Fraser v SafeWork NSW (No 2)

[2021] NSWCATAD 79

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

Administrative Decisions Review Act 1997

Work Health and Safety Act 2011

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

Transport for NSW v Searle [2018] NSWCATAP 93

Category:

Principal judgment

Parties:

Stuart Fraser (Applicant)
SafeWork NSW (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Legal, Department of Finance, Services and Innovation (Respondent)

Also heard:
Information Commissioner (see section 104(1), Government Information (Public Access) Act 2009)

File Number(s):

2018/00348202

Publication restriction:

Nil

Reasons for Decision

Introduction

1. 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”).

2. 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.

3. The Appeal Panel concluded at paragraphs [34] - [37]:

1. 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…