Einfeld and Human Rights and Equal Opportunity Commission
[2007] AATA 1507
•5 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1507
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0001, 0003, 0282
GENERAL ADMINISTRATIVE DIVISION )
ReAnne EINFELD and Marcus EINFELD
Applicants
AndHuman Rights & Equal Opportunity Commission
Respondent
DECISION ON JOINDER
TribunalProfessor GD Walker, Deputy President
Date5 July 2007
PlaceSydney
DecisionThe joinder applicants Michael McKinnon and Matthew Moore are to be joined as second and third respondents respectively in the proceedings.
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Professor GD Walker
Deputy President
CATCHWORDS – freedom of information – joinder application – joinder may be refused if the third parties’ interests can be adequately represented by the parties to the application – interests of joinder applicants must be different from those of the current parties to the application – freedom of information requester is a person whose interests are affected – joinder applicants interests in this case are distinct from the current parties to the proceedings – joinder applicants found to be the proper contradictors in this case.
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RELEVANT ACT/S
Freedom of Information Act 1982 (Cth): ss 3, 11, 27A, 41, 59A
Administrative Appeals Tribunal Act 1975: ss 2A, 30(1A), 43(1)(c)(ii)
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CITATIONS
Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited (1994) 121 ALR 373
Allan v Transurban City Link Limited (2001) 208 CLR 167
Re Control Investments Pty Limited and Australian Broadcasting Tribunal (No1) (1980) 3 ALD 74
Re Marine World Victoria Limited and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
Re Sew Eurodrive Pty Limited and Collector of Customs (1994) 35 ALD 790
Re Mitsubishi Motors Australia Limited and Secretary, Department of Transport (585/66 AAT No 2726, (1986) 11 ALN N253)
Re The Australian and Department of Families, Community Services and Indigenous Affairs (2006) 92 ALD 179
General Merchandise and Apparel Goods Pty Limited and Chief Executive Officer of Customs [2007] AATA 1138
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Re New Broadcasting Limited and Australian Broadcasting Tribunal (1987) 12 ALD 1
R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13
Geographical Indications Committee v The Hon Justice O’Connor (2000) 64 ALD 325
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REASONS FOR DECISION
5 July 2007
Professor GD Walker, Deputy President
Facts
1. Seven Network (Operations) Limited (the Seven Network) made a request under the Freedom of Information Act 1982 (Cth) (the FoI Act) through its FoI editor, Mr Michael McKinnon, on 15 August 2006 for documents relating to travel arrangements, claims, reimbursements and expenses of Mr Marcus Einfeld “and any companion” during the period when Justice Einfeld, as he then was, was president of the Human Rights & Equal Opportunity Commission (HREOC).
2. The Sydney Morning Herald (the Herald) made an FoI request through its FoI editor, Mr Matthew Moore, on 24 November 2006 for documents relating to expenses claimed by Mr Einfeld and, paid or refused by HREOC.
3. After seeking submissions from Mr Einfeld and Mrs Anne Einfeld (the appeal applicants) in relation to whether the disclosure of some of the documents would involve an unreasonable disclosure of their personal information, HREOC decided to release some of the documents, uphold exemption claims in relation to some and release some others subject to deletions (Exhibit R1 (M2)).
4. On 22 December 2006, Mr Einfeld applied for review of the decision in relation to HREOC’s decision of 22 November 2006 (file number 2007/0003). Subsequently, an amended application (dated 8 February 2007) was lodged seeking review of the decision referred to above, together with a further decision made on 27 January 2007 in respect of a request by the Herald dated 24 November 2006 (file number 2007/0282).
5. Also on 22 December 2007, Mrs Anne Einfeld applied for review of a HREOC decision made on 22 November 2006 (file number 2007/0001).
6. Mr Michael McKinnon applied to be made a party (presumably a respondent) to the three applications by Mr Einfeld and Mrs Einfeld respectively. Mr McKinnon is FoI editor of the Seven Network and has the responsibility for the conduct of this application on behalf of the Seven Network.
7. Mr Matthew Moore also applied to be made a party (presumably a respondent) to the same applications. Mr Moore is the FoI editor of the Herald and is required by the Herald to handle the application on its behalf.
