Daws and Department of Agriculture Fisheries and Forestry and Animals Australia Inc (Joined Party)

[2008] AATA 1075

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1075

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5512

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM DAWS

Applicant

And DEPARTMENT OF AGRICULTURE FISHERIES & FORESTRY

Respondent

And             ANIMALS AUSTRALIA INC
  Joined Party

DECISION

Tribunal The Hon Robert Nicholson, Deputy President

Date26 November 2008

PlacePerth

Decision  The application is dismissed.

...(sgd) Hon Robert Nicholson.....

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – whether document exempt as making unreasonable affectation on business, commercial or financial affairs of a company exporting live stock – application by joining party for access to investigation report – existence of report and some particulars of it appearing in statutory report to Parliament – report identifying name of company, month and year of export of live stock, ports and mortality rates – some deletions proposed by decision maker

LEGISLATION

Freedom of Information Act 1982 (Cth), ss 11(2), 43, 43(1)(c), 43(1)(c)(i), 43(1)(c)(ii)

Australian Meat and Live-stock Industry Act 1997 (Cth), ss 57AA, 57AA(3)

Administrative Appeals Tribunal Act 1975 (Cth), s 35(2)(c), 37

Navigation Act 1912, s 425(1AA)

CASES

Searle Australia Pty Ltd v Public Industry Advocacy Centre (1992)108 ALR 163.

Re Livestock Transport and Trading Co KFC and Australian Maritime Safety Authority [1991] AATA 340

Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429

REASONS FOR DECISION

26 November 2008 The Hon Robert Nicholson, Deputy President  

1.      The applicant brings an application for a review of a decision of the respondent made on 26 October 2007. The decision was set out in a letter from the National Manager, Animal and Plant Exports and Imported Foods Safety Branch of the Department of the respondent to the applicant at the company of which he is a director, Emmanuel Exports Pty Ltd.  (Although the application stated it was brought personally, the applicant accepted at the hearing that he is acting on behalf of the company).

2.      The decision maker had for consideration a request by the joined party dated 15 August 2007 for access to copies of Australian Quarantine and Inspection Service (‘AQIS’) reports undertaken after live shipments of Australian animals in respect of which, on the applicant’s assertion, the mortality rates had exceeded the reportable level as laid out in the Australian Standards for the Export of Livestock.   The request was made in reliance on the Freedom of Information Act 1982 (‘FOI Act’) (Cth). So far as the request related to the applicant’s company, it was stated that Parliamentary records indicated shipments in August 2005 to September 2005 from Fremantle to Gulf countries in which 1569 sheep died, being a mortality rate of 2.66%, and in October 2005 to November 2005 from Fremantle, one to Jeddah (1 727 sheep dead with a mortality rate of 1.99%) and another to Gulf countries (1 791 sheep dead with a mortality rate of 1.71%). It was noted in the request that the last 2 shipments appeared to be below the mortality trigger level but that the Parliamentary record indicated that the second voyage had triggered an audit of all the exporters’ procedure so that it was assumed a report had been completed. In particular he was required to consider whether the document of which disclosure is sought is exempt under s43 of the FOI Act. The letter stated that the applicant had argued that the documents contained information vital to the company’s business and should be exempt in its entirety. Although the request referred to these shipments, the application for review was run in the Tribunal on the basis that it related only to the first of the above three shipments and concerned only one document.

3.      Before the primary decision-maker, the applicant had contended it would be impossible for the document to be released, even with passages deleted, in a format which would not be damaging to the business of the company. In the request the joined party had stated that it would accept the document with the personal or commercial identifying names obscured to eliminate the need for the respondent to consult with those parties.

4. In the letter containing her decision, the decision maker advised that she had decided not to accept the applicant’s submission. She stated that her views had been significantly influenced by the fact that regular reports which disclosed a significant amount of information concerning the business of the company had already been made public through the reporting process described in s 57AA of the Australian Meat and Live-stock Industry Act 1997 (Cth) (‘AMLI Act’). She relied particularly on the requirements of s 57AA(3).

Section 57AA reads as follows:

(1)Within one month after the end of each reporting period (see subsection (5)), the Secretary must give the Minister a report in accordance with subsection (2).

(2)The report must contain the information set out in subsection (3) that has been provided to the Secretary during the reporting period in relation to the carriage of live‑stock on any voyage to a port outside Australia (whether or not during the reporting period).

(3)The information is to be based on reporting by the master of the ship under the Marine Orders (see subsection (5)) and is to set out the following:

(a)the name of the exporter;

(b)the month and year in which the completion of the loading of the live‑stock occurred;

(c)the port or ports at which the loading took place;

(d)the port or ports at which the live‑stock were discharged;

(e)the month and year in which the completion of the discharge of the live‑stock occurred at each port;

(f)duration of the voyage;

(g)the type or types of live‑stock;

(h)the number of each type of live‑stock loaded;

(i)the total mortality for each type of live‑stock;

(j)the percentage mortality for each type of live‑stock;

(k)any action taken by the Secretary in relation to the exporter as a result of the reporting by the master of the ship.

