Commissioner for Fair Trading, Office of Fair Trading v The Australian Wine Consumers Co-Operative Society Limited (GD)
[2007] NSWADTAP 14
•14 March 2007
Appeal Panel - Internal
CITATION: Commissioner for Fair Trading, Office of Fair Trading v The Australian Wine Consumers Co-Operative Society Limited (GD) [2007] NSWADTAP 14 PARTIES: APPELLANT
Commissioner for Fair Trading, Office of Fair Trading
RESPONDENT
The Australian Wine Consumers Co-Operative Society LimitedFILE NUMBER: 059068 HEARING DATES: 29 January 2007 SUBMISSIONS CLOSED: 29 January 2007
DATE OF DECISION:
14 March 2007BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053047 and 053048 DATE OF DECISION UNDER APPEAL: 10/05/2005 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Atomic Energy Act 1953 (Cth)
Co-Operation Act 1923
Co-operatives Act 1992
Corporations Act 2001 (Cth)
Fair Trading Act 1987
Freedom of Information Act 1989
Insurance and Superannuation Commissioner Act 1987 (Cth)
Ombudsman Act 1974
Taxation Administration Act 1996
Workplace Injury Management and Workers Compensation Act 1998CASES CITED: The Australian Wine Consumers Co-Operative Society Limited v Commissioner for Fair Trading [2005] NSWADT 224
Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [2005] NSWADTAP 33
General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502, [2006] NSWCA 84
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1
Smith, Ferguson, Forti, Grimshaw & Coburn v R [1994] HCA 60; (1994) 181 CLR 338
Attorney-General (Cth) v Breckler (1999) 197 CLR 83
Signorotto v Nicholson [1982] VR 413
Commissioner of Police v NSW District Court (Perrin’s case) (1993) 31 NSWLR 606
The News Corporation v National Companies and Securities Commission (1984) 1 FCR 64, (1984) 8 ACLR 593
McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187, [2006] HCA 45
St Vincent Welch v Casino Control Authority [2001] NSWADT 89
University of New South Wales v McGuirk [2006] NSWSC 1362REPRESENTATION: APPELLANT
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading
The Australian Wine Consumers Co-Operative Society LimitedORDERS: 1. Appeal allowed; 2. Application remitted to Tribunal for redetermination.
REASONS FOR DECISION
1 The Tribunal has ruled, in reviewing an agency determination withholding documents from the applicant sought under the Freedom of Information Act 1989 (the FOI Act), that the secrecy provisions exemption (clause 12 of Schedule 1) can not be relied upon by the agency: The Australian Wine Consumers Co-Operative Society Limited v Commissioner for Fair Trading [2005] NSWADT 224. The agency now appeals.
2 The agency is the Commissioner for Fair Trading in her capacity as the Registrar of Co-operatives under the Co-operatives Act 1992 (Co-operatives Act). The applicant for documents and the applicant for review is the respondent to the appeal – the Australian Wine Consumers Co-Operative Society Limited (‘the Wine Co-operative’).
3 The executive of the Wine Co-operative had made two applications to the Commissioner for access to documents held by the Commissioner relating to complaints to the Commissioner from ordinary members of the Wine Co-operative about its administration.
4 Under the FOI Act an agency may refuse to release a document the subject of a request if it is an ‘exempt document’: s 25(1)(a). A document which contains ‘exempt matter’ is an exempt document: s 6. The principal meaning of ‘exempt document’ is ‘(a) a document referred to in any one or more of the provisions of Schedule 1’. Clause 12 of Schedule 1 provides:
5 The Tribunal below made the following finding of fact in relation to the refused documents at [10]:
‘ 12 Documents the subject of secrecy provisions
(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.
(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.’
6 The Commissioner argued that the offence provision in the Co-operatives Act at s 431 constituted a secrecy provision of the kind referred to in cl 12:
‘10 The respondent has provided the Tribunal, on a confidential basis, [with] copies of the documents that come within the terms of the two FOI requests of the applicant. I have examined these and I am satisfied that they all relate to complaints or queries received by the respondent. There is no need to provide any further detail in respect of the contents of these documents for the purpose of determining the preliminary issue.’