8. At the hearing, Mr Einfeld and Mrs Einfeld (the appeal applicants) were represented by Mr Mark Mackrell of Norton White Solicitors and the respondent by Ms Christine Fougère, senior lawyer with HREOC.
9. The joinder applications were made pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which provides as follows:
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30. Parties to proceeding before Tribunal
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(1A)Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
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Submissions of the joinder applicants (Mr McKinnon and Mr Moore)
10. At the joinder hearing, Mr McKinnon presented submissions on behalf of Mr Moore and himself (the joinder applicants). He argued that their interests are affected by the decision because they are persons who have made FoI requests and because they represent media organisations or the Australian media. Those interests would be diminished if they were not able to make submissions or illicit evidence in the substantive proceedings.
11. In relation to the appeal applicants’ submission that allowing joinder would defeat the purpose of their claim for exemption from release of information relating to themselves, Mr McKinnon submitted that the tribunal could deal with the matter without the contents of the documents being disclosed to the joined parties. He had taken part in other hearings relating to FoI requests and in some cases, the tribunal had conducted closed sessions in relation to that part of the case. It was not necessary for the documents to be available for the joined parties to make submissions. They could infer something about the nature of the documents from the schedule provided before the hearing, without seeing the documents themselves.
Submissions for the appeal applicants (Mr Einfeld and Mrs Einfeld)
12. In written and oral submissions, Mr Mackrell argued that merely having requested access to documents pursuant to the FoI Act did not make the joinder applicants persons “whose interests are affected by the decision” within the meaning of s 30(1A) of the AAT Act. Under s 11 of the FoI Act, “every person” is given the right to obtain access to agency documents, and s 3 makes it clear that the object of that Act is to extend as far as possible that right subject only to “exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons” (s 3(1)(b)).
13. In this case, the relevant exemption is contained in s 41(1), which deals with the unreasonable disclosure of personal information. Consequently, the Herald and the Seven Network lacked an interest other than that which attaches to members of the general public, within the meaning of Davies J’s remarks in Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited (1994) 121 ALR 373 at 382.
14. The situation might be different if the documents related in some material way to the affairs of the joinder applicants or their employers, but the reasons of Deputy President Forgie in Re The Australian and Department of Families, Community Services and Indigenous Affairs (2006) 92 ALD 179 (the Cape York case) suggested that they were not. In that case, the tribunal held that the Cape York Land Council had an interest in ensuring that its legitimate claims to legal professional privilege remained protected under s 42 of the FoI Act, but although the council was a body concerned with the interests of persons about whom the document might contain personal information, it did not have an interest in whether any personal information contained in the report should be exempt under s 41.
15. In this case, the interest of the joinder applicants was even more remote. There was nothing to suggest that the documents contained any information concerning the joinder applicants or their employers. Mr Mackrell noted that in Alphapharm, Davies J had said:
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If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage (at p385).
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16. Further, the combined effect of ss 27A(1AA), 27A(1) and 59A of the FoI Act is that if a person had no right to be heard in relation to the original decision, he or she had no interest that would entitle joinder. The Cape York case showed that a mere outsider would not be joined when s 41(1) is at issue if the joinder applicant is not the person whose information is disclosed in the document.
17. The joinder applicants claimed to be representatives of the Australian media and relied on the observations about the special role of the news media in Attorney-General(UK) v Times Newspapers Limited [1974] AC 273, Nationwide News Pty Limited v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Limited v Commonwealth(No2) [1992] 177 CLR 106. But those reasons provided no support for the proposition that the joinder applicants thereby had interests that were affected in the relevant sense. They related to the question of freedom of discussion of matters of public importance, but there are no issues of government policy or public interest in the present proceedings. They turn on specific questions about individual rights to personal privacy in respect of specific documents. The joinder applicants cannot, Mr Mackrell continued,
… point to a particular type of conduct or any failure to observe any particular law, but rather claim a right to participate in these proceedings on the off chance that it might turn up some information about which they can publish a story which, in any event, may or may not be an accurate or fair reporting of the contents of the documents.