(4)The Minister must arrange for a copy of the report to be tabled in each House of the Parliament within 15 sitting days of the House after the report is given to the Minister.

(5)In this section:

Marine Orders means orders under subsection 425(1AA) of the Navigation Act 1912.

reporting period means:

(a)the period of 6 months starting on 1 July or 1 January (whichever occurs first) after the commencement of this section; and

(b)each subsequent period of 6 months.  

5. The decision maker advised in her letter that she intended to release the reports sought with certain identifying information (‘such as ports of loading and unloading’) deleted. She considered that those deletions would substantially address the concerns which the applicant raised about the risk of third party interference with his company’s business following disclosure under the FOI Act.

6. Following the application for review having been brought to the Tribunal and the joined party having been added, an order was made on 6 June 2008 pursuant to s 35(2) (c) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) (Cth) prohibiting the disclosure to any person other than the applicant, the respondent and it’s representatives, and staff of the Tribunal of certain documents lodged with the Tribunal. The order applied to documents numbered T1 to T8 (pages 1 to 65) lodged by the respondent on 20 December 2007 in accordance with s 37 of the AAT Act; also the applicant’s statement dated 1 April 2008 and the respondent’s Statement of Facts and Contentions dated 29 May 2008. The effect of this order was to prohibit the provision of those documents to the joined party.

7.      As a consequence of the order of confidentiality having been made and the joined party being represented on the hearing of the application for review, matters proceeded as follows. The joined party accepted that it could not be part of the submissions made by the applicant and the respondent and would not seek to do so. As a result the joined party was heard firstly, making its submissions on the approach which the Tribunal should take to the issues before it. The applicant and respondent replied to those submissions in the presence of the joined party. The joined party then left the hearing and submissions on remaining matters were made by the applicant and respondent.

8. On this review the Tribunal is required to consider whether the document to which access is sought is an exempt document as a consequence of the application of s 43(1)(c)(i) or (ii) of the FOI Act. Those provisions read:

(1)A document is an exempt document if its disclosure under this Act would disclose:

(a)…

(b)…

(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:

(i)the disclosure of which 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 organization or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth 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.

It is not contended that any of the further sub-sections of s 43 have any relevance to

this application.

9.      Also before the Tribunal was the document which the decision maker proposed be released. This was the original document (the AQIS investigation report) with deletions made in it for the purposes which the decision maker had characterised in her letter.

10.     The applicant submitted that the company had a high reputation as being ethical and lawful. He said the industry in which it was engaged was a highly transparent one. If the access were granted to the report with or without deletions, its contents were capable of being used out of context and to the disadvantage of the company i.e. its business would unreasonably affected adversely.  It submitted that if access were granted to the document to the joined party, its past conduct would suggest that it could be used adversely to the company.

11. The respondent did not contest whether the information in the document was commercially sensitive. It drew attention to the provision of s 11(2) of the FOI Act which provides:

‘Subject to this Act, a person’s right of access is not affected by:

(a) …..; or

(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.’

It was submitted for the respondent that the effect of this provision was that conjectures by the applicant as to what may be the reasons for the joined party seeking access  could not be taken into account by the agency (the respondent) to form a belief to be taken into account in determining the joined party’s right of access.

12. The respondent also submitted that the number of concerns of the applicant in relation to identification were not an issue in light of what already was published before Parliament as a consequence of the provisions s 57AA of the AMLI Act. These identified the company by name, identified the port of loading and unloading and the numbers and percentage of mortalities. Consequently, so far as disclosure had taken place by that means, any reputational impact had already had the possibility of operating due to the release of that information into the public arena via Parliament.

13.     Further the respondent submitted that the joining party clearly knew that the applicant was appearing in his capacity as director of his company. Further that the joining party was seeking an investigation report footnoted in the material already available to Parliament and so was aware that the investigation had taken place in relation to exports involving the company. Consequently, the involvement of the applicant’s company in the investigation report, that is its identification as the relevant company, was not an issue because it was already known to the joining party and indeed to any other person or entity from the information tabled in Parliament.

14. On the question of whether the applicant or his company would be unreasonably affected by the disclosure of the documents, the respondent submitted that adverse interference could only occur if the material obtained was misused. Any surmise that the joining party or others only sought the information because of an intention to misuse the information could be not taken into account in the light of s 11(2). The Tribunal was not at liberty to surmise as to the reasons of either the joining party or any party who might seek access to the information.

15. The respondent also made submissions concerning three of the types of deletions made by the decision maker. It said that there seemed to be a basis for that in those three instances. The first was the reference to dates other than the month and year which appeared in the report to Parliament under the AMLI Act. The second was the name of the vessels involved, which did not appear in the report to Parliament. The third was the identification of the particular destination port. The respondent argued that if such information appeared in the document in question, there was an arguable basis for considering that the business of the applicant would be unreasonably affected by disclosure.

