Law Society of the ACT & Treasury Directorate and NRMA Insurance
[2013] ACAT 36
•21 May 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LAW SOCIETY OF THE ACT & TREASURY DIRECTORATE
AND NRMA INSURANCE (Appeal) [2013] ACAT 36
AA 12/12
Catchwords: ADMINISTRATIVE REVIEW – APPEAL – review of part of the Original Tribunal decision – exempt documents under section 43 Freedom of Information Act 1989 (FOI Act): documents relating to business affairs etc – whether the Original Tribunal decision involved an error of fact or law – interpretation of section 43 FOI Act using the implied constitutional guarantee of freedom of political communication and section 17 Human Rights Act 2004 concerning the right of citizens to take part in public affairs – whether the appellant has a standing under the Human Rights Act – whether disclosure to a compulsory third party insurance regulator under the Road Transport (Third-Party Insurance) Act 2008 diminishes or removes the commercial value of information – distinguishing between the interpretation of section 43 FOI Act and the exercise of discretion under that provision
List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT) , ss 79 and 82(b), and Part 8
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Commonwealth of Australia Constitution Act (Cth), s 122
Freedom of Information Act 1989 (ACT), ss 2, 10, 27, 43, 71 and 74
Human Rights Act 2004 (ACT), ss 17, 28 and 30
Legislation Act 2001 (ACT), ss 120 and 139
Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 46 and 46A
List of Regulations: ACT Civil and Administrative Tribunal Rules 2009 (No. 2) (ACT), Part 7
List of Cases: Allatt & ACT Government Health Directorate [2012] ACAT 67
Allesch v Maunz [2000] 203 CLR 172
APLA Ltd v Legal Services Commissioner (NSW) [2005] 224 CLR 322
Attorney-General’s Department v Cockcroft [1986] 10 FCR 180Australian Capital Television Pty Ltd v Commonwealth [1992] 177 CLR 106
Australian Coal & Shale Employees Federation v Commonwealth [1953] 94 CLR 621
B and Brisbane North Regional Health Authority [1994] 1 QAR 279; (1994) 1 QAR 279
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Citizens United v. Federal Election Commission 558 U.S. 310 (2010)
Colakovski v Australian Telecommunications Corporation [1991] 100 ALR 111
Coleman v Power [2004] 220 CLR 1; [2004] HCA 39
Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA [2012] ACAT 13
Director of Housing v Sudi [2011] VSCA 266
House v King [1936] 55 CLR 499
In the matter of an application for bail by Islam [2010] ACTSC 147
Kruger v Commonwealth [1997] 190 CLR 1Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lourandos and Yiannokopoulos & ACT Planning and Land Authority and Ors [2011] ACAT 25
Magee v Delaney [2012] VSC 407
Maher and Attorney General’s Department [1986] AATA 16
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Noone v Operation Smile (Australia) Inc [2012] VSCA 91Pesi v Commissioner for Social Housing in the ACT
[2012] ACAT 61
R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22
R v Momcilovic (2010) 25 VR 436; (2010) 265 ALR 751;
Re Adams and Tax Agents’ Board [1976] 1 ALD 251
Re Cannon and Australian Quality Egg Farms Ltd[1994]
1 QAR 491Re Chandra and Minister for Immigration and Ethnic Affairs [1984] 6 ALN N257
Re Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community and Health (1992) 108 ALR 163
Slaveski v Smith & Anor [2012] VSCA 25
Sunol v Collier (No. 2) [2012] NSWCA 44The Medical Practitioner and the ACT Medical Board [2010] ACAT 63
List of Texts/
Articles: W Bateman and J Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’, (2012) 36 Melbourne University Law Review 1
G Carney, The Constitutional Systems of the Australian States and Territories (2006)
M. Castan and S. Joseph, Federal Constitutional Law: A Contemporary View (3rd ed, 2010)
J. Clarke, P. Keyzer and J. Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (9th ed, 2013)
S Colbran, P Spender, S Jackson, R Douglas, Civil Procedure: Commentary and Materials (5th ed, 2012)
P Hanks, F Gordon, G Hill, Constitutional Law in Australia, (3rd ed, 2012)
Appeal Tribunal: Professor P. Spender – Presidential Member
Date of Orders: 21 May 2013
Date of Reasons for Decision: 21 May 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 12/12
BETWEEN:
THE LAW SOCIETY OF THE ACT
Appellant
AND:
THE TREASURY DIRECTORATE
Respondent
AND:
NRMA INSURANCE
Party Joined
APPEAL TRIBUNAL: Professor P. Spender – Presidential Member
DATE:21 May 2013
ORDER
1.The appeal is dismissed.
………………………………..
Professor P. Spender
Presidential Member
REASONS FOR DECISION
INTRODUCTION
The reasons below explain why the appeal has been dismissed. Overall, the appellant did not establish that the Tribunal at first instance (the Original Tribunal) had made errors of fact or law that were sufficient to set aside its decision on appeal. In these proceedings, the parties raised important and complex issues for the Appeal Tribunal’s consideration, particularly those concerning the operation of the implied constitutional guarantee of freedom of political communication and the Human Rights Act 2004 (the Human Rights Act). The submissions made by the parties on these issues have been set out in detail below and the Appeal Tribunal has given consideration to them. Ultimately however, even after due consideration was given to the grounds of appeal, including these issues, the Appeal Tribunal concluded that appellant did not demonstrate the requisite error necessary to overturn the decision of the Original Tribunal.