18. The tribunal is also required, under s 30(1A) of the AAT Act, to consider discretionary factors such as those outlined in Re Marine World Victoria Limited and Minister for Arts, Heritage and Environment (1986) 10 ALD 262 at 271-272. Allowing joinder would complicate the proceedings and add to their cost, especially if the joinder applicants were to lead evidence. The opportunity for the appeal applicants to make submissions in support of their case would be seriously prejudiced.
19. These were not proceedings where there is no contradictor or where the respondent is not a proper contradictor. HREOC is the appropriate contradictor and has a duty to assist the tribunal. The joinder applicants, as representatives of the media, could not give the required assistance because it would be necessary for them to leave the hearing room when the confidential contents of the documents were placed before the tribunal. The decision under review was purely administrative and in making it, HREOC was not acting judicially, so there was no realistic prospect that the matters would be referred to HREOC for further determination.
20. The problems and cost and complexity could be avoided by giving the joinder applicants a right to lodge written submissions and make an opening statement, without joining them as parties, Mr Mackrell said.
Submissions for the respondent (HREOC)
21. Ms Fougère informed the tribunal that HREOC supported the joinder application in view of its own proper role in these proceedings. As s 43(1)(c)(ii) of the AAT Act gives the tribunal the power to remit the matter to HREOC for reconsideration, it was inappropriate for the respondent to play an active role. That flowed from the principles identified in R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13, Geographical Indications Committee v The Hon Justice O’Connor (2000) 64 ALD 325 and Re New Broadcasting Limited and Australian Broadcasting Tribunal (1987) 12 ALD 1. In Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45, the Full Court of the Federal Court had confirmed the risks that would be presented if HREOC were required to play an active role in such proceedings.
22. The distinction between an administrative decision and a decision arrived at when there was a duty to act judicially was not relevant, Ms Fougère said. The issue was the risk to the perception of impartiality and it was not possible to say in advance that the matters would not be remitted to HREOC.
23. In the respondent’s view, therefore, the appropriate contradictors in the present case are the joinder applicants.
Consideration
24. The substantive issue in these proceedings is whether disclosure of the documents sought would involve the unreasonable disclosure of personal information concerning the appeal applicants within the meaning of s 41(1) of the FoI Act.
25. It was not disputed that the basic principles for determining whether a joinder applicant is a person “whose interests are affected by the decision” are as enunciated by Davies J in Alphapharm, (although that was a case under the Therapeutic Goods Act 1989 (Cth)), and by reference to the subject, scope and purpose of the FoI Act, rather than by applying concepts derived from the common law rules of standing (Allan v Transurban City Link Limited (2001) 208 CLR 167 at 174). It was also common ground that there is no direct authority governing the present case and that the closest is perhaps the Cape York case.
26. The starting-point for the analysis of this problem must be the tribunal’s statutory obligation to pursue the objective of “providing a mechanism of review that is fair, just, economical, informal and quick” (AAT Act s 2A; see Re Control Investments Pty Limited and Australian Broadcasting Tribunal(No1) (1980) 3 ALD 74).
27. A person seeking to be joined must show interests that are different from those of the parties to justify an order for joinder (Marine World at p272). Joinder may be refused if the third parties’ interests could be adequately represented by the parties to the application. The tribunal must take into account the position of the original parties to the application and, in particular, the inevitable increase in cost and time taken by adding parties to the proceedings (Re Sew Eurodrive Pty Limited and Collector of Customs (1994) 35 ALD 790).
28. While a person who has taken the time and trouble to make and pursue an FoI request could in a broad sense have “interests” that might be affected by the decision, I would not have thought, in the absence of contrary authority, that in itself to be sufficient for the purposes of s 30(1A). As Davies J noted in Alphapharm , the adjectives “real”, “genuine” and “direct” have been used to describe the relationship required (at p382).
29. Besides implying an interest other than that which attaches to members of the general public or persons merely holding a belief that a particular type of conduct should be prevented or a particular law observed, those words of emphasis could be read as connoting an interest that is of significant or substantial magnitude, possibly antedating the request in question and existing independently of it. They might not seem apt to include an interest of a rather formal and procedural nature such as that of a person making an FoI request.