7 With the agreement of the parties, the Tribunal had dealt with the cl 12 issue as a separate question. A ruling in favour of the Commissioner was seen as sufficient to dispose of the proceedings, as cl 12 had been relied upon in relation to all documents refused. The Tribunal reached its conclusion that cl 12 was unable to be invoked relying substantially on the reasoning of the Appeal Panel in Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (No 2) [2005] NSWADTAP 33 (‘ the Law Society Case’ ), upheld by the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502, [2006] NSWCA 84 (‘ the WorkCover Appeal’ ).
‘ 431 Secrecy
(cf Vic Act s 451)
(1) A person:
(a) who is, or at any time was, engaged in the administration of this Act or the former Act, and
(b) who, except as provided by this section, records, makes use of or divulges any information obtained in the course of that administration,
is guilty of an offence.
Maximum penalty: 60 penalty units.
(2) Subsection (1) does not apply to:
(a) the recording, making use of or divulging of information in the course of the administration of this Act, or
(b) the recording or making use of information for the purpose of divulging it as permitted by subsection (3) or (4), or
(c) the divulging of information as permitted by subsection (3) or (4).
(3) Information may be divulged:
(a) for the purposes of criminal proceedings, or
(b) for the purposes of any proceedings under this Act or of an inquiry authorised by an Act, or
(c) with the consent of the person to whom the information relates, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) in accordance with a reciprocal arrangement under section 441.
(4) Information may be divulged to:
(a) the Minister, or
(b) the Treasurer, or
(c) the Commissioner of State Revenue, or
(d) the Auditor-General, or
(e) the Commissioner of Taxation, a Second Commissioner of Taxation or a Deputy Commissioner of Taxation holding office under a law of the Commonwealth, or
(f) the Australian Securities and Investments Commission, or
(g) the person who, under a law of another State, or of a Territory, administers a law of the State or Territory that relates to taxation or the imposition of a duty, or
(h) any special commission (within the meaning of the Special Commissions of Inquiry Act 1983) if:
(i) a person seeking information under a reciprocal arrangement under section 441, or
(i) the Registrar has received a written request in writing for information from the special commission, and
(ii) the Minister has given written approval to the Registrar of the communication of that information, and
(iii) the Registrar has given to that person written approval of the communication of that information, or
(j) a police officer exercising functions as such, or
(k) a person nominated by a person referred to in paragraphs (a)–(g), or
(l) any person, to whom, in the opinion of the Registrar, it is in the public interest that the information be divulged.
(5) For the purposes of this section, a person is, or was, engaged in the administration of this Act or the former Act if the person exercises, or at any time exercised, a function as:
(a) the Registrar holding office under this Act or the former Act, or
(b) an inspector appointed under this Act or the former Act, or
(c) an investigator appointed under this Act, or
(d) a person appointed or employed for the purposes of this Act or the former Act.
(6) In this section:
divulge, in relation to information, means:
(a) communicate the information verbally, or
(b) make available a document containing the information, or
(c) make available anything from which, by electronic process or otherwise, the information may be obtained, or
(d) communicate the information in any other manner.
former Act means the Co-operation Act 1923.’
8 An appeal against a decision made in proceedings for the review of a reviewable decision, as here, may be made as of right on a question of law; and, by leave, may be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113. The Commissioner’s appeal is a question of law appeal only.
9 The Commissioner submits that the Tribunal applied aspects of the reasoning of the Appeal Panel that were not expressly considered or approved by the Court of Appeal in the WorkCover Appeal. The Commissioner invites this Appeal Panel to reconsider that reasoning. The Commissioner contends that her decision to refuse access to the disputed documents is consistent with the Court of Appeal’s reasoning.
10 The Commissioner’s submission is that the receipt and taking of action in relation to complaints and queries concerning the conduct of a registered co-operative are activities undertaken ‘in the administration of this Act’, and accordingly a person who receives such information or generates information based on such information is a person ‘engaged in the administration of this Act’ within the meaning of sub-s (1)(a). That person is guilty of an offence if he or she divulges the information otherwise than as permitted by the exceptions found in s 431. Consequently, the submission is that documents withheld all contained matter the disclosure of which would have given rise to an offence under s 431, and therefore the contents of the documents constitute exempt matter of the kind referred to in cl 12(1).
11 The scope of cl 12(1) is modified by sub-cl (2). Sub-clause (2) is to be understood as an elaboration of the reference in sub-cl (1) to ‘specified qualifications or exceptions’. For sub-cl (2) to be applicable, a relevant ‘qualification’ or ‘exception’ must be identified.
