirmed.
Freedom of Information Act 1982 s4, 41, 45, 55
Kioa v West (1984) 159 CLR 550
Jorgensen v ASIC (2004) 208 ALR 73
Re Cook & Comcare (1996) 23 AAR 19
Re Schofield & ACT Work Cover 61 ALD 238.
Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Storay and Department of Immigration and Multicultural and Indigenous Affairs [2004] AATA 640,
Kamminga and Australian National University (1992) 15 AAR 297
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Corrs Pavey Whiting and Byrne and Collector of Customs for the State of Victoria (1987) 14 FCR 434REASONS FOR DECISION
22 February 2006 Dr KS Levy, Member 1. The applicant, Ronald Bunting, applied for review of a decision by the respondent under section 55 of the Freedom of Information Act 1982 (the Act). The applicant disputes the decisions made previously, including internal review decisions that the documents sought are exempt or partially exempt in accordance with the provisions of the Act.
2. The matter was heard in the Administrative Appeals Tribunal on 2 December 2005. The applicant was self represented. The respondent was represented by Mr Palfrey of Clayton Utz, Solicitors.
Documentary Evidence
3. The following documents were admitted into evidence:
§Exhibit 1 Extract from Sunday Mail dated 27 February 2000
§Exhibit 2 Letter from the Hon Gary Hardgrave, MP, Minister for Citizenship and Multicultural Affairs dated 31 March 2000
§Exhibit 3 Letter from the Hon Gary Hardgrave, MP, Minister for Citizenship and Multicultural Affairs dated 20 May 2003
§Exhibit 4 Extract of a letter from the Hon Gary Hardgrave, MP, Minister for Citizenship and Multicultural Affairs dated 27 June 2003
§Exhibit 5 Affidavit of Natalie Bunting dated 13 February 2002
§Exhibit 6 Extract from Australia’s 1998 Report Five Year Review of the 1993 Vienna Declaration of Human Rights (page 6 of 27)
§Exhibit 7 Extract from Sunday Examiner dated June 8, 2003 at page 4
§Exhibit 8 Documents prepared and submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents)
§Exhibit 9 Decision Storay and Department of Immigration and Multicultural and Indigenous Affairs [2004] AATA 640
§Exhibit 10 Statutory Declaration of Form1040 – Statutory Declaration under the Domestic Violence Provisions for the Migration Regulations (Instructions and blank form).
4. The following documents were claimed to be exempt on the basis of exemptions set out below:
Doc Folio No
Date
Description and nature of contents.
Parts - documents involved
81
17/2/2000
Statement in support of application for permanent resident visa under the Domestic Violence provision of the Migration Regulations
Entire document
84
18/2/2000
Statutory declaration under the Domestic Violence provisions of the Migration Regulations
Entire document
Doc Folio No
Date
Description and nature of contents.
Parts - documents involved
85
18/2/2000
Statutory declaration under the Domestic Violence provisions of the Migration Regulations
Answers to Q5,6 & 8 and the first line of the answer to
Q7
86
17/2/2000
Statutory declaration under the Domestic Violence provisions of the Migration Regulations
Answers to Q5, 6 & 8 and the last sentence of the answer to Q7
87-88
29/2/2000
Letter in support of application for a permanent resident visa under the Domestic Violence provision of the Migration Regulations
Last 2 paras of the letter and identity of author and agency
5. It is noted that following an application for internal review, the original decision to exempt all of the above documents was amended on 15 November 2000 and partial access was granted in respect of documents 85, 86, 87 and 88.
Background and Preliminary Considerations
6. The applicant made an initial request under the Act for access to the documents above on 28 June 2000. Access was refused. A request was made for internal review of that decision on 2 October 2000. On 15 November 2000 the original decision was varied by granting partial access to folios 85 to 88 (inclusive). The original decision in relation to folios 81 and 84, which decided that they were wholly exempt, was affirmed.
7. A fresh request was lodged on 20 May 2004. On 29 November 2004, a delegate of the Minister determined that all the documents were exempt pursuant to sections 41 and 45 of the Act. That decision was affirmed on 2 July 2005 following a request for internal review. The present application was then lodged with the Administrative Appeals Tribunal (the Tribunal) for review of the latter internal review decision.