The reasons below will proceed as follows. Firstly, the background to the decision at first instance is explained and the grounds of appeal are specified. Aspects of the Original Tribunal’s reasons for decision are then extracted. The relevant legislative and constitutional provisions that apply to the appeal are also extracted and the documents that formed the subject matter of the appeal are identified. Thereafter the parties’ submissions on the appeal are recounted, followed by the Appeal Tribunal’s consideration of those submissions.
BACKGROUND
In November 2010 the ACT Government announced proposed changes to compulsory third party motor vehicle insurance (CTP or third party insurance) in the ACT through amendments to the Road Transport (Third-Party Insurance) Act 2008 (the Road Transport Act). The ACT government circulated an exposure draft of a bill – the Road Transport (Third-Party Insurance) Amendment Bill 2011 (the Road Transport Bill) – for public consultation. Following an exchange of correspondence between the appellant and respondent regarding the exposure draft, on 30 November 2010 the appellant wrote to the respondent and made a request under the Freedom of Information Act 1989 (the FOI Act) for information to enable the appellant to respond to the exposure draft. [1]
[1] Appeal Book, document 1, T3 at page 26
Between 7 December 2010 and August 2011, the respondent considered the appellant’s request for the documents. A determination was made on 4 January 2011 to disclose some documents sought and withhold disclosure of other documents. The appellant applied for internal review with respect to the documents that had not been disclosed. Some further documents were disclosed but the documents which form the subject matter of this appeal (the subject documents) were not released. [2]
[2] Appeal Book, document 2, ST 1 at pages 1 - 5
After the internal review, ten documents remained undisclosed that the respondent claimed were exempt in whole or in part pursuant to section 43 of the FOI Act. In deciding that those documents were exempt, the Treasury was guided by the views of NRMA Insurance (hereafter referred to as NRMA or the party joined). NRMA is the sole provider of third party insurance in the ACT and was involved in the provision of the documents to the respondent. NRMA was joined as a party to the matter before the Original Tribunal.
NRMA claimed that the documents concern its business and commercial affairs and their disclosure would or could reasonably be expected to unreasonably affect NRMA adversely, in respect of its lawful business affairs in the ACT. The respondent accepted NRMA’s contentions and determined that the exemptions provided by sections 43(l)(b) and 43(l)(c) of the FOI Act applied, stating that the documents in issue would disclose information of commercial value to NRMA, which could reasonably be expected to be destroyed or diminished if the information were disclosed.[3]
[3] Respondent’s Submissions dated 15 June 2012 at [8]
On 12 May 2011, the appellant lodged an application in the Tribunal in matter AT11/47. It challenged the respondent’s decision that certain documents should not be disclosed. It contended that the exemption provided by section 43 of the FOI Act should not apply to the documents.
On 9 March 2012, the Original Tribunal handed down a decision in relation to the documents that were at that stage in contention (the Original Decision). The Original Decision set aside the respondent’s decision in relation to four of the documents – Documents 4, 5, 6 and 7 – subject to meeting the requirements of section 27 of the FOI Act and varied the decision under review in relation to one document – Document 8 – which was ordered to be released except for that part of the document that contains the details of the ‘Claim Payments’. However, the Original Tribunal held at Order 1 of the Original Decision that section 43(1) of the FOI Act applied to five documents – Documents 1, 2, 3, 9 and 10 – and confirmed the respondent’s decision not to disclose those documents. [4]
[4] Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA Insurance [2012] ACAT 13 at [38] - [40] and [48], [49]
On 5 April 2012, the appellant filed an application to appeal the decision of the Original Tribunal and at a directions hearing held on 28 April 2012 the Appeal Tribunal ordered that the appeal would proceed by way of review of Order 1 of the Original Decision. Therefore, the appeal proceeded as a review of part of the Original Decision pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
During the appeal, the Appeal Tribunal considered the following material:
· an appeal book which consisted of:
-the Tribunal documents and supplementary Tribunal documents for matter AT 11/47;
-the Original Decision dated 9 March 2012;
-the transcript of hearing before the Original Tribunal dated 2 December 2011; and
-the statement of Mr Rivett of NRMA dated 7 September 2011;
· the subject documents i.e. Documents 1, 2, 3, 9 and 10 (confidentiality orders regarding these documents were made on 16 May 2012 pursuant to section 39 of the ACAT Act);
· written submissions provided by the appellant, the respondent and the party joined dated 28 May 2012, 15 June 2012 and 19 June 2012 respectively; and
· oral argument made during the hearing dated 27 July 2012.
At the hearing of the appeal the appellant was represented by Mr Erskine of Senior Counsel, Ms Eastman of Senior Counsel appeared for the respondent and the party joined was represented by Mr Robinson of Senior Counsel.
THE GROUNDS OF APPEAL
The appellant’s submissions dated 28 May 2012, as expanded by oral argument made by Mr Erskine during the hearing, identified the grounds of appeal as follows:
(1) the Original Tribunal failed to adopt a proper interpretation of section 43 of the FOI Act by taking into account the implied constitutional guarantee of freedom of political communication (the implied freedom of political communication or the implied guarantee);
(2) the Original Tribunal should have interpreted section 43 of the FOI Act by reference to section 17 of the Human Rights Act, in particular section 17(a) of the Human Rights Act, which confers a right on citizens to have the opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives;
(3) the information is at risk of being publicly disclosed under section 46 of the Road Transport Act, therefore the Tribunal must be positively satisfied that this risk of disclosure has not diminished or removed the commercial value of the information pursuant to section 43 of the FOI Act.
These grounds of appeal shall be referred to hereunder as Grounds 1, 2 and 3 respectively.