12 The Commissioner’s submission is that s 431 has no such qualification or exception; and therefore sub-cl (1) can be relied upon. In this regard, the Commissioner contrasts s 431 with the statutory provision in issue in the Law Society case: s 243 of the Workplace Injury Management and Workers Compensation Act 1998. While there are many similarities in the approach taken by s 431 and s 243, the crucial differences have to do with the presence in s 243 of the exception ‘without lawful excuse’ and its absence in s 431. Section 243 provides:
13 The Commissioner’s submission is that the Court of Appeal in the WorkCover Appeal upheld the Appeal Panel’s reasoning on a narrow basis. The Court was satisfied that there was an exception in the secrecy provision which covered the circumstance of a disclosure under the FOI Act. Accordingly, it could not be concluded that the disclosure would have been an offence against that statute.
‘ 243 Disclosure of information
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with section 72 (Inspection of relevant claims information etc), or
(e) in accordance with the requirement imposed under the Ombudsman Act 1974, or
(f) with other lawful excuse.
Maximum penalty: 50 penalty units or imprisonment for 2 years.
(2) The Authority may disclose any information obtained in connection with the administration or execution of this Act to:
(a) the Council (including a committee of the Council) and any consultative body established by the Authority for the purposes of the workers compensation legislation, and
(b) the Chief Commissioner of State Revenue under the Taxation Administration Act 1996, and
(c) the Insurance and Superannuation Commissioner under the Insurance and Superannuation Commissioner Act 1987 of the Commonwealth, and
(d) any other person or body prescribed by the regulations for the purposes of this paragraph.
(3) In this section, this Act includes the 1987 Act and the former 1926 Act.
(4) In this section, a reference to the Authority is taken to include a reference to the Nominal Insurer.’
14 The leading judgment was given by McColl JA. Her Honour said:
15 The concession made by WorkCover represented a change of position as compared to the way her client put its case to the Appeal Panel. It is helpful, we think, to set out the part of the Appeal Panel’s reasons dealing with this point:
‘ Secrecy exemption: consideration
176 Ms Allars [counsel for WorkCover] accepted that disclosure of the disputed documents because of a requirement under the FOI Act would be a disclosure “with lawful excuse” within s 243(1)(f) of the Workplace Injury Management and Workers Compensation Act 1998. She also accepted that such a disclosure would not, therefore, constitute an offence. She accepted that the consequence of this was that the disputed documents fell within cl 12(2) (quoted at [17]) but asserted that cl 12(1) was, prima facie, applicable and the documents were exempt.
177 The Law Society argued that WorkCover’s proposed construction would produce absurd consequences and impermissibly read down cl 12(2).
178 In my view the tension between cl 12(1) and cl 12(2) which concerned the Appeal Panel is more apparent than real. Clause 12(1) is a general provision which establishes that a document is prima facie exempt if its disclosure would constitute an offence, whether or not the provision creating the offence is subject to defeasance by virtue of one or more qualifications or exceptions.
179 Clause 12(2) is a specific provision which provides that if disclosure of the documents would not constitute an offence because it would fall within some qualification, exception or excuse, they are not exempt.
180 This construction recognises the presumed intention of parliament that where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant): see Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1 at 29 per Dixon J; Smith, Ferguson, Forti, Grimshaw & Coburn v R [1994] HCA 60; (1994) 181 CLR 338 at 348 per Mason CJ, Dawson, Gaudron and McHugh JJ.
181 Accordingly the Appeal Panel did not err in law in rejecting WorkCover’s secrecy exemption claim.’
16 The Commissioner submits that all but one of the exceptions in s 431 refers to quite specific situations, and none of those include disclosure pursuant to the FOI Act. The exception that is more loosely expressed is found at s 431(4)(l) – disclosure to ‘(l) any person, to whom, in the opinion of the Registrar, it is in the public interest that the information be divulged’.
‘169 As to the alternative argument, WorkCover submitted that disclosure in response to an FOI request was not a ‘lawful excuse’ under paragraph (f), since there was no ‘answer, defence, justification or other legal right or immunity’ by which any of the documents could be disclosed, citing Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [17]. It submitted in this regard that disclosure in response to a request under the FOI Act could not constitute such a lawful excuse, because cl 12(1) made it plain that the FOI Act is not intended to require officers to disclose material, if disclosure would be an offence against the Act.