8. As part of the preliminary issues at the hearing, the documents which are the subject of this application, were ordered by the Tribunal in their full and unexpurgated versions to be restricted to the Tribunal under section 64(1) of the Act. A further order was made under section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 that those documents remain sealed with the Tribunal until further order.
Evidence
9. No witnesses were called to give evidence in this hearing. However, the applicant was required to be sworn so that any submissions or information that he provided might be regarded at least of the standard provided by any witness, that is, on oath in this case.
10. The applicant tendered a number of documents, which were reports in newspapers as well as copies of letters from the Minister for Citizenship and Multicultural Affairs and Information, in relation to the Universal Declaration of Human Rights. The Tribunal also noted submissions that the applicant made in relation to the relevance of the international covenant on civil and political rights, of which Australia is a signatory. The applicant contended that these conventions should influence the statutory interpretation of the relevant provisions of the Act.
11. It was also submitted by the applicant that the content of the information in the documents includes allegations in relation to domestic violence and of apparent criminal or quasi-criminal behaviour. He maintained that that information is false and defamatory and that he has been denied procedural fairness as set out by the High Court in Kioa v West (1984) 159 CLR 550.
12. The applicant contended that section 41 provides a ground for preventing unreasonable invasion of privacy. He argued that the identity of the informant in these documents is his former spouse who is well known to him. He therefore submitted that section 41(1) could not amount to an unreasonable invasion of privacy. He referred also to the requirements under section 45 as set out in various decisions as well as a report entitled “Serial Sponsorship: Immigration and Human Rights” by Robin Iredale, Jane Innes and Stephen Castles (1992). In particular he referred the Tribunal to page 38 of that report. He contends, inter alia, that the decision is unfair and inequitable to him.
13. The respondent submitted that the documents are exempt under the first limb of section 41 and referred the Tribunal to Jorgensen v ASIC (2004) 208 ALR 73 at 79 which held that some aspects of information pertaining to officers of the respondent or information such as contact details about persons which were gathered by the Department on a confidential basis, should not be released. The Tribunal was also referred to Re Cook and Comcare (1996) 23 AAR 19 and Re Schofield and ACT Work Cover 61 ALD 238. In relation to the second limb of section 41, it was submitted on behalf of the respondent that in the case of Re Chandra & Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 that consideration of the issues under section 41(1) requires consideration of all of the circumstances of the case and in particular the nature of the information that would be disclosed, the circumstances in which the respondent obtained information, the likelihood that the persons concerned would not wish to have their personal details disclosed without their consent; and whether the information has any current relevance.
14. In that regard the respondent argued that Form 1040 indicates that the information provided was intended to be treated in confidence as the instructions on the form show in bold type and on the front page - “the information in this form is given and received on the understanding that it will be treated in confidence”. It was also argued that each of the Government officers who made reports which are now contained in the exempt documents was a “competent person” as defined in the regulations, which includes (and is stated on the front of the directions for completing the statutory declaration – form 1040) as being:
“•a person who is a manager or a co-ordinator of a women’s refuge or a crisis and counselling service that specialises in domestic violence: or
• a person who is in a position with
-decision making responsibility for women’s refuge or a crises and counselling service that specialises in domestic violence, that has a collective decision making structure; and
-responsibility for matters concerning domestic violence within the operations of that refuge or crises service….”
15. It was submitted that this indicates any disclosure of the information contained in these documents would be an unreasonable disclosure of information.
16. The respondent also submitted that in the case of Storay and Department of Immigration and Multicultural and Indigenous Affairs [2004] AATA 640, a case of similar facts to the one under review, the relevant test was whether disclosing the documents under section 45 would amount to a breach of confidence, as set out in Kamminga and Australian National University (1992) 15 AAR 297. It was put to the Tribunal that information was submitted in these documents to the Department with an expectation of confidentiality and that this goes to whether or not consent was given. In this case, there was no evidence that consent had been provided by any of the parties whose personal details appear in the relevant documents under review.
Consideration
17. The Tribunal has considered all of the submissions of the parties and the documentary evidence provided in forming its decisions in relation to the claims for exemption of the documents concerned.
