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

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.”

The Applicant’s interest in the information arises from road safety research work with which he is involved.
The Respondent decided to provide access to some information but redacted other information.
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.
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.
An internal review upheld the Respondent's initial decision.
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.
The Applicant has sought external review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fraser v SafeWork NSW

Details

AGLC: Fraser v SafeWork NSW [2019] NSWCATAD 227
Case: [2019] NSWCATAD 227
Decision Date: 31 October 2019

CaseChat Overview and Summary

Fraser initiated proceedings in the Land and Environment Court of New South Wales against SafeWork NSW. The case revolves around the disclosure of information, which Fraser sought under the Government Information (Public Access) Act 2009 (NSW). Fraser's request was denied, citing secrecy provisions under the Occupational Health and Safety Act 2000 (NSW) that prevent the disclosure of information that could reasonably be expected to lead to a breach of any other act. Fraser appealed the decision to the Supreme Court, arguing that the secrecy provisions did not apply and that the public interest favoured disclosure.

The central legal issue before the court was whether the information sought by Fraser could reasonably be expected to result in a contravention of any other act if disclosed. Additionally, the court had to consider whether the public interest considerations against disclosure outweighed those in favour of disclosure. Fraser contended that the information pertained to an investigation into a work-related fatality and was of significant public interest, particularly concerning workplace safety and the effectiveness of regulatory oversight. SafeWork NSW argued that disclosure could lead to the identification of individuals involved in the investigation and potentially compromise the integrity of the process.

The court found that the secrecy provisions did apply and that the information in question could reasonably be expected to result in a contravention of other acts if disclosed. The court further determined that the public interest considerations against disclosure outweighed those in favour. The court held that maintaining the confidentiality of the investigation was crucial to ensuring the effectiveness of regulatory processes and protecting individuals involved in the investigation. Consequently, the decision to deny Fraser's request for information was affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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