30. But after the hearing concluded, Ms Fougère uncovered authority to the contrary. In Re Mitsubishi Motors Australia Limited and Secretary, Department of Transport (585/66 AAT No 2726, (1986) 11 ALN N253), the tribunal, constituted by three members with Fisher J presiding, held that prima facie a requesting party has the necessary interest. That party initiated the FoI request and is the person who seeks access. The decision under review specifically affects the party’s request. That person has an interest in upholding the decision under review and will be prejudiced if the appeal applicant succeeds (at paras 5, 8)..
31. In subsequent written submissions dated 20 June 2007, Mr Mackrell argued that Mitsubishi needs to be read in light of the later Allan and Cape York cases, as well as General Merchandise and Apparel Goods Pty Ltd and Chief Executive Officer of Customs [2007] AATA 1138. The approach adopted by the High Court in Allan required reviewing the FoI Act’s provisions to ascertain if the person’s interests are affected in the circumstances of the case. In this case that question had to be answered in the negative as a requesting party under the FoI Act does not participate in the s 27A process.
32. Mr Mackrell argued that the combined effect of ss 27A and 59A of the FoI Act is that if a party has no right to be heard in relation to the original decision, it has no interest that would entitle it to joinder.
33. But nothing in ss 27A or 59A can be read as limiting the joinder power in that manner. Indeed, s 59A(3), which requires that the person to whom the information relates must be informed of any application to the tribunal for review of a decision to refuse access, implies that someone other than that person may be an applicant in review proceedings before this tribunal. On the basis that the greater includes the lesser, it is reasonable to conclude that a person entitled to be the applicant in substantive review proceedings is not excluded from being joined as a party (cf Mitsubishi at para 9).
34. The principles articulated in Allan and the Cape York case are in no way inconsistent with Mitsubishi’s proposition that an FoI requester is a person whose interest are affected. General Merchandise does no more than hold, consistently with Marine World, that a party should not be joined if its interests are identical to those of another party and it is likely to run substantially the same argument (at paras 31, 36). That is not the case here.
35. Mr McKinnon’s second ground was that he and Mr Moore had interests in the decision arising from their being representatives of the Australian news media. That might perhaps be doubted, as nothing in the evidence shows that they have been elected or delegated by the Australian news media to perform that role. At the hearing, however, Mr McKinnon re-framed the submission in terms of their being representatives of Australian news media organisations for the purposes of the present proceedings, and the evidence shows that they are.
36. Mr Mackrell’s position was that whatever may be the special role of the news media in a democracy, it was relevant to the issue of joinder only if the proceedings involved issues of government policy or public interest. The joinder applicants had not, he submitted, pointed to a particular type of conduct or any failure to observe any particular law.
37. As the HREOC documents in issue are not at this stage before the tribunal, it would be premature to reach any conclusions about what they might or might not contain. The travel expenditure of members of parliament and senior public officials, including judicial officers, has been the subject of media reporting and comment for decades. To conclude at this stage that the proceedings would involve no matters of government policy or public interest would be to prejudge the outcome of the substantive hearing, which will presumably turn on whether the disclosure of the information is “unreasonable” in light of the criteria set out in s 41 of the FoI Act.
38. Mr Mackrell relied on Davies J’s observation in Alphapharm to the effect that a person may not join in proceedings “merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage” (at p385). But as the quoted language shows, his Honour was not describing a situation similar to the present one. The joinder applicants are not seeking a commercial advantage by denying a benefit to the appeal applicants or causing them to suffer a commercial disadvantage.
39. The paragraph preceding the one in which his Honour made that comment makes his Honour’s meaning even clearer:
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In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug on to the market. Such an interest is not relevant to the process which the Act establishes or to any decision made under the Act. Such an interest is indeed in conflict with the interest which the Act promotes (ibid).
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40. The joinder applicants are no doubt in part seeking a commercial advantage on behalf of their employers, but not by endeavouring to inflict a commercial disadvantage on a competitor.
41. Although in view of my conclusion on Mr McKinnon’s first ground it may not be necessary to decide the point, there remains the question whether the joinder applicants’ interest as media organisation representatives is sufficient to bring it within the meaning and intendment of s 30(1A) of the AAT Act. There is no direct authority on that point, and Mr Mackrell submitted that the interest in the present case is even more remote than that which was held insufficient in the Cape York case.
