Fraser v SafeWork NSW

[2019] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fraser v SafeWork NSW [2019] NSWCATAD 227
Hearing dates:	17 June 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Administrative Law – – access to government information – secrecy provisions - whether disclosure could reasonably be expected to constitute a contravention any other Act – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Work Health and Safety Act 2011
Cases Cited:	Clarke v Blacktown City Council [2013] NSWADT 36, Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19. Drake v Minister for Immigration and Ethnic Affairs [1979] AATA, (1979) 46 FLR409. Perilya v Nash [2015] NSWSC 706
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Stuart Fraser (Applicant) SafeWork NSW (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Legal, Department of Finance, Services and Innovation (Respondent)
File Number(s):	2018/00348202
Publication restriction:	Nil

Reasons for Decision

Introduction

1. The Applicant made an access application to SafeWork NSW (“SafeWork” or “the Respondent”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”). In his access application the Applicant requested access to information relating to an incident on 27 March 2017, involving a garbage truck operated by Blacktown City Council (“(BCC)”). The Applicant sought:

“The complete list of questions put to Blacktown City Council re the investigation looking into the fatal accident - 27-03-2017 motorcyclist died - colliding with BCC garbage truck Palmyra Ave, NSW 2770

The full reply; with whatever supporting evidence provided by Blacktown City Council (BCC)

The outcome/decision made; what if any actions or recommendations.”

2. The Applicant’s interest in the information arises from road safety research work with which he is involved.

3. The Respondent decided to provide access to some information but redacted other information.

4. The Applicant sought an internal review of the determination. The internal review request was limited to the decision to the extent that it declined to provide the Applicant with access to information provided by BCC (“the BCC Answers”) in response to a Notice issued by SafeWork’s Inspector John Lennon under section 155 of the Work Health and Safety Act 2011 (“the WHS Act”). Under this section, SafeWork may compel anyone to produce information if the information will assist the investigation. Penalties apply for failure to comply with these notices.

5. The Respondent contacted BCC in relation to the access application and BCC indicated that it did not consent to the release of the information. BCC has maintained that position.

6. An internal review upheld the Respondent's initial decision.

7. The Applicant sought review of the Respondent's decision by the Information Commissioner. The Information Commissioner concluded that the decision was justified and made no recommendation.

8. The Applicant has sought external review by the Tribunal. He is only seeking review of the decision not to provide access to the BCC Answers.

Applicable legislation

9. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law.

10. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA, (1979) 46 FLR409.

11. In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: section 63(2) of the ADR Act.

GIPA Act provisions

12. The Tribunal has jurisdiction to review the decision under section 100 of the GIPA Act which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the ADR Act.

13. The Respondent bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act.

14. The GIPA Act has an objects provision at section 3 which includes a reference at section 3(2)(a) that the legislation be applied so as to further those objects. The objects of the GIPA Act are as follows:

3 Object of Act

(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

15. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure or the Respondent is otherwise entitled to refuse to deal with the access application. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.

16. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides:

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

[Note: The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

17. The Tribunal must determine whether or not the Respondent was justified in determining that there was an overriding public interest against disclosure of the information withheld. The Tribunal can affirm the Respondent’s decision, set aside the decision, or parts of the decision, and order the release of the withheld information, or remit the matter to the Respondent for reconsideration.

18. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19.

19. The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. The only public interest considerations against disclosure that may be taken into account are those listed in the Table. The public interest test must be applied in accordance with the principles set out in section 15 of the GIPA Act.

Public interest consideration in favour of disclosure

20. SafeWork identified a number of considerations in favour of disclosure. In particular it found that:

1. There is a general public interest in favour of disclosing Government held information. Disclosure assists in promoting a Government that is open, accountable, fair and effective;

2. The release of the requested information may demonstrate that a thorough investigation of the incident was undertaken and appropriate information was collected to enable the consideration of all relevant factors in the matter; and

3. Release may further promote public awareness of work health and safety matters.

21. The Applicant has identified public education to promote public safety as a consideration in favour of disclosure.

22. I agree with these identified considerations in favour of disclosure.

Public interest consideration against disclosure

23. SafeWork identified clauses 1(d) and 1(f) and clause 6 of the table to section 14 of the GIPA Act as relevant considerations.

