Druett v Director General, Department of Community Services

[2004] NSWADT 181

CITATION:	Druett v Director General, Department of Community Services [2004] NSWADT 181
DIVISION:	General Division
PARTIES:	APPLICANT Garry Keith Druett RESPONDENT Director General, Department of Community Services
FILE NUMBER:	033309
HEARING DATES:	18/03/2004
SUBMISSIONS CLOSED:	03/18/2004
DATE OF DECISION:	08/24/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - law enforcement & public safety - access to documents - secrecy provisions - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - secrecy provisions
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Freedom of Information Act 1989
CASES CITED:	Bissett v Director General, NSW Department of Gaming and Racing [2004] NSWADT 160 BY v Director-General, Attorney General’s Department [2002] NSWADT 79 Cerminara v Commissioner of Police [2001] NSWADT 95 Chapman v Commissioner of Police [2004] NSWADT 35 Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062 Kennedy v Commissioner of Police [2001] NSWADT 39 McMahon v Director-General, Department of Fair Trading [2003] 63 Rittau v Commissioner of Police [2000] NSWADT 186
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	1. The decision of the Director General is affirmed in respect of document no. 204, 226, 229 and 271 listed on Schedule A and all the documents listed on Schedule B; 2. Within 14 days of the publication of this decision, the applicant to advise the respondent agency if he wishes to pursue his application in respect of document no. 203, 220, 222 and 253 listed on Schedule A; 3. Within 7 days after receipt of the applicant’s advice (if any) as referred to above, the respondent agency to provide the Tribunal, on a confidential basis, a copy of Document No. 203, 220, 222 and 253 in its original form and a copy of document no 62 in its deleted form.

BACKGROUND

1 This is an application by Mr Druett seeking review of a determination made by delegates of the Director-General, Department of Community Services (“the respondent agency”) in respect of his application for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”).

2 Mr Druett had made an application to the respondent agency on 10 December 2001. In his application Mr Druett requested access to:

“Information/allegations re: Children at Risk, I request information prior to 1998 that the Department has on me, I applied for this previously but was given records after 1998 which was of no use in Court as were aware of DOCS then”

3 On 26 July 2002, a delegate of the Director-General of the respondent agency determined Mr Druett’s FOI application. In that determination the delegate stated that most of the documents, which had been identified as coming within Mr Druett’s FOI application, had been released to him in full. However, there were also documents identified as coming within his FOI application for which the delegate refused access, either in part or as a whole. In her determination, the delegate stated the following:

“Documents refused include reports made to the Department of Community Services that a child or young person is at risk of harm. As stated in Section 29(5) of the Children and Young Person’s (Care and Protection) Act , 1998 such reports are exempt under the Freedom of Information Act 1989 (“the FOI Act”), and are a considered exempt under the provisions of Schedule 1, Part 3 Clause 12(1) that refers to secrecy provisions.

I have also refused to release to you some information that may identify the person who has made a child at risk report. Under Section 29(1)(f) of the Children and Young Person’s (Care and Protection) Act, 1988 the identity of a person who makes a report is protected. When the initial contact is made with a person who reports a child or young person at risk of harm, they are advised by the Department that their identity and the information they provide, will be kept in confidence. I consider that such information is exempt under the provisions of the FOI Act 1989 Schedule 1, Clause 4(1)(b) (Law and Order); Clause 13 (Confidentiality) and Clause 12(1) (Secrecy Provisions)”.

4 Attached to the delegate’s determination were three Schedules. Schedule A listed 9 documents to which Mr Druett had been granted access with deletions of exempt material. Schedule B listed 18 documents for which access had been refused. The final Schedule was a list of documents held by the respondent agency in relation to Mr Druett’s children, which did not come within Mr Druett’s FOI application.

5 On 16 July 2003 Mr Druett made an application for an internal review of the delegate’s determination. It would appear that there was some misunderstanding between Mr Druett and the respondent agency as to whether he had in fact made an internal review application earlier. In any event, the respondent agency agreed to conduct an internal review, notwithstanding the fact that the application was well out of time.

6 On 24 October 2003 another delegate of the Director-General of the Agency determined the internal review. That determination was to affirm the original decision.

