Galanos and Department of Immigration and Citizenship
[2010] AATA 1004
•14 December 2010
CATCHWORDS – FREEDOM OF INFORMATION – CONFIDENTIALITY – order restricting access to confidential affidavit.
PRACTICE AND PROCEDURE – confidentiality order – consideration of mandatory requirements in s 63(1) of FOI Act – public interest immunity.
WORDS AND PHRASES – “give due regard to” – “nature of the proceedings” – “exempt matter contained in a document to which the proceedings relate” – “matter or information of a kind.”
Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish and Ors (1980) 29 ALR 228
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
D. v National Society for the Prevention of Cruelty to Children [1978] AC 171
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd [1982] AC 617
Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180; 22 ALD 484
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
Re Australian/Eastern USA Shipping Conference – Report to the Minister (1975) 8 ALR 353
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2010) 51 AAR 308
Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581
Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33
Rogers v Home Secretary [1973] AC 388
Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 83 ALD 545; 215 ALR 162; 79 ALJR 1009
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345
Slinn v Nominal Defendant [1] [1964] HCA 72; (1964) 112 CLR 334
Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy [1] [2007] AATA 2100; (2007) 47 AAR 76
Acts Interpretation Act 1901 s 15AB
Administrative Appeals Tribunal Act 1975 ss 25(1) and (6)(a), 33(1), 34J, 33, 33A, 35, 35(1) and (1A), 35(2) and (3), 35A, 36(4), 37 and 39
Education Services for Overseas Students Act 2000
Freedom of Information Act 1982 ss 11(2), 37(1) and (2)(b), 41, 58(2), 61(1) and 63(1)
Migration Act 1958
Tradesmen’s Rights Regulation Act 1946
Migration Regulations 1994 r 2.26B
DECISION AND REASONS FOR DECISION [2010] AATA 1004
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/3408
GENERAL ADMINISTRATIVE DIVISION )
Re:TINA GALANOS
Applicant
And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 14 December 2010
Decision:The Tribunal orders that:
publication or disclosure of the confidential affidavit of Mr Joseph Petyanszki, which was sworn on 27 October 2010, be restricted to the respondent and its officers and legal representatives, to members and staff of the Tribunal and to staff of Auscript.
S A FORGIE
Deputy President
REASONS FOR DECISION
Ms Tina Galanos applied for review of a decision made by the Department of Immigration and Citizenship (Department) refusing her access to some of the documents that she had requested under the Freedom of Information Act 1982 (FOI Act). She had sought access to her personal file and to all documents relating to her business Axilleon Cakes. Although the Department claimed exemption under both ss 37(2)(b) and 41(1) in relation to some documents and that other documents were irrelevant to her request, Ms Galanos challenges its decision only in so far as it has claimed exemption under s 41(1).
The Department has asked me to make an order restricting access to a confidential affidavit, which was sworn by Mr Joseph Petyanski on 27 October 2010, to the Department and its representatives and to the members and staff of the Tribunal and staff of Auscript directly involved in this matter. It has done so on the basis that disclosure will negatively affect the Department’s ongoing investigations and law enforcement activities. They would, it is submitted, be exempt from disclosure under ss 37(1), (2)(b) and 41 of the FOI Act and would also reveal the contents of the documents in issue in the proceedings. I have power to make such an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) but must also consider s 63(1) of the FOI Act. At the conclusion of the hearing, I made an order in the terms requested until further order but indicated that I would consider the matter further and give written reasons.
I have decided to order that publication or disclosure of the confidential affidavit of Mr Joseph Petyanszki sworn on 27 October 2010 be restricted to the respondent and its officers and legal representatives, members and staff of the Tribunal and staff of Auscript.
BACKGROUND
On the basis of the open affidavit of Mr Joseph Petyanszki sworn and lodged on 27 October 2010, I find that the Department has responsibilities for the regulation of the international education industry under the Education Services for Overseas Students Act 2000 (ESOS Act). It shares those responsibilities with other Federal and State authorities. As part of its responsibilities, the Department processes and grants student visas on the basis of a confirmation of enrolment issued by an education provider, assesses breach of student visa conditions arising from reports issued by education providers under the ESOS Act and provides a skilled migration pathway to international students who have relevant qualifications and work experience.
A business unit known as Trades Recognition Australia (TRA) has been established within the Workplace Programmes Branch of the Department. It is the nominated assessing authority under r 2.26B of the Migration Regulations 1994 for the purpose of a skills assessment under the Migration Act 1958 (Migration Act). TRA assesses a person’s trade skills before he or she may lodge an application for a skilled migration visa. It assesses those trade skills against the trades classifications set out in the Tradesmen’s Rights Regulation Act 1946 and other relevant trade classifications as assessed by it under the Migration Act and relevant regulations.
On or about 20 October 2008, the TRA made a Case Assessment Report identifying 48 work references provided by the Axilleon Caffe Cake Shop relating to the period between January and December 2007. The Department commenced an investigation into the 48 work references on or about 14 October 2009.
