Emery and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1513

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1513

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600381

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN EMERY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott RFD

Date6 July 2007

PlaceBrisbane

Decision

The Tribunal decides to:

(1)      Affirm the decision under review; and

(2)      Return to the Secretary folios 46 to 43 of file WR02/9761 and folios            59 to 38 of file WR04/6807.

.................[Sgd].............................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – request for access to documents – access to some documents refused – whether documents exempt – whether material withheld is irrelevant to the applicant’s Freedom of Information request – whether disclosure is contrary to the public interest – decision affirmed

Freedom of Information Act 1982 (Cth) ss 11, 22, 36, 58, 61, 64
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 21
Public Service Act 1999 (Cth) s 10

Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683
Electronic Frontiers Australia Inc and Australian Broadcasting Authority [2002] AATA 449
Green and Australian and Overseas Telecommunications Corporation (1992) 28 ALD 655
Gold and Australian Federal Police; Gold and National Crime Authority (1994) 37 ALD 168
Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466
Re McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138
McKinnon and Secretary, Department of Health and Ageing (2004) 85 ALD 699
Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709
McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161
McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187
Harris v Australian Broadcasting Corporation (1983) 5 ALD 545
Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139

REASONS FOR DECISION

6 July 2007	Mr P McDermott RFD, Senior Member
Introduction

1.      Mr Ian Emery has made an application under the Freedom of Information Act1982 (“the Act”) to have access to certain documents in the possession of the Department of Employment and Workplace Relations (“the Department”). Mr Emery has seen part of those documents. However, the Department has refused to give Mr Emery access to those documents in their entirety. I have to decide whether Mr Emery has a “legally enforceable right”[1] to obtain access to the entirety of those documents.

[1] Freedom of Information Act 1982, s 11.

Background

2. Mr Emery is a former Commonwealth employee. Mr Emery considers that officers of the Department have placed a mistaken construction on the operation of s 21 of the Safety, Rehabilitation and Compensation Act 1988. The Department had prepared advice for the Hon K Andrews MP, the then Minister for Employment and Workplace Relations on proposals to amend the Safety, Rehabilitation and Compensation Act 1988. This background explains why Mr Emery has made an application under the Freedom of Information Act 1982 to have access to the file of the Department.

Ambit of Request

3.      On 1 February 2005 Mr Emery lodged an email with the Department which contained the following request: “I require copies of all correspondence, including computer records, in respect of the brief prepared by DEWR on 30/6/2005 for the Minister’s consideration and any related correspondence provided by Comcare in the preparation of this brief” [T3, folio 6].

4.      It is important that the request of Mr Emery not be narrowly construed. In Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692, Deputy President Forgie emphasised that “a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings”.

5.      Deputy President Forgie also pointed out, at 692, that “[t]he request cannot be considered solely in isolation but must be considered in the context in which it is made”.

6.      Having regard to these observations of Deputy President Forgie, I have thought it important to examine other correspondence of Mr Emery to ascertain the ambit of his request: see [T4, folio 8, T27, folio 67].

7.      I consider that, on a fair interpretation of the request, Mr Emery is seeking access to all material in relation to a “brief” that was prepared by the Department on 30 June 2004 for the consideration of the Hon K Andrews MP, the then Minister for the Department of Employment and Workplace Relations.

Reviewable decision

8.      On 24 July 2005 an internal review decision was made by the Assistant Secretary, Safety, Compensation and International Branch [T28, folio 70]. That Officer made a decision to withhold certain documents and delete material from other documents.

9.      Mr Emery was dissatisfied with that decision and on 6 June 2006 he made an application for review of that decision to this Tribunal. In that application Mr Emery stated that the release of the additional FOI material will assist the preparation of a separate application that he has made to this Tribunal.

Reason for request

10. At the commencement of the hearing of this application I informed the parties that, in these proceedings, the reason why Mr Emery seeks access is not material. This is because under s 11(2) of the Freedom of Information Act1982, a person’s right of access is not affected by any reasons the person gives for seeking access. It has been pointed out that access to a document must be considered as access to the world at large, that is even if the applicant seeks the document for “a legitimate and indeed worthy purpose”: see Electronic Frontiers Australia Inc and Australian Broadcasting Authority [2002] AATA 449 at [96] per Deputy President Forgie.