24. Clause 1 of the Table to section 14 of the GIPA Act provides:

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

…

(f)   prejudice the effective exercise by an agency of the agency's functions,

…

25. Clause 6 of the Table to Section 14

6 Secrecy provisions

(1)   There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

(2)   The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

26. The Respondent submitted that there is an overriding public interest against disclosure in relation to the BCC answers because on balance the Applicant's research interest in the BCC answers and any associated public interest in disclosing them is necessarily outweighed by the need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions by all means through the issue of notices under section 155 of the WHS Act and otherwise.

27. Section 155 of the WHS Act provides:

155 Powers of regulator to obtain information

(1)   This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act.

(2)   The regulator may, by written notice served on the person, require the person to do one or more of the following:

(a)   to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge,

(b)   to produce to the regulator, in accordance with the notice, those documents,

(c)   to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(3)   The notice must:

(a)   state that the requirement is made under this section, and

(b)   contain a statement to the effect that a failure to comply with a requirement is an offence, and

(c)   if the notice requires the person to provide information or documents or answer questions:

(i)   contain a statement about the effect of sections 172 and 269, and

(ii)   state that the person may attend with a legal practitioner.

(4)   The regulator must not make a requirement under subsection (2) (c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2) (a) and (b) and has been unable to do so.

(5)   A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

(6)   Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7)   Section 172 (with any necessary changes) applies to a requirement under this section.

(8)   The regulator has the same power to record questions, answers and evidence given orally under this section as an inspector has under section 185A in respect of questions and answers to questions given under Part 9.

28. Section 271 of the WHS Act provides:

271 Confidentiality of information

(1)   This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).

(2)   The person must not do any of the following:

(a)   disclose to anyone else:

(i)   the information, or

(ii)   the contents of or information contained in the document,

(b)   give access to the document to anyone else,

(c)   use the information or document for any purpose.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

(3)   Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document:

(a)   about a person, with the person’s consent, or

(b)   that is necessary for the exercise of a power or function under this Act, or

(c)   that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use:

(i)   is necessary for administering, or monitoring or enforcing compliance with, this Act, or

(ii)   is necessary for the administration or enforcement of another Act prescribed by the regulations, or

(iii)   is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or

(iv)   is necessary for the recognition of authorisations under a corresponding WHS law, or

(v)   is required for the exercise of a power or function under a corresponding WHS law, or

(d)   that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or

(e)   that is required or authorised under a law, or

(f)   to a Minister.

(4)   A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless:

(a)   the disclosure is made with the consent of the complainant, or

(b)   the disclosure is required under a law.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

The Issues for determination

29. The issue for determination is whether the Respondent has made the correct and preferable decision in its decision to refuse to release the information that the Applicant is seeking.

30. In determining this issue it is necessary to consider whether the public interest consideration against disclosure outweigh those in favour of disclosure.

The Evidence

31. The Respondent relies on the evidence of a manager in its Metropolitan Operations and Sector Initiatives Directorate, Mr Ian Blume, and that of the Coordinator of its Right to Information unit, Ms Sue Stewart. Each has provided a statement in the proceedings but neither was required for cross-examination. Mr Bell, solicitor for the Respondent, provided both written and oral submissions.

32. The Applicant relies on his own evidence and provided both written and oral submissions.

33. The Information Commissioner provided written submissions in relation to the applicable law. These submissions provide a useful outline of the relevant principles, particularly in relation to caselaw that has considered the relevant public interest consideration against disclosure.

The Respondent’s case

Mr Ian Blume

34. As noted above, SafeWork’s Inspector John Lennon issued a Notice to BCC under section 155 of the WHS Act. Mr Blume stated that he was Inspector Lennon’s manager and that Inspector Lennon has retired and is no longer employed by the Respondent.