7 The Tribunal has jurisdiction to hear and determine this matter by virtue of s.53(1) and (3)(a)(i) of the FOI Act 1989, and s.38 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

HEARING

8 When this matter was heard, on 18 March 2004, on the application of Ms Allars, who appeared on behalf of the Director-General of the respondent agency and the Premier, the Tribunal joined the Premier (“the Administering Agency”) as a party to the proceedings pursuant to s.57(6) of the FOI Act 1989. Mr Druett did not object to this joinder.

9 Ms Allars, on behalf of the respondent agency, tendered into evidence Mr Druett’s initial FOI Application, the initial determination, Mr Druett’s application for internal review and the internal review determination. In addition to these documents, Ms Allars tendered into evidence a statement, affirmed, on 18 February 2004, by Eija Karen Roti, Director Child Protection (Policy and Review) Officer, within the respondent agency. In her statement Ms Roti describes the core functions of the respondent agency, together with the fact that the agency receives over 100,000 reports a year that children may be at risk of harm. Some of these reports are given voluntarily, and in other cases they are provided as a result of mandatory reporting requirements under the Children and Young Person’s (Care and Protection) Act 1998. She states that vital to the respondent agency’s ability to discharge its responsibility is the supply of information from persons about children at risk. This information needs to be provided voluntarily and in an uninhibited fashion. She stated that persons will only do this if they can be assured that their identity or details will not be disclosed. She states that this equally applies to persons who have a statutory duty to make a report of children at risk.

10 Ms Roti states that safety is a critical issue for people making reports as information concerning child welfare is of its nature very sensitive as it frequently concerns the shortcomings or alleged shortcomings of parents in caring for their children. If it became known that the respondent agency disclosed identifying information about reports in response to an FOI request, Ms Roti believes that sources of such information would dry up, and that this would have a substantial adverse affect upon the ability of the respondent agency to perform its statutory functions.

11 Annexed to Ms Roti’s statement was a copy of a certificate, pursuant to s.29(1A) of the Children and Young Person’s (Care and Protection) Act 1998, dated 12 February 2004 and signed by Rodrick Best, a delegate of the Director General. That certificate certifies that the documents identified in the schedule to the certificate are reports coming within s.29. That list of documents is the same as the list of documents in Schedule B to the respondent agency’s determination of Mr Druett’s FOI application.

12 Ms Allars also tendered into evidence an affidavit by Donna Rygate, Executive Director with the respondent agency, sworn on 29 January 2004. Miss Rygate was the Internal Reviewing Officer of the determination that had been made in respect of Mr Druett’s FOI application. In her affidavit Ms Rygate gives evidence about the processes relating to the internal review as well as the original determination.

13 Ms Roti and Ms Rygate were both made available for cross-examination by Mr Druett. In response to questions asked of her, Ms Roti stated that it was the accepted practice that she and her colleagues discussed with parents the contents of reports that had been made about the parent’s care of their children, but they never disclosed the name or identity of the person who made the report. She also acknowledged that she and her colleagues sometimes receive nuisance and vexatious reports, but their role was to investigate all allegations.

14 The respondent agency has provided the Tribunal with a copy of the documents that were listed on Schedule A to the original determination of the respondent agency. However, with some exceptions the copies provided were copies of the documents with the exempt material deleted. It was Ms Allars’ submission, on behalf of the respondent agency, that s.29 of the Children and Young Person’s (Care and Protection) Act 1998 prohibited the respondent agency from providing the Tribunal with a copy of the documents in their original form. This is dealt with more fully below.

RELEVANT LEGISLSATION

(a) Freedom of Information Act

15 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (ss. 16 & 17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act).

16 Section 25(1)(a) of the FOI Act provides that an agency may refuse access to the document where the document is an “exempt document”. The term “exempt document” is defined in s.6 of the FOI Act to mean the following:

“ exempt document means :

(a) a document referred to in any one or more of the provisions of Schedule 1.”

17 As mentioned above, in this case the exemptions relied on are those contained in Clauses 4, 12(1) and 13 of Schedule 1 of the FOI Act. These exemptions, so far as they are relevant, provide as follows:

“4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected;

...