11.     I also mention that there have also been a number of decisions of this Tribunal which have recognised that the reasons why an applicant has sought information are not relevant in determining the right of access to documents: see Green and Australian and Overseas Telecommunications Corporation (1992) 28 ALD 655 at [17], [23], [32] (Deputy President Forgie, Brigadier Brumfield and Dr Urquhart); Gold and Australian Federal Police; Gold and National Crime Authority (1994) 37 ALD 168 at [3] (Deputy President McDonald); Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466 at [43] (Deputy President Forgie).

12. One might make the observation that if officers of the Department have placed a mistaken construction on the operation of s 21 of the Safety, Rehabilitation and Compensation Act 1988, such an interpretation would not bind any court or tribunal that has to consider the operation of s 21. However, the utility of the request of Mr Emery is not something that concerns me as the Act specifically provides that the reason why he seeks access is not material.

Onus of proof

13.     In the proceedings under Part VI of the Freedom of Information Act1982, the respondent has the onus of establishing that all three (3) documents are exempt from disclosure: see s 61. During the hearing of this application I mentioned that if the respondent does not discharge that onus then Mr Emery is entitled to have access to those documents.

Claimed exempt documents

14.     The three (3) documents which the respondent claims are exempt documents are:-

• Document 1 is an email dated 30 September 2003 from Ms S Hodgers to Mr T Thompson. This document is folios 46 to 43 of file WR02/9761.

• Document 2 is a minute dated 30 June 2004 to the Hon K Andrews MP, the then Minister for Employment and Workplace Relations, on proposals to amend s 21 of the Safety, Rehabilitation and Compensation Act 1988. This document is comprised of folios 48 to 38 of file WR04/6807; and

• Document 3 is a duplicate copy of the minute which is Document 2. Document 3 has been signed by the Hon K Andrews MP, the then Minister for Employment and Workplace Relations, as well as noting his decision on the matters raised in the minute. Document 3 has annotations which have been made by an officer of the Department. These annotations have been made after the Minister signed the document. This document is comprised of folios 59 to 49 of file WR04/6807.

15.     As not infrequently happens during the hearing of these applications, the respondent gave Mr Emery more access to the claimed exempt documents. I consider that it was entirely appropriate for Mr Emery to be given such additional access having regard to the nature of the documents. Mr Emery still requires access to the whole of these claimed exempt documents.

Public interest submission

16.     The advocate for the Secretary tendered before the Tribunal an affidavit dated 19 February 2007 of Mr John A Kovacic. Mr Kovacic is the Group Manager, Workplace Relations Policy Group, in the Department [ex R4]. Mr Kovacic also gave evidence before me. During the hearing I sought information from Mr Kovacic as to his classification.  Mr Kovacic advised me that he was a Band 2 SES officer. He also advised me that recently he was the Acting Deputy Secretary of the Department. It is clear that Mr Kovacic is a senior officer of the Department.

17.     In his affidavit Mr Kovacic has deposed that he has reviewed Documents 2 and 3. He deposed that there is a strong public interest in the Government being able to conduct its operations in an efficient manner. Mr Kovacic maintains that to release the documents would discourage thorough policy development and advising procedures for the future.

18.     Mr Kovacic deposed: “The public interest in my view demands that the important role of the Australian Public Service as a professional and apolitical service equally able to serve either alternative Government be upheld. This requires that officials involved in the formulation of high level policy advice have every assurance that their advice will remain confidential. Any dilution of this assurance could place at risk the quality of future advice in terms of its frankness and impartiality” (para 7.1).

19.     Mr Kovacic deposed: “In addition disclosure of documents in the nature of documents 2 and 3 would encourage future policy development and advising to be conducted mainly via verbal communication, with very little material for consideration being reduced to writing. This would impede the ability of the officials involved to fully and properly understand and assimilate information relevant to the formulation of advice. The quality of policy deliberation and advice would inevitably suffer” (para 7.2).