THE ORIGINAL TRIBUNAL’S REASONS FOR DECISION
The Original Tribunal made the following comments in the Original Decision in relation to Grounds 1 and 2.
6 In its written contentions the Society asserted that the government’s proposals to introduce significant changes to TPI laws were a major political issue in the ACT. Relying on Lange v ABC (Lange) [1997] HCA 25, it contended that section 43 of the FOI Act cannot be interpreted so as to preclude release of information contrary to the implied constitutional guarantee of freedom of political expression. Thus the documents did not fall into the category of documents exempt under section 43. At the hearing before the Tribunal, the Society did not persist with the constitutional issue.
7. However the Society did argue that the amendments to the law relating to third party insurance which removed certain common law rights were of such public importance that this should be taken into account when considering the release of the contested information. It pointed to s17 of the Human Rights Act 2004 which grants to every citizen the right to take part in the conduct of public affairs directly or through freely chosen representatives. This provision is similar to the constitutional guarantee set out in Lange.
8 Mr. Erskine for the Society also said that Treasury and NRMA must positively satisfy the Tribunal that the contested information had been received in confidence which was required to be maintained.
25 The Tribunal accepts the argument presented by Treasury that section 17 of the Human Rights Act 2004 does not apply to an artificial entity like the Society. It also agrees that confidentiality is not a requirement of section 43 of the FOI Act.
In relation to Ground 3, which dealt with section 46 of the Road Transport Act, the Original Tribunal stated as follows:
9 Additionally, the Society drew attention to section 46 of the [Road Transport] Act which requires a licensed insurer (such as NRMA) to “tell the CTP regulator the profit margin on which each CTP premium was charged by the licensed insurer is based and the actuarial basis for working out that profit margin”. The CTP regulator must assess this information and report to the Legislative Assembly on its assessment. Information required to be disclosed under the RT Act cannot be exempt under the FOI Act (section 13). It said that this material was similar to the contested information and would thus be in the public domain. It followed that release of the information by Treasury would not diminish its commercial value because it had already been diminished by its release under section 46.
On this point the Original Tribunal accepted the evidence of Mr Rivett in relation to each of the documents are subject to appeal that is, Documents 1, 2, 3, 9, 10, but the Senior Member also found that:
the information is more extensive than that which the NRMA is obliged to provide under section 46 of the [Road Transport] Act and much of it predates that obligation.[5]
THE LEGAL FRAMEWORK
[5] Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA Insurance [2012] ACAT 13 at [38]
Part 8 of the ACAT Act and Part 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) (the ACAT Rules) regulate the conduct of appeals in the Tribunal.
Section 79 of the ACAT Act states:
79 (1) This section applies if—
(a) the tribunal has decided an application (the original application);
and(b) the original application was not an appeal from a decision by the tribunal.
…
(3)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
As stated above, the Appeal Tribunal dealt with the appeal as a review of part of the original decision i.e. Order 1 of the decision of the Original Tribunal made on 9 March 2012. This was pursuant to section 82 of the ACAT Act, as follows:
82 Handling appeals
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the tribunal
During the hearing of the appeal, the Appeal Tribunal ruled that the conduct of an appeal by way of review in this case would not permit the adducing of further evidence and therefore ruled that evidence proffered by the party joined would not be received by the Appeal Tribunal.
In this jurisdiction an appellant does not have standing to an appeal as of right and is required by section 79(3) of the ACAT Act to identify a question of fact or law.[6]
[6] Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 at [36]
Therefore, a question of fact or law must be identified in the grounds of appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions.[7] The Appeal Tribunal stated this proposition in Chakravarty & Commissioner for ACT Revenue[8] (Chakravarty) and, in doing so, confirmed the earlier decision of The Medical Practitioner and the ACT Medical Board[9] where a differently constituted Appeal Tribunal stated that the role of the Appeal Tribunal is limited to addressing errors in the original decision.[10]
[7] Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 at [39]
[8] [2013] ACAT 11
[9] [2010] ACAT 63
[10] [2010] ACAT 63 at [31]
In particular, an appellant cannot merely request the re-exercise of discretion. The Appeal Tribunal in Chakravarty described the nature of its jurisdiction in relation to discretionary decisions as follows:[11]
… it is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong.[12] It is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached.[13]
[11] Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 at [42]-[43]
[12] Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621, at 627
[13] House v King (1936) 55 CLR 499 cited in Pesi v Commissioner for Social Housing in the ACT
[2012] ACAT 61.
In this extract, the Appeal Tribunal in Chakravarty relied upon Australian Coal & Shale Employees Federation v Commonwealth (Australian Coal and Shale Employees).[14]In that case, Kitto J stated as follows:
the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King (1936) 55 CLR 499, at pp 504, 505.[15]
THE FREEDOM OF INFORMATION ACT
[14] (1953) 94 CLR 621
[15] (1953) 94 CLR 621 at 627
The objects of the FOI Act are set out in section 2 as follows:
2Object
(1)The object of this Act is to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory by—
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2)The provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and to ensure that discretions conferred by this Act are exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
Section 43 of the FOI Act is the provision that is relied upon by the respondent to argue that the documents are exempt from disclosure. It states as follows:
43 Documents relating to business affairs etc
(1)A document is an exempt document if its disclosure under this Act would disclose—
(a)trade secrets; or
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information—
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Territory or an agency for the purpose of the administration of a law or the administration of matters administered by an agency.