35. Mr Blume provided a copy of the Notice issued by Inspector Lennon to BCC.

36. Mr Blume stated that he examined the Respondent’s records associated with the steps taken by Inspector Lennon in connection with the Notice that he issued to BCC. He noted that the records indicate that Inspector Lennon used his powers under section 155 of the WHS Act to request information from BCC. From his review of the records he found that BCC responded to Inspector Lennon in compliance with the Notice. The records show that:

1. Inspector Lennon received a response to the Notice from BCC on 3 May 2017;

2. Inspector Lennon responded to BCC on 5 May;

3. BCC responded further to Inspector Lennon on 5 May;

4. Inspector Lennon received a further response to the Notice on 9 May 2017

37. Mr Blume stated that the information and documentation that BCC provided to Inspector Lennon was obtained by Inspector Lennon in response to the Notice and in the course of exercising his function as an inspector with SafeWork and in the course of his inquiries.

Ms Sue Stewart

38. Ms Stewart stated that she oversaw the processing of the Applicant's access application and also the internal review request. She explained the processes that the Respondent adopted in relation to responding to the Applicant’s application. This included the searches undertaken and the need for third party consultation.

39. Ms Stewart stated that SafeWork consulted with BCC in the course of processing both the initial application and the internal review application, and asked whether it consented to the release of the BCC answers. On both occasions BCC indicated that it did not consent to the release. This position was repeated in a further letter dated 18 March 2019 from BCC to the Respondent.

40. Ms Stewart expressed the view that a key public interest consideration is to protect the identity of people who make disclosures to SafeWork as the work health and safety regulator and that a further key public interest consideration is to protect information provided to SafeWork under compulsion. She stated that the BCC answers in this case fall into this category of information. In her view, if information of this kind is not protected from disclosure it could prejudice the future supply of information to SafeWork in the course discharging its investigative functions under the WHS Act.

Submissions

41. Mr Bell provided submissions in support of the Respondent’s position.

42. As noted above, clause 6(1) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to constitute a contravention of a provision of another Act that prohibits the disclosure of information.

43. It is submitted that section 271 of the WHS Act provides a comprehensive protection against disclosing any of the information which has come into the knowledge of the Respondent in the course of exercising its functions under the WHS Act. It is further submitted that this protection applies to the information that is the subject of this application.

44. If any person was to disclose any of the information that BCC provided in response to the Notice issued to it under section 155 of the WHS Act, that person would be committing an offence undersection 271(2) of the WHS Act unless one of the provisions in section 271(3) is applicable.

45. For example, section 271(3)(a) would prevent an offence being committed if BCC consented to disclosure of the information. However, BCC did not consent to disclosure. It is submitted that because of the lack of consent, the exception to the confidentiality provision under section 271(3)(a) of the WHS Act does not apply. The Respondent further submits that none of the other exceptions in section 271(3) apply in the circumstances of this matter.

46. Pursuant to clause 6(2) of the Table to section 14, the public interest considerations under this clause extend to a consideration of the policy that underlies the prohibition against disclosure. Mr Bell provided submissions in regard to the policy underlying section 271 of the WHS Act. He submitted that the breadth of the wording of the prohibition in section 271(2) of the WHS Act is indicative of an intention by the Legislature to provide a comprehensive protection against disclosing any information which has come into the knowledge of the Respondent in the course of exercising either a power, or a function under the WHS Act.

47. It is further submitted that by providing a distinct statutory offence under section 271(2) of the WHS Act the Parliament has expressed an intention to provide the highest possible protection against disclosure of:

1. any and all information obtained in the course of exercising any power or function under the WHS Act; and/or

2. the contents of and/or any information contained within any document to which anyone within the Respondent has obtained or gained access to in the course of exercising any power or function under the WHS Act.

48. Mr Bell relies on views in regard to section 271 of the WHS Act expressed by Hall J in Perilya v Nash [2015] NSWSC 706 at paragraph 10 of the decision:

[T]he WHS Act contains protective provisions. In particularly, s 271 is directed at ensuring confidentiality in relation to information obtained.

