Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 Hearing dates: On the papers Date of orders: 30 March 2021 Decision date: 30 March 2021 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
Cases Cited: Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
DDT v Charles Sturt University [2017] NSWCATAD 329
Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13
Fraser v SafeWork NSW [2019] NSWCATAD 227
Fraser v SafeWork NSW [2020] NSWCATAP 92
Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280.
Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43
Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73
Category: Principal judgment Parties: Stuart Fraser (Applicant)
SafeWork NSW (Respondent)Representation: Solicitors:
Also heard:
Applicant (Self Represented)
Legal, Department of Finance, Services and Innovation (Respondent)
Information Commissioner (see section 104(1), Government Information (Public Access) Act 2009)
File Number(s): 2018/00348202 Publication restriction: Nil
Reasons for Decision
Introduction
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The background to this matter is set out in Fraser v SafeWork NSW [2019] NSWCATAD 227 (“Fraser 2019”). In that decision I affirmed the decision by SafeWork NSW (“the Respondent”) to refuse to provide the Applicant with access to information that he requested. The Applicant sought access to information provided by Blacktown City Council (“BCC”). The information comprised answers (“the BCC Answers”) to a series of questions that BCC had given 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”).
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The Applicant appealed that decision. The Appeal Panel decision is recorded as Fraser v SafeWork NSW [2020] NSWCATAP 92 (“the Appeal Panel decision”) The Appeal Panel allowed the appeal and made orders remitting the matter for redetermination.
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The Appeal Panel concluded at paragraphs [34] - [37]:
It is not clear from the approach adopted by the Tribunal in [79] to consideration of the public interest provisions in cl 1(d) and (f) whether the Tribunal regarded cl 6(1), and s 271, as applying in effect a conclusive presumption of an overriding public interest against disclosure. If that were the approach in fact adopted, that would reflect an error of law. Section 11 of the GIPA Act provides that that Act overrides a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified exceptions, other than a provision of a…
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- AGLC
- Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79
- Case
- [2021] NSWCATAD 79
- Decision Date
CaseChat Overview and Summary
The court examined the secrecy provisions of the GIPA Act and considered whether the information in question was subject to a secrecy direction under the Civil Liability Act 2002. The court found that the information was subject to a secrecy direction, which meant that it was not available for disclosure under the GIPA Act unless the public interest in disclosure outweighed the public interest in non-disclosure. The court weighed the public interest considerations on both sides and concluded that the secrecy provisions applied, and the public interest considerations against disclosure were stronger. The court affirmed the decision to deny Fraser access to the information.
Orders
Orders of the court
The decision under review is affirmed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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