Section 10 of the FOI Act creates a legally enforceable right to obtain access to certain documents in accordance with that Act. This legally enforceable right is supported by an onus upon the agency or Ministers to whom a request has been made to establish that the decision in respect of the request was justified. This provision states as follows:
71Onus
In proceedings under this part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the ACAT should give a decision adverse to the applicant.
Moreover the FOI Act allows the Tribunal to require that an exempt document be produced for inspection by members of ACAT in certain circumstances.
74Production of exempt documents
(1)If the ACAT is not satisfied, by evidence on affidavit or otherwise, that the document is an exempt document it may require the document to be produced for inspection by members of the ACAT.
HUMAN RIGHTS ACT
The Human Rights Act is also relevant to the appeal. The appellant relied upon the right of citizens to take part in the conduct of public affairs in section 17. The interpretive obligation in section 30 of the same Act requires the Tribunal to interpret territory law in a way that is compatible with human rights insofar as it is possible to do so consistently with its purpose. Section 28 of the Human Rights Act states that human rights may be subject to reasonable limits that can be demonstrably justified. Generally speaking, provisions equivalent to section 28 are referred to ‘justification’ or ‘proportionality’ provisions.
The relevant provisions of the Human Rights Act state as follows:
17Taking part in public life
Every citizen has the right, and is to have the opportunity, to—
(a)take part in the conduct of public affairs, directly or through freely chosen representatives; and
(b)vote and be elected at periodic elections, that guarantee the free expression of the will of the electors; and
(c)have access, on general terms of equality, for appointment to the public service and public office.
28Human rights may be limited
(1)Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a)the nature of the right affected;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
LEGISLATION ACT
Section 120 of the Legislation Act 2001 (the Legislation Act) sets out a further interpretive obligation that is relied upon by the appellant to support its argument that section 43 of the FOI Act must be interpreted consistently with the implied freedom of political communication. This provision states:
120Act to be interpreted not to exceed legislative powers of Assembly
(1)An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
(2)Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly—
(a)the provision is valid to the extent to which it does not exceed power; and
(b)the remainder of the Act is not affected.
(3)Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision’s application to other matters is not affected.
(4)This section is in addition to any provision of the Act itself. ...
(5)This section is a determinative provision.
ROAD TRANSPORT (THIRD-PARTY INSURANCE) ACT
Sections 46 and 46A of the Road Transport Act are relied upon by the appellant to argue that the subject documents are at risk of being disclosed and, therefore cannot retain the requisite commercial value to satisfy section 43 of the FOI Act. Section 46 is set out below but section 46A is not reproduced because it did not form part of the first instance deliberation. This is discussed below.
46CTP regulator to report on licensed insurer’s profit margins
(1)A licensed insurer must tell the CTP regulator the profit margin on which each CTP premium charged by the licensed insurer is based and the actuarial basis for working out that profit margin.
(2)The CTP regulator must assess—
(a)the profit margin; and
(b)the actuarial basis on which the profit margin is worked out.
(3)The CTP regulator must present a report about the assessments annually to the Legislative Assembly.
Finally, section 122 of the Constitution of the Commonwealth of Australia regulates the government of the territories under the Australian federal constitutional framework. This provision is often referred to as the ‘Territories power’.
IDENTIFICATION OF THE DOCUMENTS
The subject documents are identified in the Original Decision at [27], [28], [29], [35] and [36]. For ease of reference, the Appeal Tribunal adopts the description of the documents set out in the respondent’s submissions dated 15 June 2012 as follows:
| Doc | Folio | Item | Date of document | Exemption relied on |
| 1 | 2-69 | Actuarial report (Taylor Fry Consulting Actuaries): Insurance Australia Ltd – Australian Capital Territory Compulsory Third Party insurance superimposed inflation and Nominal Defendant Levy | 27/10/09 | s43(1) |
| 2 | 71-85 | Actuarial report (Cumpston Sarjeant Consulting Actuaries): ACT CTP Scheme – Impact of proposed legislative changes with respect to whole person impairment | 07/05/10 | Partial Release (Exempt on balance of document s (43)(1)) |
| 3 | 94-97 | NRMA Insurance: Heads of Damage (HOD) Graphs ACT (data as at September 2010) | 02/11/10 | s43(1) |
| 9 | 140-143 | NRMA Insurance: Heads of Damage (HOD) Graphs ACT (new scheme [October 2008 onwards] data as at September 2008 – all claims) | 26/11/10 | s43(1) |
| 10 | 144-147 | NRMA Insurance: Heads of Damage (HOD) Graphs ACT (new scheme [October 2008 onwards] data as at September 2008 – finalised claims) | 26/11/10 | s43(1) |
THE PARTIES’ SUBMISSIONS
The summary of the parties’ submissions which is set out below relies substantially upon the parties’ written submissions as supplemented by the oral arguments made during the hearing. In this part of the decision some parts of the written submissions have been directly quoted or paraphrased.
The Appellant’s Submissions
The appellant, in its submissions, emphasised that it is at an enormous disadvantage because, like most applicants in freedom of information cases, it does not know the contents of the documents in question, nor the background to their coming into existence. It argued that the Original Tribunal had failed to adopt a proper interpretation of section 43 of the FOI Act taking into account the implied guarantee and section 17 of the Human Rights Act.[16]
[16] Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA Insurance [2012] ACAT 13 at [6]
The appellant relied upon the test for the implied guarantee that was stated by the High Court in a unanimous decision in Lange v ABC[17] in well-known words that were slightly refined in Coleman v Power as follows:
When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively ‘the system of government prescribed by the Constitution’). If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid. [18]
[17] [1997] HCA 25; (1997) 189 CLR 520 at 567-568.