20.     Mr Kovacic deposed: “The Government obviously has responsibility for its legislative agenda. However, in my view no public interest is served by the Government and Minister being placed in a position where they are publicly answerable or accountable for an entirely different matter, that is, whether Government decisions are or are not taken in line with Departmental advice” (para 7.3).

21.     Mr Kovacic further deposed: “Finally, it is necessary to protect the integrity of the decision-making process by clearly separating the final decision-making step and the reasons for it from the advice and opinions of the officials who contributed to the consideration of the relevant issues. Documents 2 and 3 relate to legislative reforms which are currently passing through the Commonwealth Parliament. The Government’s final decision on the appropriate legislative reforms, and the reasons for the decision taken, are available to the public through the parliamentary process. Disclosing documents 2 and 3 would not add to that debate in a meaningful way, and on the contrary may impede it by causing confusion as to the Government’s decision on the appropriate reforms” (para 7.4).

Consideration of the matter

22.     I have examined the documents that Mr Emery now wishes to have access to.

Document 1

23.     I have already mentioned that Document 1 is an email dated 30 September 2003 from Ms S Hodgers to Mr T Thompson. This document is folios 46-43 of file WR02/9761.

24.     Document 1 contains a table, part of which sets out various elements of a proposed package of reforms to the Safety, Rehabilitation and Compensation Act 1988. This part of the table also contains a discussion of the expected impact of changes to premiums needed to fund the Act on a per annum basis. That part of the table has not been released to Mr Emery.

25.     The remainder of the table in Document 1 concerns the treatment of superannuation which is certainly relevant to the request of Mr Emery. That portion of the document has been released to Mr Emery.

26.     I have concluded that to grant access to this document would disclose information that would reasonably be regarded as being irrelevant to the request of Mr Emery. It is apparent from my inspection of Document 1 that it bears no relationship to the “brief” that was prepared by the Department for consideration by the then Minister for Employment and Workplace Relations.

27. I consider that the respondent has already acted pursuant to the spirit of s 22(1)(a)(ii) of the Freedom of Information Act1982 by making available to Mr Emery a copy of Document 1 with the irrelevant material deleted.

Documents 2 and 3

28. I have mentioned that Document 2 is a minute dated 30 June 2004 to the Hon K Andrews MP, the then Minister for Employment and Workplace Relations on proposals to amend s 21 the Safety, Rehabilitation and Compensation Act 1988. This document is comprised of folios 48 to 38 of file WR04/6807.

29.     Document 3 is a duplicate copy of the minute which is Document 2, but it has been signed by the Hon K Andrews MP. As well noting his decision on the matters raised in the minute, Document 3 has annotations which have been made by an officer of the Department. These annotations were made after the Minister signed the document. This document is comprised of folios 59 to 49 of file WR04/6807.

30. During the hearing of this application I raised my concern about the operation of s 36(5) of the Act which states that s 36 does not apply to a document by reason only of purely factual material contained in the document. Indeed, at the conclusion of the hearing I asked the respondent to make submissions on the operation of that provision. Mr Emery was, during the hearing, given access to edited copies of Documents 2 and 3. I am of the opinion that in giving Mr Emery more access to Documents 2 and 3 the respondent has acted quite properly in ensuring that all purely factual material now has been released to Mr Emery. He is, of course, entitled to the release of that material pursuant to s 36(5) of the Act.

31.     It remains for me to consider the material from Documents 2 and 3 which has not been released to Mr Emery.

32. The respondent contends that the unreleased portions of Documents 2 and 3 should not be released pursuant to s 36 of the Act.

• Two part test in s 36

33.     In Re McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 141, President Downes J emphasised that s 36(1)(a) “contains a two part test”. First, there is “the internal working document requirement”. Secondly, “the disclosure of the matter must ‘be contrary to the public interest’”. Both elements of this two part test need to be satisfied in order for a document to be an exempt document under the Act.