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or

...

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including revenue law), or..”

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.

13 Documents containing confidential material

A document is an exempt document if it contains matter the disclosure of which:

…

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.”

18 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicable to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.

19 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.

20 Section 61 of the FOI Act provides that in proceedings concerning a determination made by an agency or Minister under the FOI Act the burden of establishing that the determination is justified lies on the agency or the Minister.

Restricted Documents

21 In this application the respondent agency claims that the documents in Schedule B to the delegate’s determination and the deletions to some of the documents in Schedule A are not only exempt documents, but also restricted documents.

22 There are three categories of exempt documents, which are also restricted documents. These are cabinet documents (see cl.1 of Schedule 1 of the FOI Act), Executive Council documents (see cl.2 of Schedule 1 of the FOI Act), and documents concerning law enforcement and public safety (see cl.4 of Schedule 1 of the FOI Act). In this case, the basis on which the respondent agency claims that the documents are restricted documents is on the basis that they are exempt documents under the law enforcement and public safety exemption (i.e. cl.4 of Schedule 1 of the FOI Act).

23 There are 5 provisions in the FOI Act that deal with restricted documents: s.57, s.58A, s.58B, s.58C and s.59. Section 59 permits the Minister to issue a certificate stating that a particular document for which the FOI applicant has sought access is a restricted document. Where such a certificate has been issued, an agency is required to refuse access to that document: see s.25(3) FOI Act. When issuing a certificate under s.59(1A), the Minister is required to set out the reasons for his/her decision and the findings of any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based. With one exception, such a certificate is deemed to be conclusive evidence that the document is a restricted document: see s.59(1). The exception is where an FOI applicant seeks review of the Minister’s claim in the certificate that the document is a restricted document.

24 Accordingly, where an application for external review is made to the Tribunal and a Ministerial certificate has been issued under s. 59 of the FOI Act in respect of the document for which access has been sought, the Tribunal cannot go behind that certificate and it is required to affirm the decision of the agency to refuse the FOI applicant access to the document.

25 In this application, a Ministerial certificate has not been issued under s.59. This means that the provisions contained in s.58A, s.58B and s.58C are not applicable. This leave s.57, which provides as follows:

“ 57 Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public,

(b) the review applicant,

(c) if in the opinion of the tribunal it is necessary to do so to prevent the disclosure of any exempt matter, the review applicant’s representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purpose of any proceedings under this section, the Minister administering this Act is a party to the proceedings”.

26 The Children and Young Person’s (Care and Protection) Act 1998 (“CYP(CP) Act”), which is administered by the respondent agency, makes provision for the care and protection of children and young persons who are at risk. Section 29 of that Act relates to reports made to the Director-General of the respondent agency or any other relevant person concerning the care and protection of child or young person. That section, so far as is relevant, provides as follows:

“ 29 Protection of persons who make reports

(1) If, in relation to a child or young person or a class of children or young person, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person, or the class of children or young persons:

(a) ...

(d) the report, or evidence of its contents, is not admissible in any proceedings (other than care proceedings in the Children’s Court, or any appeal arising from those care proceedings), and

(e) a person cannot be compelled in any proceedings to produce their report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person, except with:

(i) the consent of the person who made the report, or

(ii) the leave of the court or other body before which proceedings relating to the report was conducted,

and, unless the consent or leave is granted, a party or witness in any such proceedings must not be asked and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

(1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

(2) A court or other body cannot grant leave under sub-section (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

(3) ...

(4) Sub-section (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent proper investigation of the report.

(5) A report to which this section applies is taken to be an exempt document for the purposes of the Freedom of Information Act 1989.

(6) In this section:

“court” includes a court exercising Federal jurisdiction

“report” includes a report under sections 24, 25, 27 and 122

27 So far as is relevant s.40 of the ADT Act provides as follows:

40(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provisions of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) …

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal

28 S.40 is contained within Chapter 3 of the ADT Act. This Chapter relates to the jurisdiction of the Tribunal. Section 63 of the ADT Act is contained in Chapter 5 of the Act and sets out the powers of the Tribunal in determining an application for a review of a reviewable decision. So far as is relevant to this application s.63(1) provides that the Tribunal “is to decide what the correct and preferable decision” is having regard to the relevant facts and applicable law.