[18] [2004] HCA 39; 220 CLR 1 at [74]
In the present case the appellant said that the implied guarantee influences the construction of section 43 of the FOI Act in three ways. First, a political discussion in the ACT is a federal matter because the Commonwealth retains legislative power in relation to the ACT notwithstanding the Australian Capital Territory (Self‑Government) Act 1988. Second, in any event, the Commonwealth could not give to the ACT legislature greater power than it itself possessed at the time of self-government. Third, there are many aspects of ACT political discussion that are also federal political issues.
The appellant argued that the FOI Act creates a burden on free communication because the documents in this case relate to an actual political issue, which is the government’s proposal to amend the ACT CTP insurance laws. Nevertheless, the FOI Act has only one interpretation: its meaning does not change depending on whether the documents relate to federal political communication or not. Therefore, it must be interpreted consistently in all cases against the backdrop of the implied guarantee.
Because the ACT FOI Act has the potential to burden freedom of communication about federal political matters, the appellant submitted that any restrictions it imposes must be interpreted (pursuant to section 120 of the Legislation Act) as far as possible to be consistent with the implied guarantee, otherwise the only alternative is to declare particular provisions invalid. Therefore, it must be determined, said the appellant, whether section 43 can be justified as being reasonably appropriate and adapted to a legitimate end compatible with the system of representative government under the Constitution. This argument relies in part on the second limb of the Lange test quoted in Coleman v Powers above, where the High Court refers to the ‘maintenance of the constitutionally prescribed system of representative and responsible government’.[19]
[19] [2004] HCA 39; 220 CLR 1 at [74]
The appellant submitted that the interpretation of section 43 of the FOI Act from pre-Lange cases[20] is problematic, because at its most restrictive, exemplified by [47] of the Original Tribunal’s decision,[21] it could lead to a construction of section 43 that impermissibly burdens free communication on political matters. This is not a constitutional issue, but a more confined question of the proper interpretation in accordance with section 120 of the Legislation Act to avoid straying into possible constitutional invalidity.
[20] For example, Maher and Attorney General’s Department [1986] AATA 16
[21] Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA Insurance at [47]
The appellant further submitted that a similar issue of interpretation arises in relation to section 17 Human Rights Act 2004 and argued that the Original Tribunal fell into error by upholding an argument made by the respondent that the Human Rights Act applied only to individuals, not to the appellant Law Society.[22] The appellant agreed that the Human Rights Act gives rights only to citizens. However, it said that that comment is beside the point because there is only one interpretation of section 43 of the FOI Act. Its meaning does not change depending on whether a citizen or an entity such as the Law Society applies for access to documents. Hence, section 17 of the Human Rights Act is relevant because, in interpreting section 43 of the FOI Act, the Tribunal must apply an interpretation that takes account of the fact that when citizens apply for access, there are interpretative obligations imposed by section 30 of the Human Rights Act. There can be only one meaning of section 43 of the FOI Act; hence the Tribunal is required by section 30 of the Human Rights Act to have regard to the interpretative obligation imposed by that section.
[22]The appellant also drew the Appeal Tribunal’s attention to section 2(2) of the FOI Act, which, it said, casts the interpretative obligation wider than section 120 of the Legislation Act and section 30 of the Human Rights Act.
The appellant invited the Appeal Tribunal in applying the ‘interpretative obligations’ (which in the Appeal Tribunal’s understanding appears to refer to all interpretative obligations under section 120 of the Legislation Act, including the implied freedom of political communication, section 30 of the Human Rights Act and section 2(2) of the FOI Act) to section 43 of the FOI Act to consider three steps. First, one must see whether more than one interpretation is reasonably open from the text of the provision. Second, one must look to whether one interpretation results in greater disclosure. Third, one must ask whether that interpretation is still consistent with the purpose of the section. For this approach to interpretation, the appellant predominantly relied on two ACT cases – R v Fearnside[23] and In the matter of an application for bail by Islam.[24]
[23] R v Fearnside [2009] ACTCA 3
[24] In the matter of an application for bail by Islam [2010] ACTSC 147
The appellant argued that the use of the words ‘unreasonable’ and ‘reasonable’ throughout section 43 of the FOI Act gives rise to a range of possible interpretations as to what matters should be considered by the tribunal in deciding whether or not to uphold a claim for exemption from disclosure. Consistently with the interpretive obligations, the Tribunal is therefore required to prefer an interpretation that allows for greater possible disclosure of information. In effect, this means weighing the scales in favour of disclosure more heavily against the effect of non-disclosure; and applying the widest range of considerations (in the nature of a public interest test) to the question of disclosure. Such an interpretation is entirely consistent with the purpose of the FOI Act because it accords with the objects of that Act in section 2.
The result of this test, submitted the appellant, is that the tribunal must weigh the scales heavily in favour of disclosure because firstly, the documents in question relate directly to a matter of public political discussion and have the potential to reveal the financial basis said to underpin the government’s proposed amendments, secondly, the information was provided to the Territory by its third party insurer, and finally, the information was provided by a party with a vested interest in the third party scheme.
The appellant also noted the reference to section 46 of the Road Transport Act in the Original Tribunal’s decision at [10]. The Original Tribunal did not appear to uphold that argument about section 46 because it was not subsequently referred to in the Original Decision. The appellant contended that section 46 of the Road Transport Act, properly interpreted, means that it is likely that the information in the exempt documents has to be disclosed by virtue of that section. Since 2008 that section has required a licensed insurer (such as NRMA) to report on the profit margin and the actuarial basis for working out that profit margin; and has required the CTP regulator to present a report on those matters to the legislature.