First limb: Internal working documents

34.     In order to satisfy what President Downes J in McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 141 referred to as “the internal working document requirement,” I have had regard to s 36(1)(a) which requires that the disclosure of the document “would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth”.

35. After examining the document I am satisfied that the document is “advice” or a “recommendation” which is made to a “Minister or the Government of the Commonwealth” within the meaning of s 36(1)(a) of the Act. The documents make recommendations to the Minister on possible amendments to the Safety, Rehabilitation and Compensation Act 1988.

36.     In addition to my examination of both documents, I have come to this conclusion having regard to the evidence of Mr Kovacic who stated that the documents were part of the deliberations of the Executive Government of the Commonwealth on possible changes to the policies of the Government as well as proposed amendments to the Safety, Rehabilitation and Compensation Act 1988.

37. I also consider that the annotations that are made on Document 3 record a “deliberation” that has taken place within the “Government of the Commonwealth” within the meaning of s 36(1)(a) of the Act. This is because those annotations are part of the implementation of a decision of the Minister.

Second limb: Public interest

38.     The second of the elements in the “two part test” referred to by President Downes J in McKinnon is s 36(1)(b) of the Act which refers to documents, the disclosure of which under the Act “would be contrary to the public interest”.

39.     The public interest aspect of this application is a more difficult issue to resolve. Counsel for Mr Emery submitted that there was a public interest in transparency in Government, and strongly pressed the need for transparency in his submissions. The issue of transparency was also raised by Counsel during his cross-examination of Mr Kovacic.

40.     The respondent has conceded “that there is a legitimate public interest in accountability and transparency in Government”.

41.     The respondent relies upon the affidavit of Mr Kovacic to base its argument that there is a public interest in withholding the whole of Documents 2 and 3 from disclosure.

42.     Before examining the various public interest grounds which have been advanced by Mr Kovacic in his affidavit, I mention that it is appropriate that an officer of the seniority of Mr Kovacic swear such an affidavit. In McKinnon and Secretary, Department of Health and Ageing (2004) 85 ALD 699, Senior Member Beddoe observed at [11], that a First Assistant Secretary had made an affidavit in which he advanced a public interest ground for withholding disclosure of exempt documents. Senior Member Beddoe, at [79], accepted the evidence of the First Assistant Secretary who advanced public interest considerations.

43.     I will now examine the public interest grounds which were advanced by Mr Kovacic in his affidavit.

(1) Frank and confidential communications with Ministers

44.     I have earlier mentioned that Mr Kovacic had, in his affidavit, advanced the need for officers of the Australian Public Service to be able to have frank and confidential communications with Ministers (para. 7.1). This is a well established ground for exemption from disclosure.  Indeed, legislation requires public servants to provide “frank” advice: see Public Service Act 1999, s 10(1)(f). I am satisfied that providing access to the documents would on this ground be contrary to the public interest.

45.     The various decisions of this Tribunal which have examined this public interest ground have been cited by President Downes J in ReMcKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 146.

46.     In McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 146, President Downes J pointed out that in Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709, President Hartigan J had upheld a claim based on “the need for confidentiality in communications between the Minister and the Secretary”. In that case there was no evidence that candour would be in some way impaired.

47.     In McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161 at 186, Deputy President McDonald had remarked that “there is a clear public interest in civil servants being able to communicate in confidence information directly to their responsible minister on issues which are considered to be sensitive”.

48.     In McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 146, President Downes J also remarked: “The claim that there is a need for direct, free and confidential communications with ministers and their staff is not an irrational claim. Nor is the claim that to defeat this need is against the public interest. A former president of this tribunal and a current deputy president have both upheld the claim with respect to communications with ministers”.

49.     In McKinnonv Secretary, Department of Treasury (2006) 229 ALR 187, Callinan and Heydon JJ, at [121], had given recognition to the ground of “jeopardy to candor”. Their Honours had commented that this ground “cannot readily be dismissed”.

(2) Desirability of written communications

50.     I have earlier mentioned that one public interest ground that Mr Kovacic had deposed in his affidavit concerned the deterioration in the quality of advice if advice was to be conducted mainly by verbal communication, with very little material for consideration being reduced to writing (para 7.2). This is also a well established ground for exemption from disclosure. I am satisfied that providing access to the documents would, on this ground, be contrary to the public interest.