SUBMISSIONS

29 Ms Allars, who appeared on behalf of the respondent agency and the Administering Agency, provided the Tribunal with detailed written submissions. In those submissions she contended as follows:

(a) The respondent agency’s determination related to restricted documents and as they were not the subject of a Ministerial certificate, s.57 of the FOI Act applied. This was a procedural provision requiring the Tribunal to determine Mr Druett’s application pursuant to that section and not as a general merits review as provided for in s.63 of the ADT Act. In this regard, Ms Allars argued that the Tribunal should reconsider the decision of the President in BY v Director-General, Attorney General’s Department [2002] NSWADT 79. In effect, it was argued that s.57 of the FOI Act was a contrary provision to s.63 of the ADT Act and by virtue of s.40 of the ADT Act, the provision of the FOI Act prevailed.

(b) S.29 of the CYP(CP) Act prohibited the respondent agency from providing the Tribunal with a copy of the relevant documents.

(c) The certificate issued by Mr Best, on 18 February 2004, pursuant to s.29(1A) of the CYP(CP) Act, established that the documents listed in the schedule to the certificate were reports to which s.29 applied and were exempt by reason of s.29(5) of that Act. That is, there was no contrary evidence to that which was stated in the certificate and on this basis the Tribunal was not to look behind the certificate and was required to affirm the determination of the respondent agency in respect of the documents in Schedule B of the respondent agency’s determination.

30 In his submissions, Mr Druett alleged that the certificates issued by Mr Best under s.29(1) of the CYP(CP) Act was not competent, as the documents predated the coming into effect of that Act. He also submitted that as information was provided and accepted by the Children’s Court, he should be given a copy of the material. It is Mr Druett’s view that he has a right to know why his children were taken away and the withholding of the material operates as an injustice to him. Mr Druett had filed some material in support of his position.

REASONS AND DECISION

31 I have considered all the material that has been put before the Tribunal, together with the submissions made by the respondent agency, the Administering Minister and Mr Druett. I will firstly deal with the two procedural issues raised by the respondent agency and the Administering Minister, namely whether s.57 of the FOI Act is a contrary provision to s.63 of the ADT Act and whether s.29 of the CYP(CP) Act prohibits the respondent agency from providing the Tribunal with a copy of the relevant documents. I will then deal with the substance of the application.

(a) Procedure - s.57 FOI Act

32 As mentioned above, the issue of whether s.57 of the FOI Act is a contrary provision to s.63 of the ADT Act was considered in some detail in BY v Director-General, Attorney General’s Department [2002] NSWADT 79. In that decision, the President reconsidered the decisions of Rittau v Commissioner of Police [2000] NSWADT 186, Kennedy v Commissioner of Police [2001] NSWADT 39 and Cerminara v Commissioner of Police [2001] NSWADT 95. These decision had held, inter alia, that an application under s.57(1) of the FOI Act did not oust the ordinary jurisdiction of the Tribunal to undertake a merits review under s.63 of the ADT Act.

33 In BY at [21 to 24] the President considered the threshold question of whether the Tribunal should revisit prior considered rulings and at [22 & 23] he stated:

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister’s submissions have been rejected, there was no appeal; but that may have been, as counsel for the administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, …

34 The decision in BY has been followed in Chapman v Commissioner of Police [2004] NSWADT 35 at [79] and Bissett v Director General, NSW Department of Gaming and Racing [2004] NSWADT 160 at [57 to 60]. The Administering Minister was not a party to either of these decisions.

35 While the Administering Minister has presented a detailed argument, in my opinion, for the reasons stated below, the argument is not of sufficient significance for me to reconsider the decision in BY in so far as it relates to the question of whether the Tribunal’s jurisdiction remains unaffected after it finds that there are reasonable grounds for a claim that a document is a restricted document. In any event, I am of the opinion that the argument does not support a conclusion that s.57 of the FOI Act is a contrary provision to s.63 of the ADT Act.