Further, the appellant submitted that while the requirement for the CTP regulator to report to the legislature dates from the introduction of the Road Transport Act on 1 October 2008, the information must of necessity include significant pre-2008 information. The words ‘actuarial basis for working out that profit margin’ in section 46 of the Road Transport Act cannot be confined to information post-2008: it has to be informed by such matters as the history of claims and their cost over a lengthy period of time. It follows that as the information in the documents is at risk of disclosure under section 46 of the Road Transport Act, it cannot be exempt under any provision of the FOI Act.
The Respondent’s Submissions
The respondent submitted that the appeal should be dismissed, as none of the grounds of appeal identify any reason why the Original Tribunal’s decision was wrong and/or why section 43 of the FOI Act does not apply to exempt disclosure of the subject documents. In particular, the respondent argued that the appellant did not specifically address the terms of sections 43(1)(b) and/or 43(1)(c)(i) and (ii) of the FOI Act. Rather, the respondent said, the appellant had mounted a collateral attack by reference to constitutional and human rights issues but the proper interpretation of these provisions should be the starting point of the inquiry.
After addressing the authorities, the respondent argued that there is no dispute in the present matter that the information in issue concerned the business, commercial or financial affairs of NRMA. NRMA filed evidence explaining why the information was commercially valuable and sensitive and the statement of Mr Nathan Rivett addressed the requirements of sections 43(1)(b) and 43(1)(c) of the FOI Act for each of the disputed documents. Importantly, the respondent noted that the appellant had not challenged Mr Rivett’s evidence before the Original Tribunal.
The respondent made submissions about the interpretation of the various expressions in section 43 of the FOI Act and their application in this case. In particular, the respondent submitted the following.
a)The phrase ‘could reasonably be expected’ in sections 43(1)(b) and (c)(i) imports an objective test which requires the Tribunal to be satisfied that the respondent’s expectation is based on real and substantial grounds. [25] Mr Rivett’s witness statement addressed this issue before the Original Tribunal.
b)For the expression ‘unreasonably affect that person adversely’ in section 43(c)(i), the question is whether the information is capable of causing competitive harm to the relevant entity.[26] The concept of ‘reasonable’ here means something that is distinguishable from that which is irrational, absurd or ridiculous.[27] This requires a judgement about disclosure that takes into account all of the relevant circumstances and a balancing of legitimate interests.[28] NRMA expressed a significant concern about the effect of disclosure to competitors in circumstances where it was the sole CTP insurer in the ACT. NRMA identified its concerns by reference to each of the relevant circumstances and interests as required under that provision.[29]
c)The term ‘future supply of information’ to the respondent in section 43(c)(ii) requires that inquiry be confined to whether the expectation was reasonably based and ‘an unwarranted gloss’ should not be placed on ‘the relatively plain words of the Act’.[30] Here, the respondent argued, the Executive Director of the respondent formed a view, based on NRMA’s concerns about the disclosure of the information, that the respondent had a reasonable expectation that NRMA would decline to provide future information to the respondent if the information in question was disclosed.[31]
[25] B and Brisbane North Regional Health Authority [1994] QICmr 1;
1 QAR 279 at [160] and Re: Searle Australia Pty Ltd and: Public Interest Advocacy
Centre and Department of Community Services and Health (1992) 108 ALR 163
[26] Re Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; 1 QAR 491 at 521 [84].
[27] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190
[28] Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at [51]
[29] Appeal Book, document 2, ST4 at page 11
[30] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
[31] Appeal Book, document 2, ST4 at pages 10-12
The respondent noted that the appellant did not challenge the evidence that was tendered at fist instance by the respondent or the party joined. As stated above, the evidence primarily consisted of the witness statement of Mr Rivett dated 7 September 2011, the Tribunal documents and the supplementary Tribunal documents.
In response to the appellant’s submissions that the meaning of ‘unreasonable’ and ‘reasonable’ where used in section 43 of the FOI Act may have a ‘range of possible interpretations’, the respondent contended that this argument was made without any reference to judicial authority and appears to be contrary to the constructions of these expressions in the case law.
The respondent further argued that the appellant incorrectly imported a public interest test into section 43 of the FOI Act, where there is no express or implied reference to a public interest test for this section, thereby distorting the ordinary meaning of that section and importing a test that is not applicable to that provision. The respondent considered that the Appeal Tribunal would fall into error if it adopted such an approach.
In relation to the appellant’s arguments about the implied guarantee, the respondent firstly noted that resort to the implied guarantee of freedom of political communication is generally raised to challenge the validity of a law or legislative instrument and the Tribunal (both at first instance and on appeal) has no jurisdiction to declare a law of the ACT invalid because it is inconsistent with an implied guarantee of freedom of political communication in the federal Constitution,[32] therefore the issue posed by the appellant is not one which the Tribunal should be asked to determine. The respondent submitted that the Appeal Tribunal should proceed on the basis that the FOI Act and/or section 43 of the FOI Act is a validly enacted law of the ACT. Secondly, the implied guarantee does not create a justiciable right per se. The right to political free speech is not a positive, personal right. Thirdly, while laws should be construed as far as possible to be within power,[33] it is wrong to suggest that a statute must be construed by reference to the implied guarantee in a manner which displaces ordinary rules of construction or seeks to change the meaning of a statutory provision. The respondent emphasised that the appellant’s submission that the Lange test influences the construction of section 43 of the FOI Act is not supported by any judicial authority and adoption of that submission by the Tribunal would result in an unorthodox approach which is at odds with the general principles of construction. Therefore, the respondent submitted that the appellant’s approach should be rejected.