170 We note in this context that s 65 of the FOI Act provides that if a person releases a document under the Freedom of Information Act in good faith, then he or she will not be guilty of an offence.
171 For reasons similar to those given in connection with the meaning to be given to exception (b), we are of the view that the defence of ‘lawful excuse’ could be applied to release under the FOI Act.
172 The phrase ‘lawful excuse’ was considered by the High Court in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 in the context of a regulation which provided that a trustee must not fail to comply with an order without ‘lawful excuse.’
173 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that the trustee would have a ‘lawful excuse’ for failing to comply with the order if he or she has ‘a reason recognised by law as sufficient justification for such failure, whether by way of answer, defence, justification, or other legal right or immunity’ (at p 103, [17]). A similar approach was taken by the Victorian Supreme Court in Signorotto v Nicholson [1982] VR 413 when it held that ‘lawful excuse’ in the Victorian Evidence Act meant a valid excuse supported by law (at 417).
174 On this reasoning, the defendant in s 243 offence proceedings could argue that the release was effected pursuant to the FOI Act. Provided it was not a mischievous release done in bad faith, we do not see any reason why such a release would not found a defence. A valid release under the FOI Act is ‘a reason recognised by law’ for disclosure of documents in the possession of an agency. The Tribunal is empowered to make such a release, and s 65 of the FOI Act (immunity from offence provisions if disclosure made under the Act in good faith) would appear to provide some endorsement of this view.’
17 Counsel for the Commissioner acknowledged that were the Commissioner (or authorised delegate) to determine that a requested document classifiable as exempt should nevertheless be disclosed (as is permitted by s 25(1) of the FOI Act, consistent with the objective of FOI legislation to promote access to all government documents), such a disclosure could be achieved by means of the discretion given by sub-s (4)(l) if the opinion was formed that ‘it is in the public interest that the information be divulged’.
18 We agree that there is no exception within s 431 other than sub-s (4)(l) which might provide a basis for disclosure in compliance with s 431.
19 The Wine Co-operative’s submission is that s 431 is inapplicable. It submits, first, that documents the subject of the request are not governed by the Co-operatives Act as the information they contain is not information of a kind to which s 431 attaches. The Co-operative refers to sub-s (1)(a) which imposes the obligations contained in s 431 on ‘[a] person: (a) who is, or at any time was, engaged in the administration of this Act or the former Act’. The contention is that the Commissioner was not ‘engaged in the administration’ of the Co-operatives Act in keeping documents which record complaints and queries received from aggrieved members of a registered co-operative or creating documents which refer to the contents of those complaints. The Wine Co-operative refers to the detailed scheme of regulation found in the Co-operatives Act, and notes that there is no provision in the scheme (in contradistinction to the position often found in regulatory statutes) for the regulator to receive and deal with complaints in relation to the conduct of the regulated parties.
20 The Wine Co-operative does not question that the Commissioner qua Commissioner has wide powers to receive and deal with consumer complaints under the provisions of the Fair Trading Act 1987. The argument is that the Commissioner qua Registrar of Co-operatives must show that the Co-operatives Act applies to the documents in issue.
21 The Tribunal outlined the structure of the legislative scheme as follows:
22 The Tribunal dealt with the Wine Co-operative’s argument that the documents were not held in connection with the administration of the Act as follows:
‘7 The applicant is a co-operative registered under the Co-operatives Act 1992 . That Act provides for the establishment of co-operatives and the regulation of their operations. The Act makes provision in respect of the formation of a co-operative (Part 2), the legal capacity and powers of a co-operative (Part 3), membership of a co-operative (Part 4), rules of a co-operative (Part 5), requirements for active membership (Part 6) shares in a co-operative (Part 7), voting (Part 8), management and administration of co-operatives (Part 9) and other matters relating to the operation of a co-operative. In essence the Act provides for the incorporation as a co-operative of any group (including bodies incorporated under the Corporations Act 2001 (Cth)) that is willing to abide by the traditional co-operative principles which included democratic control, returns on share capital being limited, commitment to education of members and employees and co-operation with other co-operative societies at the local, national and international level. While a co-operative registered under the Co-operatives Act 1992 is not a corporate entity coming within the Corporations Act 2001 (Cth) and visa versa [sic], the Co-operatives Act 1992 contains similar provisions regulating a co-operative to that which is contained in the Corporations Act 2001 (Cth) for a corporation.