THE POWER TO MAKE AN ORDER RESTRICTING ACCESS
The power
The power to make an order restricting access to a document lodged in the Tribunal is found in s 35(2) of the AAT Act. It provides:
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)…
(aa)…
(b)…
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
The context in which the power is exercised
Section 35(1)(c) must be read in its context. The boundaries of that context are drawn in part by ss 33, 34J and 35(1) and (1A) of the AAT Act and in part by any relevant provision in the legislation conferring jurisdiction on the Tribunal to review a decision made under it.
Section 33(1) of the AAT Act provides that, subject to the legislation itself and to any other enactment that may apply, the procedure of the Tribunal is a matter for its own discretion. While that is so, it is equally clear that the Tribunal will conduct a proceeding with as little formality and technicality and with as much expedition as the requirements of the AAT Act and other relevant enactments permit and a proper consideration of the matters before the Tribunal permit.[1]
[1] AAT Act, s 33(1)(b)
It is also clear from the remaining provisions of the AAT Act that it is assumed that there will be a “hearing” of a “proceeding”. The word “proceeding’ is given a wide definition and encompasses any of the substantive applications referred to in paragraphs (b) to (g) of the definition in s 3(1) of the AAT Act to incidental applications made in the course of, or in connection with, an application or proposed application, or a matter referred to in those paragraphs. The substantive applications include applications to the Tribunal for review of a decision.
In ordinary use, a “hearing” is “an opportunity to state one’s case” or, when used in a court setting, “a judicial investigation and listening to evidence and arguments, especially without a jury”.[2] Essentially, the meaning is no different in the Tribunal. It is the means by which the Tribunal examines and enquires into the issues raised by the application and calls for and listens to evidence and arguments about it as well as arguments about the applicable law. It provides an opportunity to a person to state a case, and the Tribunal is obliged to do that.[3]
[2] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[3] AAT Act, s 39
There are occasions on which a hearing may be dispensed with. Section 34J of the AAT Act, for example, provides that the Tribunal may review a decision by considering the documents and other material lodged with it and without holding a hearing in certain circumstances. Those circumstances are that the Tribunal considers that the issues for determination can adequately be determined in the absence of the parties and the parties consent to the determination of the review without a hearing.
Section 35(1) relates to the usual situation in which the Tribunal must hold a hearing. It provides that, subject to s 35 itself, “… the hearing of a proceeding before the Tribunal shall be in public.” Section 35(1A) is directed to ensuring that the public nature of the hearing is preserved even when, under s 35A, the Tribunal permits a person to participate in a hearing by a means of communication other than personal attendance.
The context, then, is one of publicity. This is emphasised by s 35(3) when it sets for the Tribunal the basis on which it must consider whether the hearing of a proceeding should be in private or:
“… whether publication, or disclosure to some or all the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted”.[4]
The Tribunal is required to:
“… take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and contents of the documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.” (emphasis added)
[4] AAT Act, s 35(3)(b)
It is clear that the Tribunal is to take the desirability of public hearings as the basis of its consideration but that it is to “pay due regard” to any reasons given to make all or part of the hearing a private matter and to restrict access to evidence or documents before it. That means that the foundation or starting point, and so “basis”,[5] of my consideration is that a public hearing is desirable. If that is the foundation or starting point, what is meant by my obligation to “pay due regard” to reasons given for that public hearing to be restricted in some way? In so far as it is relevant, the word “regard”, when used as a noun in this instance, means “thought or attention …”.[6] The word “pay” means “to give”[7] and, in this context, the word “proper” means “appropriate”. Looking only at dictionary meanings, then, when I am required to “pay due regard to” the reasons, I am required to give them appropriate thought or attention.
[5] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[6] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[7] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
I am mindful, of course, that I must not “distract myself from the language of the applicable statute”.[8] As Hayne and Heydon JJ said in Shi v Migration Agents Registration Authority (Shi):
“As this Court has so often emphasised … in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. The masking effect occurs because attention is focused upon the expression used in decided cases, not upon the relevant statutory provisions.”[9]
[8] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345 at [92]; 311; 366 per Hayne and Heydon JJ
[9] [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345 at [92]; 311; 366
This approach is reminiscent of the literal approach to statutory interpretation but other authorities suggest that a focus on the literal or grammatical meaning of the provision may not always lead to the correct interpretation. This point was made by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority[10] (Project Blue Sky):
“… [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction … may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”[11]
[10] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
[11] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [78]; 384; 856-857; 511
Hayne J was a member of the High Court in both Shi and Project Blue Sky and I do not think that there is any inconsistency in his being so. Clearly, the majority in Project Blue Sky considered that regard could be had to secondary material. The canons of construction are secondary material. The material to which regard may had under s 15AB of the Acts Interpretation Act 1901 (AI Act) in ascertaining the meaning of a provision is secondary material. The material that may be used to determine the limits of a discretion conferred by a legislative provision may be the other provisions in the relevant statute but they may also be secondary material.[12] In Shi, his Honour and Heydon JJ said that “secondary material must not be permitted to distract attention from the language of the applicable statute”. Their Honours did not say that regard could not be had to secondary material. It seems to me that they meant that the particular language under consideration must be the focus of attention. I must start with it, I must keep it in mind throughout my consideration and I must come back to it but I am not prohibited from looking to secondary material for some guidance and assistance in interpreting it.