18. Section 41(1) of the Act provides as follows:
“41 Documents affecting personal privacy
(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”
19. “Personal information” is defined in section 4(1) of the Act as follows:
“Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
20. The term “personal information” in section 41 of the Act was inserted by an amendment to the Act in 1991 and replaced the term “personal affairs”. The term “personal information” denotes a more narrow and specific reference to unique and personalised information. In the ordinary sense, it does not follow in every case that the names or designations of Government employees would necessarily be personal information that should be exempt in all circumstances, given the object of the Act and where it could not be said that there would be any personal detriment to the person concerned. However, it seems to me that in cases where officers work in areas which might be regarded as highly sensitive or which could result in retaliation or retribution, or in relation to any person where their personal safety might be at risk, including unwanted contact, humiliation and harassment, then such circumstances should be taken into account.
21. The above approach is confirmed by reference to “unreasonable disclosure” as contained in section 41(1). In Re Chandra (supra) at N257, the Tribunal said that:
“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information to be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not have wished to have disclosed without consent, and whether the information has any current relevance.”
22. Likewise, in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 438, Lockhart J said:
“This is not an appropriate case in which to examine definitively the circumstances that may constitute ‘the unreasonable disclosure of information’ relating to a person's ‘personal affairs’ because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that ‘every person’ has a ‘legally enforceable right to obtain access’ to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the ‘Australian community’ the right of access to information in the possession of the Australian Government. What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have, as its core, public interest considerations. The exemptions necessary for the protection of ‘personal affairs’ (s 41) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.
…
But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being ‘necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities’.”
23. Also, Heerey J said at page 441:
“Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”
24. In this case, what appear to be private rights of the individuals who are parties to the documents in question, is a microcosm of the interests of the public at large. The information is collected not only for the purpose of citizenship applications, in certain cases such as this one, they are also there to protect individuals who are otherwise vulnerable. While, as Heerey J said in Colakovski’s case, there maybe some unfairness or perhaps hardship which might be caused to some individuals if the information is released. This has to be given some weight even though it may not of itself be conclusive. However, whether the information per se is of any relevance to the affairs of Government, is more at the heart of the issue provided for in section 41(1). The specific information in question is relevant more in relation to the Government’s role in contributing to the peace, order and good Government within Australia. It is ultimately to contribute to the maintenance and maximisation of harmony of the community. Therefore, the information contained in these documents, specifically the personal information about the individual’s involved, could amount to an unreasonable disclosure particularly in the circumstances which are described in the statutory declarations and which allege some threat to the safety of the person named in those documents. In those circumstances, I think it would be unreasonable to disclose that information. Departmental officers and others named in those documents might otherwise perceive a risk if their details were revealed. This decision does not make any findings about the efficacy of those risks, but must merely accept the documents at face value. Provisions of the Act make it clear that safety is a key consideration in exempting documents from release, and if releasing personal information carried a risk as to personal safety, any suggestion that the applicant knows the identity of a person in a document is of little weight in seeking to show release would not be unreasonable. I would therefore exempt all of the documents under section 41.
25. The applicant was at pains to claim that the persons who prepared and signed some or all of those documents were known to him. On that basis, he claims that there is a reasonable basis for disclosing the information as it is information already in his possession. In fact, he maintained that one of the authors of a statutory declaration within the group of documents in question had told him that she had made such a declaration falsely. However, the applicant’s evidence amounts to nothing more than an assertion which is uncorroborated. While it was not specifically challenged, the applicant consistently failed to produce any witness who can provide a scintilla of evidence which is supportive of his assertions and which might negate the serious assertions in the statutory declarations.
26. In considering this evidence and his assertions, there is contrary and serious evidence which alleges some potential risks to the safety of at least his former spouse at the time of the completion of the statutory declarations. This cannot be ignored. It is not merely the disclosure of documents as required by the Act which should be considered. It would be pointless if the Act intended some superficial examination which could lead to serious safety consequences for members of the public. Safety of persons supplying information is therefore a public interest consideration and the applicant’s claims minimise the importance of the allegations made and to which he has not adequately responded. He is therefore not entitled to access to the documents sought on the basis of his submissions or his evidence. That claim must therefore fail.
27. In a complementary way, the Tribunal notes that the internal review decision of 15 November 2000 took note of section 37(1)(c) which provides for an exemption from disclosure where the information in the documents reveals a reasonable expectation that any persons life or physical safety might be endangered. From the evidence presented to the Tribunal, it is not clear that that risk has been negated or minimised. On that basis also, the Tribunal regards that section 37(1)(c) would be an adequate exemption for the documents concerned. It is a complementary and/or supportive reason to uphold exemption determined separately under section 41(1).