8 Part 15 of the Co-operatives Act 1992 makes provision for the administration of the Act and s.409 vests in “The Registrar” responsibility for the general administration of the Act. That section also provides that the Registrar is conferred with those functions prescribed under the Act. These include the keeping of a register of co-operatives (ss410 & 410A) and those functions contained in Part 14, which relate to the supervision and protection of co-operatives. These particular powers are discussed more fully below.’
23 We agree with the Tribunal. The Registrar is allowed to intervene in the administration of a co-operative in the ways noted by the Tribunal. The Registrar could only responsibly intervene in those very serious ways after forming an opinion based on information. A very usual source of information for that purpose, we think, would be complaints made by members of a co-operative.
‘40 The applicant argued that the word “administration” should be narrowly construed to mean those functions, which are conferred on the Registrar under the Co-operatives Act. These it contends do not include a function of complaint handling. While the applicant is correct in that the Registrar is given no express complaint handling function, this does not mean that the functions, which are expressly conferred on the Registrar do not include, as part of that function, the ability to receive and deal with complaint relating thereto. Under s.409 of the Act the Registrar is vested with the role of administering the Act and such other functions that are conferred on the Registrar under the Act. These other functions are primarily those set out in Part 14 of the Act. Under this Part the Registrar is vested with wide powers to supervise compliance by co-operatives with the Act and where there is a failure to comply to take action to protect the interests of co-operatives, their members and creditors and the public. In this regard the Registrar has power to appoint an inspector (s.372), an investigator to conduct a formal inquiry into the affairs of a co-operative (s.386 – such an appointment is a joint appointment together with the Minister) and to call a special meeting of a co-operative (s.402). In my opinion, these express powers would include complaint handling as these will often be the trigger on which the Registrar will exercise his powers under Part 14 of the Act.
41 In my opinion, the documents for which exemption is claimed can all be described as containing information that the respondent directly or indirectly obtained in the course of his administration of the Co-operatives Act 1992.’
24 The Wine Co-operative’s next argument in reply draws on the wider reasoning in the Appeal Panel’s Law Society decision adopted in turn by the Tribunal. Counsel for the Commissioner submitted that the Appeal Panel was in error in relation to the other bases it gave for not applying the secrecy provisions exemption.
25 The Appeal Panel in the Law Society case referred to the history of the secrecy provisions exemption in Australian law, referring first to its antecedents in US FOI law. It noted that the first two Australian laws on the subject (the Commonwealth Act and the Victorian Act), like the US law, confined the scope of operation of the secrecy provisions exemption to documents which were the subject of secrecy provisions that ‘specifically’ applied to them. The Appeal Panel continued:
26 The Appeal Panel continued:
‘111 New South Wales’ cl 12 does not have the same emphasis on the information held in the agency records being ‘specifically’ exempted. Instead it seeks to protect ‘matter the disclosure of which’ would constitute an offence. It will be seen, in comparison, that the original US law is quite exacting. It excludes from para (A) of cl (3) provisions that involve a discretionary element as to whether access is given or not. In the second alternative in para (B) it uses, like the NSW provision, the word ‘matter’ but in the context of the expression ‘particular types of matters’. It will be seen that the Commonwealth and Victorian sections 38 stay relatively close to the approach reflected by the US exemption.’
27 The Appeal Panel continued:
‘113 In our view an approach must be adopted to the interpretation of cl 12(1) which preserves the effective operation of the NSW FOI Act. The clearest case where cl 12 would be applicable is one where there is, in the way sought to be reflected in the Commonwealth and Victorian provisions, a close or precise correspondence between the type of matter the subject of the claim for exemption and then a description of matter of the same type in the offence provision.’
The Appeal Panel then reviewed various cases in the Tribunal where the secrecy provisions exemption had previously been considered.
28 The submissions of the Commissioner is that this is, as the passage quoted from the Minister’s speech to Parliament at para [132], an instance where the Parliament decided to adopt a more protective position in relation to government documents than had occurred in the instance of the Commonwealth and Victorian Acts passed seven years before. It did promise a review, but that has never occurred. The result therefore is that cl 12 provides government agencies in New South Wales with a greater power to refuse documents than is found, for example, in the Commonwealth and Victorian schemes.