[12] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J
It seems to me that this approach has regard to the realities of the way in which legislation is drafted and the context in which the Tribunal does reviews decisions. Neither occurs in a vacuum. Rather, Parliamentary Counsel and the Tribunal both operate in a world in which the words they use and interpret might well have been used and interpreted on earlier occasions. Parliamentary Counsel may well choose one word rather than another to convey the meaning intended by the policy makers instructing them because a court has interpreted it in a particular way in a similar context. That meaning may be reflected in the Explanatory Memorandum or Second Reading Speech delivered in Parliament. It may be a meaning given for that word in a dictionary or it may not. It may be one meaning rather than another given in the dictionary or it may be none of them.
This is a case in which I have begun with the words of s 35(3) and interpreted them according to their strict literal meaning. Their literal meaning does not assist me in deciding how I should “pay due regard” to reasons given to me in support of the proposition that a hearing should be held in private or that documents or that evidence given before the Tribunal or matter in documents lodged with the Tribunal should be prohibited or restricted. Therefore, I have turned to the authorities.
The first of these is Re Australian/Eastern USA Shipping Conference – Report to the Minister[13] (Australian/Eastern) which considered s 123(1)(c)(ii) of the Trade Practices Act 1974.[14] The Trade Practices Tribunal accepted:
“… the submission of counsel for the Conference that “due regard” for the need for shipping services to be efficient, economical and adequate, means ‘regard which is adequate in all the circumstances, including, among those circumstances, the extent to which any greater regard is possible’.”[15]
[13] (1975) 8 ALR 353 per Woodward J, Walker and Johns, Members
[14] Section 123(1)(c) provides that the Governor-General may disallow a Conference agreement if, after consideration of a report by the Tribunal, he or she is satisfied that “… the agreement, or the manner in which it is being interpreted or applied by the parties, or the conduct of, or the provision of facilities by, the parties in relation to outwards cargo shipping to which the agreement relates does not have due regard to the need for services by way of overseas cargo shipping to be efficient, economical and adequate”.
[15] (1975) 8 ALR 353 at 357
The second is Maritime Services Board (NSW) v Liquor Administration Board,[16] in which Campbell J considered the meaning of s 99(3) of the Liquor Act 1982 (NSW). When making an order that the owner of licensed premises was to bear the cost of works to be carried out by the licensee, the Liquor Administration Board (LAB) was required to have “due regard to any agreement or covenant entered into by a person … in relation to the licensed premises”. The LAB did so in circumstances in which the lease stipulated that the lessee (which included the licensee) would, at its own expense, conform and comply with all statutory provisions and bye-laws and with any orders made under them.
[16] (1990) 21 NSWLR 180; 22 ALD 484 per Campbell J
Campbell J drew a distinction between the expression to “have regard to” and “have due regard to”. He referred to the passage from Australian/Eastern set out above and a passage to similar effect from Slinn v Nominal Defendant[17] (Slinn) before turning to the following passage from the judgment of Dixon CJ in Cavanagh v Nominal Defendant:[18]
“… But the word ‘due’ brings with it the circumstances of the case as the test of what inquiry and search will suffice … It is the word ‘due’ which connects the inquiry and search with the person injured where, as here, the claim is for bodily injury. You must look at the circumstances in which he or she was placed and, …, say whether in those circumstances enough was done by or on behalf of or in the interest of that person to warrant the description ‘due inquiry and search’.”[19]
[17] [1964] HCA 72; (1964) 112 CLR 334 at 339 per Barwick CJ
[18] [1958] HCA 57; (1958) 100 CLR 375
[19] [1958] HCA 57; (1958) 100 CLR 375 at 380
As Campbell J noted, no suggestion was made in Australian/Eastern that the words “due regard” meant “exclusive regard”.[20] He also noted, though, that “due regard’ means something more than “regard” before concluding in the case before him:
“ To my mind the word ‘due’ in s 99(3) directs the first defendant that the regard paid to the agreement or covenant must be adequate in all the circumstances of the case. I do not think, in its context and bearing in mind the purpose of the relevant part of the statute, that it requires that attention be paid only to the provisions of the agreement or covenant itself, thus, in a case such as the present one, permitting the apportionment to be determined solely by the terms of the agreement or covenant.
…
Section 99(3) not only requires that ‘due regard to any agreement or covenant’ should be had in determining the manner in which the first defendant’s [LAB’s] powers are to be exercised, but also in relation to the decision whether to exercise them or not. A covenant that the lessees pay for the work could, if the covenant construction is preferred, determine the issue as to the manner in which the power is to be exercised, but other discretionary considerations would necessarily be involved in the decision whether an order should be made or not. It seems to me that a construction which avoids a distinction between the 2 tasks referred to in s 99(3) is to be preferred.”[21]
[20] (1990) 21 NSWLR 180; 22 ALD 484 at 195; 491
[21] (1990) 21 NSWLR 180; 22 ALD 484 at 196-197; 491-492
Although undertaken in a context quite different from s 35(3) of the AAT Act, I have found his Honour’s analysis helpful in my consideration of that provision. His analysis and that of Dixon CJ in Cavanagh v Nominal Defendant and that of the Trade Practices Tribunal in Australian/Eastern lead me to conclude that there is a difference between my being required to have “regard” to the reasons I am given and to my being required to have “due regard” to them. If I am to have “due regard” to the reasons, the attention I give them must be substantial and adequate and I must not deal with them in a cursory way. I must do so in making two decisions. The first decision is whether I should exercise the power under s 35(3) at all. If I decided that I should, the second decision is directed to the parameters of the restrictions I should impose on the public nature of the hearing or the publication or disclosure of evidence or material contained in a document.