49. Mr Bell also referred to the Second Reading Speech by Mr Andrew Stoner, Deputy Premier, dated 6 May 2011 on the introduction of the Work Health and Safety Bill 2011. It is submitted that it is consistent with the stated policy intent of the WHS Act to read section 271 as one of the Act's protective provisions. The provision is directed at ensuring confidentiality of information coming into the possession of persons exercising a function or power of the Respondent. Mr Andrew Stoner stated:

“Through the inclusion of many policy innovations, the bill strengthens the capacity of regulators to work with businesses and workers to improve health and safety and reduce the tragedy of workplace death and injury...".

50. Mr Bell submitted that any provision having the effect of maintaining the confidentiality of information obtained or accessed in exercising any power of function under the WHS Act should be given a broad construction that would promote the purpose or object of the WHS Act.

51. It is further submitted that treating section 271 of the WHS Act as a secrecy provision within the meaning of Clause 6(1) of the Table to section 14 of the GIPA Act, is to give section 271 a construction which will have the effect of promoting both:

1. the express objects of the WHS Act as a whole which include, in section 3(1)(e) "securing compliance with the Act through effective compliance and enforcement measures"; and

2. an implied purpose of section 271 of the WHS Act, being to ensure confidentiality of information obtained in the course of administering the Act.

52. The policy underlying the prohibition in section 271 is directed at ensuring confidentiality of information obtained by the Respondent and also strengthening the capacity of regulators to work with businesses and workers to improve health and safety, a further overriding public interest against disclosure arises in this case in relation to the information provided by BCC.

53. It is submitted that a public interest consideration against disclosure thus arises from the operation of clause 6(1) in the Table to section 14 of the GIPA Act in the circumstances of this matter.

54. The Respondent also relies on the considerations set out in clauses 1(d) and 1(f) of the Table to section 14 of the GIPA Act.

55. The Respondent relies on the considerations set out in clause 1(d) pertaining to prejudicing the supply of confidential information to an agency that facilitates the effective exercise of that agency's function.

56. The Respondent also submits that the information that BCC provided is clearly confidential material and that if information of this type were disclosed to the public, BCC would have concerns to in relation to providing similar information to the Respondent in the future.

57. The Respondent further submits that the public interest in maintaining the flow of information to SafeWork to assist in the effective exercise of its functions under the WHS Act is compelling. It contends that its ability to obtain similar information from other sources in the future would be impaired by disclosure of the information. It contends that public confidence in the Respondent's scope for protecting confidential information provided to it in the exercise of its investigative powers under the WHS Act is at risk of being seriously undermined.

58. The Respondent contends that when weighing up the evidence and material in this case, and having regard to the cases raised above, on balancing the competing interests, the public interest considerations against disclosure outweigh those in favour of disclosure. It is therefore submitted that the correct and preferable decision is to affirm the decision

The Applicant’s case

59. The Applicant’s interest in obtaining access to the withheld information arises from road safety research work with which he is involved in his community role with Rotary Australia. He submitted that in the past information was readily available for educational purposes and that the BCC answers to each of the questions could provide the basis for educational material.

60. The Applicant rejects the Respondent's view that the information is protected by another NSW law. He submits that the purpose of the WHS Act is to promote public safety and that the information should not be kept secret as it is relevant to public education regarding road safety.

61. He submitted that the objects of the WHS Act favour the release of the information for the purposes of public education and that the objects would be severely undermined if the information is not released.

62. He stressed the importance of having accountability and that is undermined by allowing secrecy and confidentiality to take precedence over workers safety and public interests. He submits that the confidentiality aspect of section 271 of the WHS Act is directed towards informal communication and should not present a basis for rejecting his request for information intended for an educative purpose.

63. He submits that the Respondent’s contentions regarding clause 6 of the table to section 14 of the GIPA Act have not been substantiated. In his opinion, the Respondent has not provided evidence to demonstrate that section 271 of the WHS Act would be contravened if the released information led to disclosures of public interest for example in programs where public safety is a point of focus. In his view, educational case studies fall within that category and can be published nation-wide to help educate and improve safety.

64. The Applicant also submits that the Respondent has not established how the disclosure of the BCC information could reasonably be expected to have any adverse effect to a degree that that warrants its decision to refuse access to the information.