‘129 WorkCover also relies on the looser text of cl 12, as compared to the Commonwealth and Victorian examples, to support the submission that the NSW exemption was intended to have a broader and more generous sphere of operation; and that, therefore, only limited weight can be given to the many Commonwealth and Victorian cases which have turned on the question of whether the offence provision relied upon is sufficiently ‘specific’ in its terms to confer protection on the information in dispute.
…
132 The Minister introducing the Bill was less than clear as to what role cl 12 was seen as playing in the scheme of the FOI Act. In the Second Reading Speech to the Freedom of Information Bill (No 2) 1988 he said (Legislative Assembly, Parliamentary Debates (10 November 1988) 3165):
133 All that can be gleaned from these words is that the Minister was concerned that somehow the FOI Act might render secrecy provisions ineffective if a provision like cl 12 was not included in the FOI Act. There is nothing to suggest that the Minister intended the secrecy exemption to operate as a vehicle which would, in effect, allow an agency to refuse any agency document on the basis that disclosure under the Freedom of Information Act would infringe a global provision conferring confidentiality on all documents held by the agency.
‘The secrecy exemption has caused consternation in some circles, but the principles behind its inclusion in this Bill is sound. Freedom of information legislation is not an appropriate vehicle for striking down specific secrecy provisions in other legislation. These provisions should not be rendered void by an across-the-board application of the Freedom of Information Act.’
134 Indeed, cl 12(2) appears to have been an attempt to ameliorate that possibility. The provision, to reiterate, is:
135 This seems to be a roundabout attempt to cover the situation where a FOI access applicant is seeking documents about himself or herself; reflecting the qualification found in the US’s s 552(b)(c). That is how Cossins, Annotated Freedom of Information Act NSW (1997) [112.7] interprets the provision: ‘Clause 12(2) is designed to preserve a person’s right of access to any personal or other information that the Government is lawfully permitted to disclose to them. For example, if disclosure of information would not be an offence under a secrecy provision because disclosure is permitted to the person from whom the information was obtained, then disclosure will be permitted under the FOI Act. This provision, thus, places a practical limitation on cl 12(1) and confines the scope of cl 12(1) to the terms of the secrecy provision in question.’
‘A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.’
136 At the time of its introduction, the Government promised a review within two years of cl 12, with a view to prescribing a list of secrecy offence provisions to which the cl 12 exemption would apply. This has never occurred. Some further light on the Government’s intention at that time is provided by the debate on the bill in committee. The Australian Democrats moved for repeal of cl 12. The Government rejected the motion, giving the following reasons (Legislative Council, Parliamentary Debates (8 December 1988) 4687):
137 Were this Tribunal to accede to WorkCover’s submission, and give cl 12 the broad, literal interpretation it advocates, the FOI Act would, as a practical matter, cease to have any application to many parts of the New South Wales public service. In our view a purposive approach to the application of cl 12(1) must be taken, one which ensures that the objectives of the FOI Act are maintained, especially in situations where there secrecy provision relied upon does not refer specifically to the kind of information for which exemption is claimed. Similar thinking is, we note, reflected in the context of the law of confidentiality: see the first of the Gummow Principles quoted at para [100] above.
‘ The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [5.57]: …
The proposed amendment seeks to delete the secrecy exemption. It is not appropriate for general legislation, such as the Freedom of Information Bill, to override specific secrecy provisions in many other measures. For a variety of reasons in those other measures the Parliament made a decision that the information ought to be secret. The Premier has indicated that consideration will be given to reviewing the secrecy provisions of the individual legislation. We will do that. Legislation will be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts, rather than have a freedom of information bill which would eliminate all secrecy in one fell swoop. If this amendment is successful, not one member of this House would have any idea what he or she was doing. I would not have a clue how many different secrecy provisions are included in individual statute laws in this State.
The acceptance of this amendment may jeopardize someone’s life, if secrecy provisions in other legislation that are designed to protect life are eliminated. For example, witness protection is aimed at keeping witnesses away from those who might harass them. A few hours ago similar legislation was passed to protect witnesses. I remember an occasion when a bank teller who had witnessed an armed hold-up in a bank gave information to the police – her name and address – and soon after that the bank robber telephoned her and threatened that he would blow her to pieces if she gave evidence against him in court. Do honourable members wish to eliminate protection that is provided by such secrecy provisions? It is irresponsible. The Government rejects the amendment.’