The authorities also underline that the regard that is regarded as substantial and adequate regard, and so as “due regard”, will be assessed by reference to all of the circumstances. Those circumstances are determined by the context in which the statutory provision is found and I think that s 35(3) does not lead to any different conclusion.
The context in which the power under s 35(3) is conferred is shaped by the requirement that the “… Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings before the Tribunal should be held in public and the evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties …”. What s 35(3) does not do is to explain why it is desirable. An understanding of the reason for its desirability is essential if I am to “pay due regard” to the reasons for making an order that limits the public nature of the proceedings.
The explanation is not found elsewhere in s 35 or in the AAT Act. It is found in the general law which requires any administrative body, including the Tribunal, to act according to notions of procedural fairness.[22] In relation to its actions towards the parties, this underpins s 39(1) of the AAT Act when it provides that, subject only to s 35 (and ss 36 and 36B which rarely apply[23]):
“… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”
[22] See, for example, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 83 ALD 545; 215 ALR 162; 79 ALJR 1009 at 354-55; 593-4; 211; 1045-1046 [207]-[208] per Haydon J
[23] They arise when the Commonwealth or a State Attorney-General has issued a public interest certificate protecting certain information from disclosure.
Procedural fairness is concerned with fairness to the parties in a particular case but, because the principles of procedural fairness have been developed over many years and over many cases, both administrative and civil, parties should be able to expect a consistent approach and so a fair process. That means a particular case should withstand scrutiny when its procedures are examined in isolation and when it is scrutinised against other cases. That does not mean that all will be in public or all will not. Principles provide for a consistent pattern rather than a single outcome. What it means is that the principles will have been applied consistently so that the reason for the variation can be seen and the place of the particular case can be seen in the overall pattern of cases.
To this point, there is no difference between a case heard by the Tribunal and a civil case heard by a court. After this, the difference becomes apparent. Civil cases are decided on the pleadings and on evidence called by the parties but the Tribunal’s task is to come to the correct or preferable decision. It is not limited to the cases put by the parties and, if those cases would not lead it to the correct or preferable decision, it is obliged not to accept either. This was explained by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[24]
“ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists …, that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by law ought to be taken into consideration’ must be ignored …”
[24] (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69
The Tribunal’s duty to reach the correct or preferable decision requires it to act fairly regarding the substantive outcome as well as fairly in the procedures it follows. This is not about a decision that is reasonable and fair between the parties unless Parliament has specified that as a criterion[25] but about a decision that is fair when viewed against all administrative decisions of that type. An example is found in taxation law. In Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd,[26] Lord Scarman expressed the administrative decision-maker’s duty to act fairly with regard to outcome. He was:
“… persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims.”[27]
[25] Many of the decisions that the Superannuation Complaints Tribunal is empowered to make are, for example, predicated on its view of whether the decision complained of was fair and reasonable in all the circumstances to the complainant and to certain others: see generally Superannuation (Resolution of Complaints) Act 1993, Part 6, Division 3.
[26] [1982] AC 617
[27] [1982] AC 617 at 651
So the Tribunal is required to act with fairness in relation both to process and to outcome. It is to be hoped that it will do so and that, if it should not, any failure will be identified when scrutinised by a court either on an appeal under
s 44 of the AAT Act or on judicial review under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903. Not every case will be scrutinised in that way even if a party thinks that the Tribunal has been in error. Considerations of costs will often deter even those who think that there has been an error in circumstances in which they would have reasonable prospects of succeeding. As valuable as those avenues are, they are not sufficient to ensure scrutiny of the Tribunal’s decision-making and decisions. Public scrutiny, or the constant possibility of it, on the other hand is always available and not subject to the financial resources of a particular party. Its place in providing general scrutiny of the Tribunal’s proceedings and decisions was explained by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs[28] when he said that public hearings are:
“… calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.”[29]
[28] (1979) 26 ALR 247; 2 ALD 33
[29] (1979) 26 ALR 247; 2 ALD 33 at 270; 54
The same principle applies to most court proceedings despite the different roles carried out by courts and the Tribunal. In allowing public scrutiny of the process, a proceeding heard in public:
“… removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial. This was powerfully expressed in the great aphorism that, ‘It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.”[30]
[30] Hamlyn Lectures (38th series) The Fabric of English Justice at 22 quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 685
There are, therefore, compelling reasons underpinning Parliament’s requirement that the Tribunal take the principle as the basis of its consideration. At the same time, Parliament has recognised that there may be compelling reasons for restricting the extent to which the public may scrutinise the Tribunal’s proceedings. It seems to me that the reasons that underpin Parliament’s requirement for publicity and openness also underpin its recognition that there may be reasons for its limiting the publicity and the openness in which a hearing would otherwise be conducted and documents would be available.