36 The finding in BY was to the following effect:

If the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.

37 After considering the legislative history of s.57 of the FOI Act the President stated the following:

“61 ... My conclusion is that s.57 does lay down a special rule in relation to all restricted documents claimed, save for those involving a Ministerial certificate which must first be dealt with by the Supreme Court. I have reached this conclusion having regard to other elements of the scheme of the FOI Act.

62 ...

63 The interpretation adopted in Kennedy and the earlier cases gives rise to a state of affairs where s.57 operates only as a way of bringing on a ‘strikeout’ application. The review applicant could make such a submissions (no prima facie case exists/no reasonable grounds are shown) in the ordinary course of a review hearing. As that is the case, there is no useful role accorded to s.57. Section 57 would in effect be a redundant provision, except for the rare case when a review applicant makes a special s.57(1) application.

64 It is more likely in my view that Parliament would have intended that, in all cases where the claim is made, documents said to be restricted documents be handled carefully by reference to the procedural rules set down in s.57.

65 One benefit of this approach to the construction of s.57 is that it ensures that the Administering Minister has the status of a party in any proceedings where there is a restricted document claim, and may make submissions. Such a position makes sense where the restricted document in issue is a Cabinet document or an Executive Council document.

66 It is less obvious that this outcome makes sense where law enforcement document claims are made. Such claims, in contrast to Cabinet documents and Executive Council documents claims, are commonplace in FOI litigation from a wide range of agencies including local government agencies”.

38 He then went on to consider whether s.57 of the FOI Act constituted a ‘contrary provision’ to the ‘ordinary jurisdiction’ of the Tribunal to determine what was the correct and preferable decision in the circumstances. In this regard the President stated the following:

“70 It is not clear that s.57 constitutes a ‘single contrary provision’. One would expect that a provision ousting or limiting the jurisdiction of the Tribunal would be expressed in clear terms, not found by implication. The FOI Act is an Act designed to promote openness in government and enable citizens to understand better the basis for government actions and decisions. It is often described as promoting the democratic objective. The substantial system for review of negative agency determinations reflects the concern that such determinations be sound. There are mechanisms for internal review, review by the Ombudsman and review by the Tribunal. In the case of review by the Ombudsman, there is an express limitation on the power of that office to review ministerial certificate cases. There is no limitation on its power of review in respect of non-Ministerial certificate restricted document cases. These are all reasons for expecting that had the Parliament intended to deprive a Tribunal of its ordinary merits review powers in these cases, it would have said so expressly.

71 ...

72 As I see it, the reason the external review body in the Ministerial (all ‘single conclusive’) certificate cases does not proceed any further is that s.59 (in this jurisdiction, and the parallel provisions in the Commonwealth sphere) places an evidentiary bar on it proceeding any further. It is noteworthy in my view that s.59 does not refer to the jurisdiction of the Tribunal

73 ...

74 In the instance of cases like the present – where a restricted document exemption is invoked but no conclusive certificate has been issued (presumably because the Administering Minister was not consulted, or, if consulted, did not think it was a situation of such public or political importance that a certificate should issue) – the Parliament could have, but did not, make any provision as to the evidentiary effect of such a claim.

75 Section 59 does not impose any evidentiary bar on the Tribunal in cases where no certificate has been issued. There is no indirect jurisdictional limitation of this kind. Nor is there a direct jurisdictional limitation in that provision or elsewhere in the Act.

76 Accordingly, I consider that s.57 does not operate as a jurisdictional bar in the way suggested by the Administering Minister. In this important respect I agree with the earlier Tribunal decisions, though my reasons are different”.

39 The Administering Minister argued that the Tribunal erred in its reasoning to the extent that it treated s.57 of the FOI Act and s.63 of the ADT Act as being provisions that conferred jurisdiction on the Tribunal. It was contended that on a proper construction of both Acts they were procedural provisions and not jurisdiction conferring provisions. The jurisdiction conferring provisions were s.53 of the FOI Act and s.38 of the ADT Act. It was then argued that as procedural provisions, s57 of the FOI Act was contrary to that which was provided in s.63 of the ADT Act and that by reason of s.40(1) of the ADT Act, s.57 of the FOI Act prevailed and s.63 of the ADT Act had no application to a review of a decision that a document was a restricted document.