65. He submits that the decision in Perilya v Nash is not relevant to this matter and can be distinguished on its facts.

Consideration

66. I propose to consider Clause 6 of the Table to Section 14 before the other issues raised by the Respondent. As will be apparent it is my view that the public interest consideration against disclosure under clause 6 should be given significant weight and as such provides a basis for concluding that the Respondent has made the correct and preferable decision.

67. SafeWork may compel anyone to produce information if the information will assist an investigation. Penalties apply in relation to non-compliance with a notice issued under section 155 of WHS Act. Inspector Lennon issued a notice to BCC under section 155 of WHS Act. Through that Notice, BCC was compelled to provide answers to the questions asked by SafeWork.

68. It is clear that Inspector Lennon required BCC to provide the information in the course of exercising his function as an inspector with SafeWork and in the course of his inquiries. In my view there can be no doubt that the withheld information was provided to the Respondent in the exercise of its functions under section 155 of the WHS Act.

69. It is a requirement that any records obtained through a formal WHS notice to produce information, are dealt with in a confidential manner. The information must not be disclosed to anyone or used for any purpose other than the purpose for which it was obtained.

70. Clause 6(1) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act.

71. Clause 6(2) requires the consideration of the policy that underlies the prohibition against disclosure.

72. In Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 I considered that the public interest consideration against disclosure was established in regard to withheld information that concerned the affairs of tax payers, and agreed with the Respondent's contention that the release of the information would directly contravene section 81 of the Taxation Administration Act 1996 which prohibited certain disclosures of information by tax officers. I found that the public interest consideration against disclosure under clause 6 should be given significant weight.

73. In Clarke v Blacktown City Council [2013] NSWADT 36, the Tribunal confirmed that the policy which underlies the prohibition on disclosure in the secrecy provision is relevant, and that the extent to which the prohibition on disclosure is subject to exceptions may assist in identifying the policy behind the provision. The Tribunal took into account the exceptions to the secrecy provision in section 664 of the Local Government Act 1993 in ascertaining the underlying policy and found, at paragraph [67], that the prohibition on disclosure in that Act:

"... is no more than an expression by Parliament that disclosure of information obtained in the administration of the LG Act is to be done in an orderly and appropriate manner having regard to the purpose for which it was obtained or created. This in my view is reflected in the breadth of the circumstances in which information can be disclosed as set out in paragraphs 664(1)(a) to (e) (including under the GIPA Act) and subsection 664(1 B) Accordingly, in my view little weight can be given to this public interest consideration against disclosure "

74. In the present matter, the relevant policy that underlies the prohibition against disclosure is that in regard to the WHS Act.

75. The main object of the WHS Act, set out in section 3, is “to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces”. The purpose of section 155 of the WHS Act is to grant the regulator power to compel a person to provide any information, documents or other evidence that the person may have in relation to a possible contravention of the WHS Act. Section 148 of the WHS Act prohibits the disclosure of information obtained in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention other than in limited specified circumstances. Section 271 applies if a person obtains information or gains access to a document in exercising any power or function under the WHS Act.

76. I agree with the Respondent that section 271 of the WHS Act provides a comprehensive protection against disclosing the information unless one or more of the identified exceptions found in section 271(3) of the WHS Act applies. The Respondent consulted with BCC to seek its views in regard to the access application and BCC maintains its objections to the release of the information. In my view, none of the other section 271(3) exceptions applies.

77. In my view, a contravention of Section 271 of the WHS Act would occur if the information was released.

Findings

78. In my view, clause 6(1) of the Table to section 14 should be given significant weight. I am satisfied that in the circumstances of this matter, the consideration against disclosure outweighs the considerations in favour of disclosure.

79. I note the Respondent’s contention that other considerations against disclosure also apply to the withheld information. I agree that there is a need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions. I also agree that that SafeWork’s ability to obtain similar information from other sources in the future would be impaired by disclosure of the information. While I am in general agreement with the Respondent in this regard to these considerations against disclosure, given my finding in regard to clause 6(1) of the Table to section 14 I do not need to consider those matters further.

80. In my view, the Respondent has made the correct and preferable decision and therefore it should be affirmed.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 October 2019