The reasons are twofold. In a reversal of its normal expression, the first is that the justice should not only be seen to be done but be done. Considerations of justice arise in relation to an individual involved in a proceeding before the Tribunal as well as in relation to the more general notions of fairness that are directed to ensuring that decisions are made consistently and without favour. On occasion, the two are not entirely consistent. The second relates to the fact that the Tribunal is engaged in reviewing the exercise of administrative power. While the Tribunal will be engaged in reviewing the exercise of the power to make a particular decision, that decision is made in a much wider context. That wider context may simply be other decisions of the same type as that under review. In some cases, though, it may be a much wider context that requires regard to be had to other administrative decisions that have been made or may be made and that may be prejudiced by the public nature of a hearing or the public availability of the evidence and documents lodged in the Tribunal.
These two reasons become apparent in past cases that have considered
s 35(3) of the AAT Act or similar provisions. There are, for example, cases in which an order has been made restricting access to certain information on the basis that its disclosure would lead to the Tribunal’s no longer being given certain types of information that an administrative body requires for its on-going decision-making and that information was necessary to secure effective administration. That was a relevant factor in Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority[31] and in Re Nolan and Minister for Immigration and Ethnic Affairs.[32] Re Nolan also took into account that disclosure would be contrary to the public interest in the effective administration of the prison system.[33] The case of Re Pochi also provides an example. It was a case in which Brennan J decided:
“… the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all … Accordingly, the applicant and the public (but not the applicant’s counsel and solicitors) were excluded while Detective Jenkins gave some of his evidence. …”[34]
[31] (1999) 58 ALD 581 at 590
[32] (1986) 9 ALD 407
[33] (1986) 9 ALD 407 at 414
[34] (1979) 26 ALR 247; 2 ALD 33 at 274; 57
Powers not so dissimilar to those in s 35 have also been used to protect the identity of a party from public revelation. Section 50 of the Federal Court of Australia Act 1976 (FCA Act) gives the Federal Court power to make such suppression order “… as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.” The order has to be “necessary” to achieve the stated purpose and not merely “desirable.” In Minister for Immigration and Multicultural and Indigenous Affairs v X,[35] the Full Court of the Federal Court suppressed publication of X’s name in circumstances in which he had been refused a visa on the basis that he had not met the criterion that he not be a person who had a disease or condition likely to require healthcare or community services. X, who was HIV positive, had a surname that was unusual in Australia and would be readily identifiable at least in the expatriate community of his fellow nationals. Stigma would attach to his wife and children. Heerey and Weinberg JJ said:
“[21] Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice. The importance of justice being done in public has been affirmed time and again … Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often more hurtful and embarrassing the proceeding the more newsworthy the report of it.
[22] But there is a feature of the present case which takes it out of the ordinary run. There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma. An analogy might be found in the prohibition of the names of blackmail victims. If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.”[36]
[35] (2005) 147 FCR 243
[36] (2005) 147 FCR 243 at 246
Section 50 has also been used to make orders restricting publication or disclosure of the names of the applicants or of the company of which they were senior managers when the Australian Prudential Regulation Authority (APRA) disqualified them under s 25A of the Insurance Act 1973.[37] The Full Court accepted that the company enjoyed an excellent reputation and standing in the insurance industry. Were the disqualification of the applicants to become known in the industry, the company’s reputation and standing would both be damaged. Both are important factors in determining a company’s credit rating in the insurance industry. At first instance, Lindgren J had decided that the question was whether APRA had purported to disqualify the applicants in circumstances in which it did not have the power to do so. If APRA was found to have acted without power, the applicants and the company would suffer irreparable damage that could not be remedied by the quashing, on the appeal, of the decision.
[37] Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
The Full Court accepted that “… there would be a real prejudice to the administration of justice if the appellants succeeded in their appeals and established that APRA has no power to disqualify X and Y, but suffered irreparable damage from the publication of the Reasons and the disclosure of the adverse findings” of APRA.[38] It referred to principles established in Australian Broadcasting Commission v Parish and Ors:[39]
“[14] The public interest, that the Court should effectively endeavour to achieve in considering the exercise of powers under s 50, is the object of doing justice between the parties. That is the function that the Court is appointed to discharge. Where refusal to make an order might well undermine or defeat the purpose of achieving justice between the parties, and disappoint the public interest in having the Court deal responsibly with the affairs of citizens, it may be appropriate to make an order pursuant to s 50 – see Australian Broadcasting Commission v Parish & Ors (1980) 49 FLR 129 at 133.