42. But it is not necessarily more remote, it is simply of a different character. Cape York Land Council’s interest was in protecting certain people by preventing the dissemination of information, whereas the joinder applicants are seeking to make information more widely available to the general public. That interest is in a general sense consistent with the FoI Act’s stated object in s 3 and suffices for the purposes of s 30(1A).
43. Mr Mackrell argued that in any event any participation by the joinder applicants should be limited to lodging written submissions and making an opening statement. In the present case, however, that would not give a satisfactory result as the respondent HREOC does not intend to take an active role because of the risk to its impartiality should the matter be remitted to it. It supports the joinder application by Mr McKinnon and Mr Moore, who it regards as the appropriate contradictors.
44. The reasons of the Full Court of the Federal Court in Peacock make it understandable that HREOC would wish to play only a minor role in the hearing of the substantive application, even though FoI might be regarded as falling outside the mainstream of HREOC’s activities and statutory responsibilities. Mr Mackrell argued, however, that HREOC was indeed the proper contradictor, relying on New Broadcasting and Geographical Indications.
45. In New Broadcasting, Davies J acknowledged the operation of Hardiman in cases being heard in the courts, but went on to draw a distinction between proceedings in a court and a proceeding in the AAT. But his Honour added a significant qualification:
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In the exercise of this function, the AAT is assisted if the representative for the decision-maker fulfils the role of adducing evidence, of questioning evidence and of presenting substantive submissions. If the representative for the decision-maker does not do this and there is no other party present to undertake that role, it could become necessary for the AAT itself to take an active role in questioning witnesses and even in adducing evidence. Such a role does not stand well with the AAT’s function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions (at 11, emphasis added).
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46. The Full Court of the Federal Court approved that distinction in Geographical Indications:
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While his Honour encouraged representatives of a decision-maker in future cases to play an active role as a party in cases where the only parties before the tribunal were the applicant for review and the decision-maker, it is plain from his Honour’s observations, read in their entirety, that the situation would be different where there were other parties before the tribunal who it could be expected would adopt the role of contradictor, and who could be expected to add whatever evidence was necessary to the T documents to fully inform the tribunal on relevant matters (at 337).
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47. In the present case, the joinder applicants wish to perform the role of contradictor in relation to the merits of the substantive application. Their interests are different from those of the other parties to the application, a factor which, under Marine World, weighs in favour of allowing joinder (10 ALD at p272). While some procedural inconvenience might be caused if the joinder applicants were to be required to leave the hearing room while confidential evidence was presented, experience with earlier cases does not suggest that such problems are likely to be unmanageable (see Mitsubishi at para 10).
48. The appeal applicants also submitted that impartiality concerns were of no moment because the matter is unlikely to be remitted to HREOC. While remittal may not be the most probable outcome of the hearing, it is one of the remedies available to the tribunal under s 43(1) of the AAT Act and its use could not be ruled out at this stage.
49. The discretionary factor relied on by the appeal applicants is the possibility that allowing joinder would protract the proceedings and increase the costs to the original parties. That is a significant consideration, particularly as the appeal applicants are private citizens and presumably do not have unlimited means.
50. In Marine World (at p273) it was treated as appropriate that the joinder applicants should agree on joint representation at the hearing. Mr McKinnon informed the tribunal that pursuant to an agreement with Mr Moore, he would be conducting their case at the hearing on behalf of both of them.
51. While reserving the right to call evidence, Mr McKinnon predicted that his role would consist only of making submissions and of some cross-examination. Having observed the concise way in which Mr McKinnon presented the joinder application, I accept his assurance that his participation would not add substantially to the length or cost of the proceedings for the original parties as compared with the position if HREOC were to act as contradictor.
52. I therefore direct that Michael McKinnon and Matthew Moore be added as second and third respondents respectively.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ................[sgd]..................................................
R. Wallace, Associate
Date/s of Hearing 12 June 2007
Date of Decision 5 July 2007
Solicitor for the Applicant (A Einfeld) Mr Mark Mackrell, Norton White
Counsel for the Applicant (M Einfeld) Mr Waterstreet
Solicitor for the Respondent Ms Christine Fougère, HREOC
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