40 Furthermore, it was argued that the Tribunal did not have before it the benefit of the decision of Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062 (16 November 2000) and the full legislative history of the FOI Act (i.e. the amendments to s. 57 of the FOI Act and the insertion of ss. 58A, B, and C of the Act: see Freedom of Information (Amendment) Act 1992 (“the 1992 Amendments”) and Administrative Decisions Legislation (Amendment) Act 1997 (“the 1997 Amendments”).

41 Dunford J in Cheung, stated the following at [16]:

“Whilst there may be good reasons of having a provision such as s.40 in Chapter 3 relating to the jurisdiction of the Tribunal, it might seem surprising that it was intended to override procedural provisions relating to the Tribunal such as s.42 and 44, but it seems to me the meaning of the words is clear. Section 40(1) refers to the provisions of the Act, not to the provisions of Chapter 3, and indeed s.40(2) makes special provision in relation to Chapter 3, thereby suggesting that the other provisions of s.40 are to apply to all the chapters of the Act ...”.

42 In that case, Dunford J was dealing with conflicting time limit provisions in respect of the time within which an application for review of a reviewable decision could be made. The relevant provisions were s.42 and 44 of Chapter 4 of the ADT Act, and s.329(3) of the Local Government Act. On the basis of the abovementioned quoted reasoning, Dunford J found that by implication the time limit provisions in s.329(3) of the Local Government Act were ‘contrary’ to those contained in s.42 and s.44 of the ADT Act and that by reason of s.40(1) of the ADT Act, the time limit provisions in s.329(3) prevailed. That is, both provisions were regarded as procedural provisions and s.40(1) of the ADT Act was interpreted as a provision for overriding procedural provisions in the ADT Act, even though the subsection was in that Part of the ADT Act which dealt with the jurisdiction of the Tribunal.

43 The reasoning of Cheung has been followed in other decisions of the Tribunal concerning time limits, including the time limit under s.54 of the FOI Act (see McMahon v Director-General, Department of Fair Trading [2003] 63).

44 In my opinion, the decision in Cheung does not cast doubt on the conclusions reached in BY. The Tribunal used the term ‘jurisdiction’ in the broad sense yet recognised that it was a procedural provision: see at [64]. The real issue in BY was whether s.57 of the FOI Act was contrary to s.63 of the ADT Act. The provisions that were considered in Cheung were clearly contrary to each other. However, the same cannot be said of s.57 of the FOI Act and s.63 of the ADT Act. While they provide different procedures it is possible for both to be applied. As pointed out by the President, the question of whether provisions are contrary to each other is ultimately a question of statutory construction: see at [53].

45 In respect of the legislative history of s.57 of the FOI Act, in BY, the President gave a comprehensive outline of the most significant amendments concerning restricted documents, these being the 1992 Amendments: at [43 to 51]. As pointed out by the President the intention of the 1992 Amendment was to constrain the use of Ministerial certificates. In all other respects appeals to the District Court were to be preserved. Prior to the 1992 Amendments, the District Court dealt with restricted documents that were not the subject of a Ministerial certificate, the same way it dealt with all other appeals, including those where the agency had refused access to a document on the basis it was an exempt document. This has been the practice, notwithstanding the 1992 Amendments, particularly since the 1997 Amendments, when the Tribunal was given jurisdiction for external review. If the Administering Agency’s construction were to be adopted, the external review of a restricted document, other than a restricted document the subject of a Ministerial certificate, would become more limited than that which applied when the Act was first enacted. Had Parliament intended such a construction it would have provided for it expressly.

46 Accordingly, I will follow the decision in BY.

(b) S.29 CYP (CP) Act procedure

47 As mentioned above, it is the contention of the respondent agency that s.29(1)(d) to (f) of the CYP(CP) Act prohibits the agency from providing the Tribunal with a full copy of documents listed on Schedule A, even on a confidential basis. If the respondent agency is correct then this would apply to any document that the agency claims to be a report under that section.