[15] The Court must, however, take into account what s 50 does not explicitly state, but is the underlying assumption upon which it is based, namely, the principle of open justice. The importance of the principle of open justice is not in doubt. On the other hand, the possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed in the scales. The derogation from the principle that might be involved in making an order under s 50 may be very great, or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice – see Australian Broadcasting Commission v Parish & Ors at 136.”[40]
[38] Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222 at [16]
[39] (1980) 29 ALR 228
[40] [2005] FCAFC 222
In other cases, the Tribunal has made orders excluding access to material not only by the public but also by the applicant. Such a step is a grave one and not one taken lightly. That is all the more so because it effectively overrides a basic principle that a person is entitled at common law and under the AAT Act to be “… made aware of all relevant matters”[41] that are to be taken into account in determining the issues affecting him or her. It was a step taken in Re Pochi when Brennan J concluded that a party could only be excluded when:
“… an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’
In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball’s case …”[42]
[41] AAT Act, s 36(4)
[42] (1979) 26 ALR 247; 2 ALD 33 at 273; 56
The context in which the power is exercised: modification
Section 25(6)(a) of the AAT Act provides that, if an enactment provides for applications to be made to the Tribunal, that enactment may also include provisions adding to, excluding or modifying, among others, s 35. This Parliament has done in s 63(1) of the FOI Act. It provides:
“In proceedings under this Part [Part VI], the Tribunal shall make such order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:
(a)exempt matter contained in a document to which the proceedings relate; or
(b)information of the kind referred to in subsection 25(1).”
The reference in s 63(1)(b) to information of the kind referred to in s 25(1) is a reference to information as to the existence or non-existence of documents that would, if included in a document, cause that document to be exempt under ss 33, 33A or 37(1).
Section 63(1) is a mandatory provision. It requires the Tribunal to make the order it thinks necessary having regard to the “nature of the proceedings” but clearly sees that expression as encompassing more than the need to prohibit disclosure of the matter and information described in s 63(1)(a) and (b). If it were otherwise, there would have been no need to make particular reference to that matter and information. It seems to me that the reference to the “nature of the proceedings” requires me to have regard to what is involved in proceedings before the Tribunal under the FOI Act.
I have already referred to the general requirement that the Tribunal must hold a hearing when reviewing a decision. The task of review requires it to arrive at the correct or preferable decision. It must be correct in the sense that it accords with the law and in the sense that it is based on findings of fact that are made after a consideration of relevant and probative evidence or material available to it. If more than one decision meets those criteria, the Tribunal must select the decision that is the preferable decision. The concept of a preferable decision does not arise when reviewing a decision that a document is exempt under the FOI Act. The document is either exempt or it is not and the Tribunal has no discretion in the matter.[43]
[43] Equally, it has no discretion to grant access to an exempt document: FOI Act, s 58(2).
Each of the exemptions set out in Part IV is based on there being an outcome of the disclosure. If, for example, disclosure of the document under the Act would involve the unreasonable disclosure of personal information about any person, the document is exempt.[44] That is an example of an exemption based on the nature of the information that would be disclosed. Section 37(1)(b) is in similar terms when it provides that:
[44] FOI Act, s 41(1)
“A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) …
(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information; or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c)…”
Sections 37(1)(a) and (c) are drafted in terms of the outcome of disclosure under the Act or what could reasonably be expected to be its outcome. They provide:
“A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(b)… or
(c)endanger the life or physical safety of any person.”
As the agency, in this case the Department, has the onus of establishing that the decision it gave was justified,[45] I would expect that it would lead evidence that is directed to establishing that the claim for exemption is justified. In doing so, it is likely that it will need to lead evidence or other material that may itself disclose information of the sort that is claimed to be exempt. Section 63(2)(b) recognises that this may well be so for it provides that:
“the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in subsection (1).”
[45] FOI Act, s 61(1)
It is important to note that s 63(2)(b) refers to matter or information “of a kind” referred to in s 63(1). That section expressly recognises that the Tribunal may need to receive evidence or hear argument that would disclose not only the exempt matter contained in a document to which the proceedings relate and information of the kind referred to in s 25(1) but matter or information of that “kind”.
The word “kind” refers to matter or information that is of the “… group, class, sort, … type … nature, [or] character …” of that referred to in s 63(1). In Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy,[46] I considered the expression “of a kind” where it appears in s 63(2)(a) requiring the Tribunal not to include in its decisions or reasons any matter or information of a kind referred to in s 63(1). After referring to other authorities in which it has been considered in the context of laws relating to taxation, trade practices and customs and excise, I concluded:
“… The obligation on the Tribunal not to refer in its decision or reasons for decision to any ‘matter or information of a kind referred to in subsection (1)’ is an obligation that extends beyond referring to the exempt matter contained in a document to which the proceedings relate and so to the matter claimed to be exempt in the document to which the applicant has sought access. It extends to information or matter that is ‘of the same sort’[47] as that in the document for which exemption is claimed and so to information or matter that paraphrases or summarises it. Except in situations in which s 25(1) applies, the obligation would not seem to extend to a mere reference to the document in which the exempt matter appears. I have considered whether it extends to matter that would be exempt from disclosure under the FOI Act if a request for it had been made. This would engage the parties and the Tribunal in a hypothetical exercise in relation to each piece of evidence put forward and considered. I do not think that the obligation extends that far. The reference in s 63(2) to matter or information of a kind referred to in s 63(1) focuses attention not only on the exempt matter contained in a document but to a document ‘to which the proceedings relate’. Only a document for which exemption has been claimed as a result of a particular applicant’s request will come within that description.”[48]
This analysis is equally applicable to s 63(2)(b) as to s 63(2)(a) and I adopt it.