138 We note also that s 61 of the FOI Act requires the agency to justify a determination. As Kirby P noted in Commissioner of Police v NSW District Court (Perrin’s case) (1993) 31 NSWLR 606 at 625, ‘the question [in relation to each exemption] is not why the information should be disclosed but why it should be exempted’.
139 The objectives of the FOI Act are:
140 The Castle documents contained professional advice of a usual kind. It was obtained to assist WorkCover in its negotiations to achieve implementation of Government policy. This kind of advice is often released selectively to bolster positions taken in deliberations and negotiations. Sometimes it is released in whole. There is no specific guidance in the legislation as to how such advices are to be treated.
‘ 5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(2) The means by which it is intended that these objects are to be achieved are:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.’
141 The documents, we recognise, would have had some sensitivity at the height of the conflict between WorkCover and the Law Society in the run-up to the 2003 legislation. But that sensitivity is now much less. Some marker of this is provided by the fact that the Clarke Report was released by the Minister not long after its provision in confidence.
142 Neither this ground (that release would be an offence) nor the confidentiality ground was relied upon by WorkCover in the access application. We, of course, accept that it is always open to agencies in proceedings before the Tribunal to vary or add to the grounds of exemption upon which they rely. Nonetheless we have some doubt as to whether there was any concern at agency level that FOI disclosure might somehow breach s 243. We doubt whether WorkCover officers have at any stage seriously seen this as a case where the barrier to provision of the document involved, for the agency, any concern about possible transgression of s 243. This point received no emphasis in their affidavits.
143 The dynamic operating in this process has been, and may well remain, one of selective provision of information between the parties to the extent that each sees provision as serving its interests in the resolution of the controversy, with the Government – naturally – in making choices as to release of information being keen to secure an outcome consistent with its overall policy objectives. There is, as noted earlier, a degree of imbalance in the relationships on this issue, because of the availability of the rights under the FOI Act to non-government parties.
144 The following is a list of some factors we consider should be taken into account in determining whether an agency has discharged the onus in the instant case of justifying non-disclosure of information, because its ‘nature’ is such that disclosure would constitute an offence:
(a) the degree of direction given by the legislation to the agency as to how the kind of information under notice is to be managed and divulged;
(b) the breadth of any powers given to the agency to release the kind of information under notice;
(c) the intrinsic sensitivity of the information; and
(d) the likelihood that information of this kind would ever be released to the applicant having regard to the wider circumstances of the relationship between the applicant and the agency, to the extent that they are known.’
29 On further consideration, we agree essentially with the submissions of the Commissioner. Though the Appeal Panel on the earlier occasion sought to read down the word ‘matter’ so as to give it a connotation in line with that found expressly in the Commonwealth and Victorian Acts, we do not think this approach can be maintained.
30 It is apparent that the exemption provisions of the FOI Act proceed, for the most part, in two ways. Either they declare a document to be exempt by reference to the environment or process to which it belongs (for example, cl 1 – documents ‘prepared for submission to Cabinet’, cl 19(1)(b) – documents ‘held in a public library’ the subject of conditions restricting access) or they declare a document to be exempt by reference to whether it contains ‘matter the disclosure of which’ would give rise to a particular harm (numerous examples). In our view, the word ‘matter’ is simply used to refer to the substance of the document, and is used as part of a drafting formula which seeks to ensure that the agency when considering whether a document is affected by an exemption looks item by item at the contents of the document.
31 Another line of argument in this case related to the relevance of the decision in The News Corporation v National Companies and Securities Commission (1984) 1 FCR 64, (1984) 8 ACLR 593. In that case the Full Court of the Federal Court (Bowen CJ, St John, Fisher JJ) held that the ‘secrecy provision’ upon which the agency sought to rely to withhold documents was not one that fell within the scope of the Commonwealth secrecy provisions exemption (Commonwealth Freedom of Information Act 1982, s 38). Section 38, as then drawn, provided:
32 In this instance the secrecy provision upon which the agency sought to rely simply provided:
‘38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.’
33 It can be seen that this is a global provision that simply attaches consequences to any non-official use of official information by an officer. The Full Court considered that this kind of provision did not have the degree of focus required by s 38 of the FOI Act in that it could not be said that this enactment applied ‘specifically to information of a kind contained’ in the refused documents. The Full Court gave as an example of a provision that had sufficient specificity s 48 of the Atomic Energy Act 1953 which proscribed the disclosure of photographs, maps, sketches, plans and the like which contained ‘restricted information’. The Court noted that ‘restricted information’ was specifically defined.