48 In my opinion, such a construction cannot be placed on these paragraphs.

49 Firstly, s.29(1)(d) of the CYP(CP) Act only applies where the purpose of the production of the report is so that the existence of the report or its contents can be put into evidence in legal proceedings. This is not the purpose for which the reports would be provided to the Tribunal. It is well established that the purpose of providing the Tribunal, on a confidential basis, with a copy of the exempt material is so that the Tribunal can satisfy itself that the exemption claimed by the respondent agency does in fact apply to the report and that the determination of the respondent agency to refuse access to the report is the correct and preferred decision: see s.63 ADT Act. Furthermore, the provision of the report to the Tribunal on a confidential basis does not operate to disclose the contents of the report as the Tribunal is prohibited from disclosing its contents under s.55(a) of the FOI Act and s.55(6) of the Act clearly envisages such a procedure being adopted.

50 Secondly, s.29(1)(e) of the CYP(CP) Act only applies where, by operation of law, the respondent agency is being compelled to produce the report or a copy thereof in any proceedings. That compulsion could include a production of the report pursuant to a subpoena or a notice to produce. The purpose of such procedures is to obtain documents for the purpose of evidence. Again that does not apply to these proceedings, where there is no legal compulsion on the respondent agency to produce the reports for the purpose of evidence.

51 Thirdly, providing the Tribunal with a copy of the report on a confidential basis, is not a disclosure of the identity of the author of the report pursuant to s.29(1)(f) of the CYP(CP) Act. That paragraph must be read in conjunction with the preceding paragraphs, which clearly envisage a court or other body being provided with a copy of the full report when considering an application for leave to disclose the identity of the author of the report. In my opinion the provision of the report to the Tribunal on a confidential basis is not a ‘disclosure’ within the relevant sense and for the same reasons set out in paragraph 49 above the Tribunal is provided with a copy of the report only so that it can satisfy itself that the document for which an exemption is claimed is in fact exempt.

52 Finally, if the respondent agency was correct in its interpretation of s.29 of the CYP(CP) Act there would have been no need for Parliament to include s.29(5) of the CYP(CP) Act, which provides that a report coming within the section is exempt for the purpose of the FOI Act.

53 Accordingly, in my opinion, s.29 of the CYP(CP) Act does not prohibit the respondent agency from providing the Tribunal, on a confidential basis, with a copy of the reports that are not the subject of a certificate under s.29(1A) of the CYP(CP) Act. These reports are those identified on Schedule A of the respondent agency.

(c) The substantive application

54 I have had regard to all the material that is before the Tribunal and on the basis of the evidence of Ms Roti I am satisfied that in respect of the documents listed on Schedule A and Schedule B, to the respondent agency’s internal review determination that there are reasonable grounds for the respondent agency’s claim that these documents are restricted documents in that they are exempt under cl.4(1)(b) of Schedule 1 of the FOI Act. It is not disputed that the role of the respondent agency is to protect children at risk and in doing so it relies heavily on reports received from members of the public and specified professionals. These reports are given in confidence on the basis that the respondent agency will not disclose the identity of the maker of the report. Mr Druett’s FOI application specifically sought reports of this nature and I am satisfied that the respondent agency has reasonable grounds to claim the documents it has identified as coming within Mr Druett’s request are exempt on the basis that disclosure of the document could reasonably be expected to enable the existence or identity of any confidential information, in relation to the enforcement or administration of the law to be ascertained.

55 For the reasons stated above, the next question is whether the respondent agencies determination is the correct and preferred decision having regard to the relevant facts and the applicable law. In this regard it is necessary to deal with the documents listed in each schedule separately. I will firstly deal with the documents listed in Schedule B, as these documents are the subject of a certificate under s.29(1A) of the CYP(CP) Act.