[32]Lourandos and Yiannokopoulos & ACT Planning And Land Authority and Ors
[2011] ACAT 25 at [94], Re Adams and Tax Agents’ Board
(1976) 1 ALD 251 at 257, Director of Housing v Sudi [2011] VSCA 266
[33] Section 120 Legislation Act
The respondent further contended that the appellant’s arguments that political discussion in the ACT is a federal matter are unclear. Pointing to the territories power in section 122 of the Constitution and relying on the judgments of McHugh J in Australian Capital Television Ply Ltd v Commonwealth[34] and Dawson J in Kruger v Commonwealth,[35] the respondent said that insofar as the application of the implied guarantee is based on the doctrine of representative government, the latter has no application to the exercise of powers under section 122 of the Constitution. Fourthly, the respondent asserted that the appellant’s contention that political discussion in the ACT is a federal matter is misconceived. The respondent argued that the appellant did not point to any fact or circumstance in the present matter that suggests discussion about the amendments proposed by the Road Transport Bill might bear on the choices that people make in matters of federal political discourse, for example, voting in federal elections, evaluating the performance of federal ministers or federal policies. Any debate about the proposed amendments to ACT legislation is only concerned with the ACT.
[34] (1992) 177 CLR 106 at 246
[35] (1997) 190 CLR 1
Fifthly, as argued by the respondent, the FOI Act does not create an automatic right to all documents held by government. It does not follow that the denial of access is a denial of a right which is otherwise held by a person (or in this case the appellant). It does not follow as a matter of law or logic that a proper and considered exercise of an administrative discretion to refuse access to a document is an interference with the implied guarantee in the form described by the appellant. There is nothing in any of the authorities concerning the implied guarantee which extends the guarantee to a right to obtain documents or that requires a minimum level of disclosure.
Sixthly, the respondent contended that the appellant had not explained in its submissions or by reference to any authority how the implied guarantee applies to the exercise of discretion.[36]
[36] APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at [65] per McHugh J
Finally, even if the implied guarantee was relevant to the issue before the Tribunal, then the appellant had posed the wrong test and failed to adduce any evidence to support its contentions. The respondent submitted that even if the Lange/Coleman test applied, neither of the limbs of that test is satisfied. Section 43(1) of the FOI Act operates as an exemption to disclosure on the ground of a person’s commercial or business communications. It has no application to political communication. It is exclusively concerned with business affairs and commercial information. For this reason, the terms of section 43 of the FOI Act do not burden freedom of communication about government or political matters. Moreover, the requirements of section 43 of the FOI Act are reasonably appropriate and adapted to achieve the purpose of protecting genuine commercial information which is of value to a person and which would be damaged or diminished if disclosed. The appellant adduced no evidence to suggest otherwise and in the absence of any evidence adduced by the appellant to support its assertions, the Tribunal should reject the argument.
As regards section 17 of the Human Rights Act, the respondent said that contrary to the appellant’s submissions, section 17 has nothing to do with access to documents and nothing to do with whether an exemption applies to a general right of access under the FOI Act. Rather, Section 17 is based on article 25 of the International Covenant on Civil and Political Rights which is concerned with the right to vote and access to the public service.[37] The right is specifically conferred on citizens (not any person or groups or associations). Contrary to the appellant’s submission, the Original Tribunal was correct to recognise the limit of the right to citizens.
[37] General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 1210711996. UN Doc CCPR/C/21/Rev.1/Add
The respondent submitted that the appellant’s reliance on section 17 of the Human Rights Act was misplaced. In any event, the non-disclosure of the document does not prevent the appellant or its members participating in political debate. The appellant’s assertion in this regard (said the respondent) was not supported by any evidence that the appellant had been prevented from engaging elected representatives or participating in political debate. There is no evidence that the rights conferred by section 17 of the Human Rights Act had been impaired in any way or, more specifically, that section 43 of the FOI Act has the effect of impairing or contravening the section 17 right.
The respondent submitted that the appellant’s contentions were fundamentally misconceived with respect to the way section 17 of the Human Rights Act operates and its role in interpreting section 43. Even assuming that section 17 of the Human Rights Act was applicable and section 30 of that Act applies, the respondent argued that the Tribunal’s task is to construe sections 43(1)(b) and (c) so far as it is possible to do so consistently with its purpose in a way that is compatible with section 17 of the Human Rights Act.
The respondent submitted that the appellant had misstated the judgments in Momcilovic v The Queen (Momcilovic).[38] Six members of the High Court confirmed the validity of section 32(1) of the Victorian Charter (which is in similar terms to section 30 of the Human Rights Act) and found that section 32(1) the Victorian Charter does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision and a court or tribunal must discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction.[39]
[38] (2011) 85 ALJR 957
[39] Slaveski v Smith & Anor [2012] VSCA 25 at [20]
Contrary to the appellant’s submissions, the respondent stated that it is not correct to say that Momcilovic required a finding that ‘at least two interpretations must be reasonably open on the text’ and the tests relied upon by the appellant in applying the Human Rights Act do not reflect any part of the Momcilovic decision and no reference had been made by the appellant to any parts of the judgments to support its contentions. The respondent therefore submitted that the appellant’s contentions concerning the Human Rights Act should be rejected.
As regards section 46 of the Road Transport Act, the respondent contended that the appellant had made a general assertion about the requirement. It did not adduce any evidence to support its contention nor cross-examine any witness about its contention. The appellant therefore did not attempt to make any realistic connection between the requirements of section 46 of the Road Transport Act and the subject documents.