CONSIDERATION
[46] [2007] AATA 2100; (2007) 47 AAR 76 at [53]-[55]; 89-90
[47] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[48] [2007] AATA 2100; (2007) 47 AAR 76 at [55]; 90
A document to which the proceedings relate
In view of the reference in s 63(1)(a), I must first identify the documents “to which the proceedings relate”. In this case, Ms Galanos is not seeking access to documents claimed to be exempt under s 37(2)(b) and only to those claimed to be exempt under s 41(1). This is clear from the covering letter written by her solicitors and lodged with her application. They are the documents to which the proceedings relate.
The scope of s 63(1) of the FOI Act
That does not mean that s 63(1)(a) of the FOI Act is to be read as restricting the Tribunal’s obligation to avoid disclosure to the applicant of exempt matter in those documents to matter that is exempt under s 41(1). Section 4(1) defines “exempt matter” to mean “… matter the inclusion of which in a document causes the document to be an exempt document.” It does not provide that it is matter that is claimed to be exempt in the proceedings. Section 63(1)(a) requires identification of the “document to which the proceedings relate” and then imposes an obligation on the Tribunal to avoid disclosure of exempt matter in that document.
On behalf of the Department, Mr Maat submitted that the material over which the order is sought would, if disclosed, reveal the contents of the documents in issue in the proceedings. I have not seen the documents but they are identified in the Schedule of documents lodged on behalf of the Department. That Schedule identifies three documents. They are also described in [11]-[14] of the Affidavit of Joseph Petyanszki sworn and lodged on 27 October 2010. Two are lists of visa applicants. One claims exemption for those visa applicants who obtained a work reference from the Department.[49] The other lists the same information together with the period during which the visa applicants were allegedly employed at the Axilleon Caffe Cake Shop.[50] The third is a Cover Sheet entitled “Investigation Section Victoria – Allegation Assessment”. Exemption is claimed for the person named as the Informant and those listed under “Other people involved”.[51]
[49] Folio 2
[50] Folio 4, 5 and 6
[51] Folios 26-28
On the basis of this information about the documents – and have no other as I have not seen them – I am satisfied that the information in the confidential affidavit of Mr Petyanszki would not disclose the information or matter that is claimed to be exempt matter in the three documents to which the proceedings relate. Therefore, I am not obliged by s 63(1) of the FOI Act to make an order under s 35(2) of the AAT Act restricting its disclosure.
Submissions relating to reasons for and against restriction on access to documents
Mr Maat submitted that I should make an order restricting access to
Mr Petyanszki’s confidential affidavit on the basis that it contains information that, if disclosed, will negatively affect the Department’s ongoing investigations and law enforcement activities. The confidential affidavit sets out more fully the matters referred to in Mr Petyanszki’s open affidavit. Mr Maat submitted that, if the parties under investigation were to become aware of the information in the affidavit, the investigation would be prejudiced. They would be able to counter the allegations made against them.
On behalf of Ms Galanos, Mr Jholl submitted that she should be allowed to view and be a party to any proceeding involving the documents. There could be no confidentiality in the references for Ms Galanos was said to have drafted them. She should be given access to documents so that she may respond to any allegations of criminal or fraudulent activity. Denying her access is contrary to the public interest.
Consideration of the submissions in light of s 35(3)
At the basis of my consideration is the principle that it is desirable that publication or disclosure of the matter in Mr Petyanszki’s confidential affidavit should be disclosed to Ms Galanos. It is desirable so that she can know the evidence that is given to support the claim of exemption made by the Department in refusing her access to the documents in issue and can have an opportunity to meet it. Desirability does not go beyond that. An application for an order under s 35(2) is not an occasion to decide whether Ms Galanos should be given access to documents so that she can respond to any allegations made against her. The occasion will not arise on the substantive hearing for the issue will be whether disclosure of the documents under the FOI Act would be an unreasonable disclosure of personal information within the meaning of s 41.
The confidential affidavit sets out more fully the matters referred to in Mr Petyanszki’s open affidavit. Mr Maat submitted that, if the parties under investigation were to become aware of the information in the affidavit, the investigation would be prejudiced. They would be able to counter the allegations made against them. I accept that the matters addressed in the confidential affidavit are, on their face, matters of that sort.
Mr Maat’s submissions raise for consideration public interest issues of the sort that arise when a claim is made that a document is exempt from disclosure on a claim of public interest immunity. He has not made the claim but principles of the sort that underpin such a claim have relevance in the context of a claim that a document should not be made available to another party to the proceeding.
A broad description of public interest immunity was given by Gibbs ACJ in Sankey v Whitlam:[52]
“… [T]here are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words … the law recognises that there is a class of documents which in the public interest should be immune from disclosure. …”[53]
That protection, however, is not absolute and not enduring for all time. His Honour continued:
“… The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made. Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf. Conway v. Rimmer[[54]]).”