56 Mr Druett has claimed that the certificate is inapplicable as the documents to which the certificate relates were all created prior to the date on which s.29 of the CYP(CP) Act came into force. While the CYP(CP) Act was assented to on 14 December 1998, the various Chapters and Parts of the Act have come into force at various times after this date. In this case, s.29, which is in Chapter 3 Part 2, commenced operation on 8 December 2000. Hence Mr Druett is correct in stating that the documents listed in Schedule B were all created prior thereto. However, in my opinion, on a proper construction of s.29, the section applies to ‘reports’ that were made prior to the section coming into force as well as those made after this date. The term ‘report’ is defined in s.29(6) of the CYP(CP) Act to include reports under specific provisions of that Act. That is, it is an inclusive definition which means that any report coming within in the terms of the introductory words of s.29(1), even if it was created prior to that section coming into operation, is covered by that section. The definition makes it clear that the term ‘report’ includes specific reports made under the Act (e.g. mandatory reports under s.27).

57 Accordingly, in this application the certificate that has been issued in respect of the documents listed in Schedule B is effective and on the basis that the Tribunal has not received any evidence to the contrary, the certificate is proof that the documents referred to in that Schedule are reports coming within that section. By reason of s.29(5) of the CYP(CP) Act it follows that the reports are exempt for the purpose of the FOI Act, enabling the respondent agency to refuse Mr Druett access to these documents.

58 On the basis of the above findings, I am of the opinion that the Director General’s decision to refuse Mr Druett access to the documents listed in Schedule B is the correct and preferred decision.

59 In respect of the Documents listed in Schedule A, Mr Druett has been given access to these documents subject to deletions. These deletions being matters which the respondent agency contends are exempt on the grounds of cl. 4(1)(b) (enable the disclosure of the existence or identity of a sources of information), or cl. 12(1) (document is subject to a secrecy provision, i.e. s.29 CYP(CP) Act), or cl. 13 (documents contain confidential material) of Schedule 1 of the FOI Act. In some cases, the only exemption that is claimed is the cl. 13 exemption.

60 There are 9 documents listed on Schedule B. The Tribunal has a copy of each of these documents and in the case of Document No 204, 226, 229 and 271 the Tribunal has a copy of the document in its deleted and non deleted form. I will firstly deal with the respondent agency’s determination in respect of these documents. The deletions in these documents are all claimed to be exempt under cl. 13 of Schedule 1 of the FOI Act. It is not necessary for me to consider both aspects of this exemption as I am satisfied that the deleted material is exempt under cl.13(b) of Schedule 1 of the FOI Act. Having regard to the content of the documents and the circumstances in which they were created I find that they were obtained in confidence and a disclosure thereof could reasonably be expected to prejudice future supply of such information to the respondent agency. This leaves the question of where the public interest lies. In this case while there is merit in Mr Druett’s argument that he has a right to know the nature of reports made about his children and which related to his relationship with the children, the exempt material does not come within this category. Mr Druett has not otherwise made any submissions that would alter the accepted public interest in retaining the confidentiality of the type of information that has been deleted.

61 The Tribunal has been provided with a copy of Document No. 203, 220, 222 and 253 in their deleted form. However, it does not have a copy of the document in its original form. This leaves document No 62, a copy of which the Tribunal has in an undeleted form. Accordingly, it is not possible for the Tribunal to make a determination in respect of these documents. In light of my decision in respect of the remaining documents, I have decided to publish my reasons in respect of the remaining documents so that Mr Druett can consider whether he wish to pursue his application in respect of the deletions in these documents. In the event he does wish to pursue his application in regard to these documents, the respondent agency is to provide the Tribunal, on a confidential basis, with a copy of Document No. 203, 220, 222 and 253 in their original form and a copy of Document No 62 in its deleted form. The Tribunal will then make a determination in respect of these documents on the papers.

62 For the reasons set out above, the Tribunal makes the following orders:

a) The decision of the Director General is affirmed in respect of document no. 204, 226, 229 and 271 listed on Schedule A and all the documents listed on Schedule B.

b) Within 14 days of the publication of this decision, the applicant to advise, the respondent agency if he wishes to pursue his application in respect of document no. 203, 220, 222 and 253 listed on Schedule A.

c) Within 7 days after receipt of the applicant’s advice (if any) as referred to above, the respondent agency to provide the Tribunal, on a confidential basis, a copy of Document No. 203, 220, 222 and 253 in its original form and a copy of document no 62 in its deleted form.