51.     In McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161 at 184, Deputy President McDonald had remarked: “Since the making of a record is essential to allow government to operate in an informed way and disclosure would defeat that purpose”. In that particular case the Tribunal was satisfied that the provisions of s 36(1)(b) are satisfied. This decision was cited by President Downes J in Re McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138 at 146.

52.     In McKinnon v Secretary, Department of the Treasury (2006) 229 ALR 187, Callinan and Heydon JJ, at [121], had given recognition to the ground of the “desirability of written communications”. Their Honours had also commented that this ground “cannot readily be dismissed”.

(3) Disclosure of policy options

53.     I have earlier mentioned that one ground that Mr Kovacic has advanced in his affidavit was that to grant access to Documents 2 and 3 would be to disclose policy options. Mr Kovacic had deposed that no public interest would be served by the Government and Minister being placed in a position where they are publicly answerable or accountable for whether Government decisions are or are not taken in line with Departmental advice (para 7.3). Mr Kovacic also deposed that providing access to the documents would cause confusion as to the Government’s decision on the appropriate reforms (para 7.4). I am satisfied that providing access to the documents would, on these grounds, be contrary to the public interest.

54.     Documents 2 and 3 contain policy options for the consideration of the Minister. Quite often a recommendation to a Minister will contain various options for the Minister to consider. Indeed, legislation requires public servants to provide “comprehensive” advice: see Public Service Act 1999, s 10(1)(f). This would require public servants to outline to the Government various options for consideration. In his affidavit, Mr Kovacic had deposed that the release of the documents would not “add to that debate in a meaningful way, and on the contrary may impede it by causing confusion as to the Government’s decision on the appropriate reforms” (para 7.4). I also consider that the release of the documents would inhibit high level policy development in the Department.

55.     In Harris v Australian Broadcasting Corporation (1983) 5 ALD 545 at 556 Beaumont J held that it was against the public interest to disclose opinions of a tentative or provisional kind. His Honour had recognised that the release of such documents would create a misleading impression in the minds of readers.

56.     In Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139 at 154 Deputy President McDonald had referred to “a clear public interest” in the Minister being able to consult prior to making a final decision.

57.     In McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187, Callinan and Heydon JJ, at [122], had referred to “an issue of tentativeness” by which their Honours had referred to documents which “were concerned with matters that were not settled and recommendations that were not adopted”. Their Honours had commented: “It is difficult to see how it would not be reasonable for a minister to take the view that the release of material of that kind would not make a valuable contribution to public debate”.

Ruling

58.     I find that Documents 1 is irrelevant to the request of Mr Emery.  

59. I find that Documents 2 and 3 are exempt documents. Having regard to s 11 (1)(a) of that Act, Mr Emery does not have a legally enforceable right of access to those documents.

60. I should also mention that once it is established in these proceedings that a document is an exempt document, I am constrained by s 58(2) of the Freedom of Information Act1982 from deciding that access to the document, so far as it contains exempt matter, is to be granted.

Procedural orders

61.     It is necessary for me to make some procedural orders.

62. At the hearing of this matter I made an order under s 64(1) of the Act that unexpurgated versions of the exempt documents which were provided to the Tribunal be restricted to the Tribunal and to the Tribunal staff. Having regard to my decision in this matter, it is necessary for me to order that those documents be returned to the respondent.

Orders

63.     I make the following orders:-

(1)      The decision under review is affirmed; and  

(2)      Return to the Secretary folios 46 to 43 of file WR02/9761 and folios 59                   to 38 of file WR04/6807.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P McDermott RFD, Senior Member.

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  22 February 2007
Final Submissions Received     19 March 2007
Date of Decision  6 July 2007
Counsel for the Applicant         Mr J Curran
Solicitor for the Applicant          Sciaccas 
Counsel for the Respondent     Mr J Hyland
Solicitor for the Respondent     Australian Government Solicitor