16. In reply the applicant stressed that all the information in the report was capable of being used commercially against his company, whether or not it had been previously disclosed to Parliament in the reports made under the AMLI Act. Further that the opinions expressed in the investigation report were opinions reached by the investigators without any opportunity to his company to have made submissions on a number of matters in respect of which opinions have been expressed in the report.

17. In its submission the joining party drew attention to what it considered were requirements of the law to be taken into account. These included the enactment of s57AA of the AMLI Act. It submitted that such enactment was evidence of a parliamentary intention supporting transparency in the live meat export industry through disclosure to Parliament.

18.     Additionally the joining party stressed the importance of the decision in Searle Australia Pty Ltd v Public Industry Advocacy Centre (1992) 108 ALR 163. It was submitted that the approach taken in Searle was now to be preferred to that in Re Livestock Transport and Trading Co KFC and Australian Maritime Safety Authority [1991] AATA 340.

19.     In Searle the Full Court of the Federal Court (Davies, Wilcox and Einfeld JJ) stated at 125:

“However, the word “unreasonably” should be given its ordinary meaning. Section 43(1)(c)(i) poses the issue whether disclosure of the information would unreasonably affect a person adversely. The issue is not whether “the effect is of substance rather than incidental or trivial”, as stated by the Tribunal in par.67.

If it would 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”.              

20. Turning to s 43(1) (c) of the FOI Act, this is not a case where the applicant contends that the information concerns a person, whether himself or another, in respect of the company. Rather it is the second limb of the opening words of the paragraph upon which the applicant relies, namely that the information concerns the business, commercial or financial affairs of his company. The information is that contained in the document, which has, in the AMLI report to Parliament, been identified as an investigation report. It is not information of the type excepted by the paragraph in parentheses appearing in it.

21.     The relevant circumstances include the extent to which information concerning the investigation is already in the public arena as a consequence of the report to Parliament under the AMLI report.  The circumstances disclosed by that report are:

·the applicant’s company exported live-stock in August 2005 from Fremantle to Port Sultan, Qaboos, Kuwait and Bahrain

·discharge occurred in September 2005

·cattle numbers loaded were 2 175, with no mortalities

·sheep numbers loaded were 59 094 with the loss of 1 569, being a loss percentage of 2.66%.

In relation to these voyages a note was appended in the report to Parliament in which it was stated:

·A full investigation was conducted by AQIS.

·Subsequent voyages to the Middle East are required to be accompanied by an AQIS Accredited Veterinarian.

·An audit was undertaken to ensure that the exporter’s procedures and activities comply with the Australian Standards for the Export of Live-stock.    

22. Given the extent of disclosure to the public through Parliament as a consequence of the filing of the AMLI report, I cannot see any proper basis upon which to conclude that the release of the investigation report to the extent it may refer to the matters disclosed to Parliament would unreasonably affect the business, commercial or financial affairs of the applicant’s company. Release of facts already in the public arena could not be found to be causative of any affectation save if it again gave rise to adverse affectation as a consequence of drawing attention to the facts to which it refers. When those facts are already in the public arena any such affectation would not be unreasonable affectation. It cannot therefore be concluded that the applicant’s submission that the reports should be found to be entirely exempt has any correct foundation for the application of s 43(1) (c) (i).

23.      More difficult is the determination of the likely effect of disclosure of findings of the investigator in relation to which the applicant’s company has not had any opportunity to make a submission and with which it may not agree.  For example, any finding by the investigator of the likely cause of the mortality rates of each voyage may not be agreed to by the applicant’s company.  However, as was submitted at the hearing, so far as that may be the case, it could be adverse to the supervisory agency rather than to the applicant’s company.

24.     I am influenced by the acceptance by the respondent that in the three instances previously referred to, there is a presence of arguable unreasonableness in affectation of the business, commercial or financial affairs of the company by release.  Having examined the document in which the decision maker has made deletions, I am satisfied that the deletions made fall within the three categories referred to by the respondent.

25. So far as the applicant has relied upon submissions concerning the motives which the joining party or any applicant for access may have for seeking access, including motives to misuse the information adversely to the business, commercial or financial affairs of the company, I accept that in view of s 11(2) of the FOI Act this Tribunal, standing in the place of the agency, cannot form a belief based on such submissions as to what the joining party’s reasons are for seeking access so as to affect the person’s right of access. Further in any event, apart from the submission of the applicant there is no evidence upon which the Tribunal could proceed to a finding of intended improper use.

26. There is no evidence upon which to find that there is any basis upon which to find an entitlement to exemption by application of s 43(1)(c)(ii).

27.     I therefore consider that the applicant has not established that disclosure of the document in the form proposed by the decision maker would unreasonably affect the company adversely in respect of its lawful business, commercial or financial affairs.

28.     Accordingly the application should be dismissed.                 

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Hon Robert Nicholson

Signed: ..(sgd) T Freeman.........
  Associate

Date/s of Hearing  24 October 2008
Date of Decision  26 November 2008
Applicant Representative         Self
Solicitor for the Respondent     Peter Ward

Blake Dawson Waldron
           Joined Party Representative    Dr Malcolm Caulfield
  Animals Australia Inc