[52] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11
[53] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11 at [38]; 39; 526; 22
[54] (1968) AC 910 at 953
As Maxwell P said in Royal Women’s Hospital v Medical Practitioners Board of Victoria:[55]
“… what determines whether a document (or class of documents) attracts PII [public interest immunity] is the character of the information contained in the document(s), not the character of the agency which creates, or holds, the document(s).”[56]
[55] [2006] VSCA 85; (2006) 15 VR 22
[56] [2006] VSCA 85; (2006) 15 VR 22 at [49]; 34
Whether a document attracts public interest immunity, I would respectfully add, may also be influenced by the nature of the proceedings in which its disclosure is sought. This was referred to by Stephen J in Sankey v Whitlam when he referred to the approach of Lord Reid in Rogers v Home Secretary:[57]
“… when, in weighing the competing claims of public interest that the course of justice should not be impeded than might otherwise have been the case because the documents the production of which were being resisted ‘only came into existence because the applicant is asking for a privilege and is submitting his character and reputation to scrutiny. The documents are not used to deprive him of any legal right.’”[58]
[57] [1973] AC 388
[58] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11 at [35]; 61; 544; 30
His Honour contrasted this with the long standing exception to the general rule that Crown privilege, or what is called public interest immunity in Sankey v Whitlam, is properly applicable to conceal the identity of police informers. That exception will arise if disclosure is necessary to establish the truth of the case. Stephen J approved the statement of principle made by Lord Simon of Glaisdale in D. v National Society for the Prevention of Cruelty to Children:[59]
“ The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial.”[60]
[59] [1978] AC 171 approved at [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11 at [36]; 62; 544-545; 30
[60] [1978] AC 171 at 232
These authorities are all cases decided in courts but public interest immunity is an equally valid claim to make in the Tribunal. Whether made in a court or in an administrative tribunal such as this, the outcome of a valid claim is:
“… to relieve the holder from the usual obligation to produce relevant documents, whether on discovery or in answer to a subpoena – and in administrative investigations such as the present, where coercive powers are conferred on a statutory authority to obtain information in the public interest.”[61]
[61] [2006] VSCA 85; (2006) 15 VR 22 at [40]; 32 per Maxwell P
In this case, Mr Maat has drawn on the characterisation of the contents of the confidential affidavit not to resist its production to the Tribunal but to keep it from Ms Galanos and her legal advisers. If successful, the ability of the Tribunal to reach the correct decision may be hindered by the fact that Ms Galanos will not have access to it and may not be able to address the issues it raises. I say “may” for, whether she is hindered in fact, is a matter to which I return below. The Tribunal itself will not be denied access to the document and will be able to test its contents.
In considering the reasons put forward for my making a confidentiality order under s 35(2) and the public interest issues they raise, I have kept in mind the issues that I must decide. Proceedings under the FOI Act are not proceedings in which a person’s guilt or innocence on a criminal charge is to be determined. They are not proceedings in which a person can attempt to vindicate his or her actions or to restore his or her reputation. In general terms, his or her reasons for seeking access to documents and so in making an application for review of a decision refusing access are irrelevant. That is the effect of s 11(2) of the FOI Act. Except in so far as the documents may contain any personal matter relating to her – and they do not – what is an unreasonable disclosure of personal information will be determined by reference to s 41(1) alone. For the reasons I have given in Re Callejo and Department of Immigration and Citizenship,[62] that will be determined on objective grounds.
[62] [2010] AATA 244; (2010) 51 AAR 308 at [98]-[102]; 344-345
This is the background against which the confidential affidavit has come into being. It has come into being as part of the Department’s attempts to meet its burden of proof under the FOI Act to establish that it properly denied access to Ms Galanos. It did not come into being in order to deny her a right of access. She has no right of access if the document is an exempt document. That is the effect of s 11(1)(a) of the FOI Act. The confidential affidavit will be used as part of the evidentiary material to determine if she has a right at all.
I have already accepted that disclosure of the matters addressed in the affidavit are of the sort that would be likely to prejudice an ongoing investigation. There is a public interest in ensuring that it is not prejudiced. When I consider that prejudice from the basis that it is desirable that all hearings are held in public and the documents and the like are available to the public and the parties, I conclude that disclosure of the contents of the confidential affidavit of Mr Petyanszki should be restricted to the respondent and its officers and legal representatives, members and staff of the Tribunal and staff of Auscript. The prejudice that may be caused to the system of administration of justice by its disclosure outweighs any disadvantage that Ms Galanos may suffer from being denied access to it. I say “may suffer” for she already knows that there is an investigation. That would seem to be the information of significance when challenging the Department’s decision to deny access to the three documents on the basis of their disclosure involving an unreasonable disclosure of personal information under s 41.
For the reasons I have given, I order that publication or disclosure of the confidential affidavit of Mr Joseph Petyanszki sworn on 27 October 2010 be restricted to the respondent and its officers and legal representatives, to members and staff of the Tribunal and to staff of Auscript.
I certify that the sixty six paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Date of Hearing 3 December 2010
Date of Decision 14 December 2010
Solicitor for the Applicant Mr Tej Jholl
Erskine Rodan & Associates
Solicitor for the Respondent Mr Kasper Maat
Australian Government Solicitor
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