28. Section 45(1) of the Act provides as follows:
“Section 45
Documents containing material obtained in confidence
(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.”
29. It is clear from the Form 1040, that, as stated in the Guidelines to completion of the form, that “the information on this form is given and received on the understanding that it will be treated in confidence”. It might be argued that this should apply only to the person in respect of whose information is being reported. However, the reporting officers of the Department also compile and present their reports in the knowledge and expectation that the confidentiality of the information they provide will be treated in the confidential manner in which it is submitted and that it might be handled only by a small or limited number of personnel who are officially entitled to access such records. The preservation of the undertaking of confidentiality for the officers reporting, is undoubtedly regarded as essential to the integrity of the system which has been established to protect the interests of people in particular situations.
30. But whether there could be an action for breach of confidence, is set out in Kaminga’s case (supra) as documented in Storay (supra). This test is based on Gummow J in Corrs Pavey Whiting and Byrne and Collector of Customs for the State of Victoria (1987) 14 FCR 434 where, at 443, his Honour laid out a five pronged test. The questions to be answered are these:
(i)Could a referee, as plaintiff, identify with specificity the information in question?
(ii) Does the information have the necessary quality of confidentiality?
(iii)Was the information received by the defendant in such circumstances as to import an obligation of confidence?
(iv) Is there actual or threatened misuse of the information?
(v)Would there be a detriment to the referees if the documents were disclosed?
31. In relation to question (i) the documents have been presented to the Tribunal. The information relevant to this question is contained in Statutory Declarations and the identity of the authors is known. In relation to question (ii), it is clear from the Form that it was provided and/or received in confidence. It is noted that folios 85 – 88 were partially released previously. With respect to question (iii), it is apparent that the information on the Form was either intended by the person supplying that information and/or was certainly received by the department “…on the understanding that it will be treated in confidence”. An obligation of confidence is therefore expressed and/or implied. In relation to question (iv) as submitted by the respondent, if the information was misused, that would amount to a breach of the obligation of confidentiality. Given the information about domestic violence contained in those statutory declarations, there is on the face of the documents, reason to expect potential for misuse of the information. Court orders have been made in the past against the applicant and these relate to domestic violence. In relation to question (v), if the information about the applicant which is contained in the statutory declarations is correct, there could well be a detriment to the referees if the information is disclosed. The Tribunal does not make any determination about the factual basis of that information nor does it suggest that any of those allegations are true. Nevertheless, the information is to be accepted on the basis of “competent persons” who the deponents appear to be. If the information is not correct, there is no evidence to negate those allegations, and the applicant did not call any witnesses in that regard.
32. On the basis of the above, the Tribunal considers the disclosure of the documents, particularly forms 84, 85 and 86 would specifically amount to a breach of confidence if disclosed. Folio 81 contains sensitive information, a statement prepared by a Justice of the Peace and which was undoubtedly provided for the purpose of assisting a person who was assessed as being disadvantaged and potentially in danger. The Tribunal must assume that the person who provided that information in those circumstances stated, would have expected that it would have been treated confidentially. In relation to folios 87 and 88, the arguments are not as strong in relation to a breach of confidence for these documents. Nevertheless, given the sensitive industry and jurisdiction within which those officials work, while the Tribunal has already found that that document would be exempt under section 41 and 37(1)(c), there is impliedly an obligation of confidence in respect of the person who ordered that document where there may be a reasonable basis to suspect there may be safety concerns for that person. In any event, there has been found to be a specific exemption under section 37(1)(c) for the same reason.
33. These decisions follow as a matter of law and based on the evidence presented, notwithstanding that partial access to folios 85 – 88 has been granted to the applicant in relation to a previous application made in 2000.
34. The Tribunal therefore determines:
(i)that the decision of the delegate of the Minister on 29 November 2004, which was upheld on internal review on 20 January 2005, that folios 81 and 84 – 88, are exempt pursuant to sections 41 and 45 of the Act.
(ii)In respect of the preliminary orders made at the hearing in respect of section 64(1) of the FOI Act and section 35(2)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the unexpurgated versions of the documents which are the subject of this application, should remained sealed at the Tribunal and should be returned to the respondent following publication of this decision.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 2 December 2005
Date of Decision 22 February 2006
The Applicant was unrepresented
Solicitor for the Respondent Michael Palfrey, Clayton Utz
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