‘47(1). Subject to this section, a person who is, or has at any time been -
(a) appointed for the purposes of this Act or any other prescribed Act;
(b) engaged as a member of the staff of the Commission; or
(c) authorized to perform or exercise any function or power of the Commission or any function or power on behalf of the Commission,
shall not, except to the extent necessary to perform his official duties, or to perform or exercise such a function or power, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by him by reason of his being or having been so appointed, engaged or authorized, or make use of any such information, for any purpose other than the performance of his official duties or the performance or exercise of that function or power.
Penalty $5,000 or imprisonment for one year, or both.’
34 Despite the views expressed by the Appeal Panel previously, we now accept that the News Corporation case can not be relied upon in interpreting cl 12 in the NSW legislation. Clause 12 does not have the exactitude of language found in s 38 of the Commonwealth Act.
35 Nor on further consideration do we think that an argument based on the policy objectives of the FOI Act can be employed to ‘read down’ the meaning of the word ‘matter’. In the Commissioner’s submission, this is an instance analogous to that considered by the High Court in McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187, [2006] HCA 45 (6 September 2006) of a statutory provision within the Act being expressed in a way which might be seen as at odds with the objects of the legislation. The Commissioner referred in that regard to the observations of Callinan and Heydon JJ at [111]:
36 We note that in the Law Society case , the Law Society did not mount a case on the broader grounds adopted by the Appeal Panel in its reasons. The Law Society’s case was that disclosure pursuant to an FOI request could be done legitimately relying on one or more of the exceptions found in the secrecy provision.
‘In short, the relevant sections clearly and designedly limit the broad and high-sounding objects. Furthermore the object set out in s 3(1)(b) is, itself, in terms, stated to be "limited ... by exceptions and exemptions necessary for the protection of essential public interests", …’
37 We note that in the present case the Wine Co-operative has not relied on the wider reasoning of the Appeal Panel based on the onus of proof in s 61 of the FOI Act. For similar reasons to those already given, we do not think that factors of this kind can properly be employed in making the specific determination of whether a document is exempt for the purposes of cl 12.
38 In summary, we agree with the submissions put by counsel for the Commissioner that the proper approach to the interpretation of cl 12 is to be found in the approach employed by the Court of Appeal in the WorkCover Appeal. The agency must first determine whether the ‘matter’ for which exempt status is claimed is ‘matter’ of a kind that it is an offence to disclose; and then examine whether there is any exception or qualification in the offence provision allowing for disclosure under the FOI Act. That is clearly the case where there is an express exception in the secrecy provision permitting disclosure under the FOI Act (as in the Casino Control Act, see further St Vincent Welch v Casino Control Authority [2001] NSWADT 89). The WorkCover Appeal makes it clear that a less-specifically expressed exception such as ‘with lawful excuse’ may be treated as an exception or qualification providing a basis for FOI disclosure.
39 We uphold the appeal of the Commissioner.
40 As noted above at [28] in the extract from the Appeal Panel’s reasons in the Law Society case, the Government of the day in 1988 promised the Parliament and the community of New South Wales that the secrecy provisions exemption would be reviewed. The Premier of the day committed the Government to ensuring that all legislation containing secrecy provisions would be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts. The Premier of that time failed to implement the promise, and no action has been taken since.
41 We repeat the concern previously expressed that active reliance by agencies on secrecy provisions in their statutes could mean that the FOI Act will cease to have any application to many parts of the New South Wales public service thus undermining the very purpose of that legislation. Secrecy provisions are a commonplace of agency statutes in New South Wales. The result is an unsatisfactory one.
42 In our view the appropriate course is to remit the matter, as it remains part-heard before the Tribunal.
43 The Tribunal has a residual discretion, like that of the agency under s 25(1), to order the release of an exempt document: University of New South Wales v McGuirk [2006] NSWSC 1362 (Nicholas J) at [81] ff. Accordingly, if the Tribunal concludes in light of these reasons that the secrecy provisions exemption is applicable to all the documents, contrary to the understanding of the parties prior to that decision that conclusion does not now dispose of the matter. It remains open to the Tribunal to consider whether to exercise the residual discretion in favour of the applicant. It may be that the four factors referred to by the Appeal Panel in the Law Society case may have some value as a possible guide in that task.
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