The Submissions of the Party Joined
The party joined argued that the Appeal Tribunal lacked jurisdiction because the appellant must identify ‘a question of fact or law’ that is the subject or object of the appeal pursuant to section 79(3) of the ACAT Act in its application. This has not occurred on this appeal.
The party joined compared the review jurisdiction of the Appeal Tribunal to a comparable power that is exercised by the Family Court of Australia. The High Court in Allesch v Maunz[40] commented upon this power as follows:
[T]he powers of the appellate court are exercisable only where the appellant can demonstrate that … the order that is the subject of the appeal is the result of some legal, factual or discretionary error … . (emphasis added)
[40] (2000) 203 CLR 172 at [23]
Because the appellant had not specifically contended that an error of fact, law or discretion had occurred, the application to appeal must be dismissed.
As regards the interpretation of section 43 of the FOI Act, the party joined argued that the subject documents contain ‘information’ that has commercial value to NRMA because it is valuable for the purposes of carrying on the commercial activity of providing CTP insurance in the ACT and NSW. The information contained in the documents is also valuable because it is important or essential to the viability of a continuing business operation, including competition with competitors.
The party joined further contended that the value of that information to NRMA will be destroyed or diminished if it were disclosed to a third patty without express, binding and enforceable conditions on its use. However, publication of documents pursuant to the FOI Act is publication to the world, including the world of insurance competitors. The subject information is mostly current information. The only exception is that some historic information is included in the documents at folios 130 - 137, 98 – 110 and 111 - 123. That historic information provides a necessary context for the more recent information and NRMA contended that this historic information is exempt under section 43(1)(b) of the FOI Act. The party joined claimed that historic data in this context retains its value as it provides essential baseline actuarial data which is used in the assessment of risk and the quantification of costs and future pricing.
The party joined also submitted that disclosure of the subject documents would have ‘unreasonable adverse effect’ on NRMA’s lawful business affairs pursuant to section 43(1)(c)(i) of the FOI Act. The information contained in the subject documents relates to the CTP regime in the ACT. The information also concerns the role of NRMA in providing that CTP coverage in the recent past, at the present time, and into the future. Much of the information in the subject documents originated from NRMA and was provided to either Cumpston Sarjeant as consultants to the ACT Treasury Directorate, the ACT Insurance Authority or the ACT Government in order to assist its evaluation of the scheme.
The party joined argued that the subject documents, in particular, the consultant's reports, contain information relating to NRMA’s pricing structures and actuarial data (which forms the foundation of the pricing structures). The nature of the data is such that it would permit competitors of NRMA to understand or to construct patterns of NRMA’s business in respect to CTP. With that information, competitors would then be provided with an unfair advantage in the market, or in the case of the ACT where NRMA is the sole CTP provider, with an unfair advantage in commencing or seeking to commence business in the ACT market.
Addressing the requirement of section 43 of the FOI Act regarding NRMA’s expectation that harm will occur, the party joined contended that the risk of harm here is not merely speculative, imaginable or theoretically possible – it is a real risk. It submitted that the information contained in the subject documents would provide potential participants in the insurance industry with a significant volume of relevant information on the CTP business in the ACT.[41] In NSW, NRMA already operates in a competitive environment and the disclosure of the subject documents would immediately assist its competitors.
[41] Statement by Mr Nathan Rivett dated 7 September 2011 at Appeal Book, Tab 5
The party joined agreed with the appellant (and its position in this regard was distinguishable from the respondent) that section 43(1)(c)(i) of the FOI Act imports a public interest test because the use of the word ‘unreasonably’ in that provision points to a public interest test that must be satisfied before an exemption can be maintained. In support of this contention, the party joined relied upon the comments made by the Federal Court in Colakovski v Australian Telecommunications Corporation[42] where the Court stated in relation to the Commonwealth equivalent of section 43:
What is ‘unreasonable’ disclosure of information for purposes of s 41(1) must have as its core public interest considerations...[43]
[42] (1991) 23 ALD 1 at 9.3 per Lockhart, Jenkinson and Heery JJ
[43] (1991) 23 ALD 1 at 10
The party joined submitted that a proper application of the test in section 43 of the FOI Act involves balancing or weighing relevant factors. In this context, the relevant factors include the general public interest in government-held information being accessible and the enhancement of scrutiny of government decision-making processes which must be balanced with the private, confidential and commercially valuable nature of the subject documents to the party joined together with the fact that the release of the documents would likely cause damage to the business of NRMA and a likelihood that information to government will no longer be volunteered.
In the case of the subject documents, the party joined argued that the balance lies in not disclosing for, inter alia, the following reasons:
(a) the advantages that a competitor would derive from the information would be significant and would have an adverse impact on NRMA;
(b) the documents contain information which was provided to the government on a voluntary and confidential basis; and
(c) the documents contain information which is in part out of date and, in the context of the public debate on the government’s future policy on CTP, will not contribute meaningfully to that debate. In fact, the release of unqualified and misleading information is likely to confuse and distract the debate.
In summary, the party joined submitted that the subject documents should remain exempt pursuant to section 43(l)(c)(i) of the FOI Act as the statutory test of exemption is satisfied. The subject information concerns the business affairs of NRMA and disclosure would have an unreasonable adverse effect on its business affairs.
Although the Appeal Tribunal has found no error in the Original Tribunal’s decision, it was necessary for it to rely on the evidence before the Original Tribunal, particularly the witness statement of Mr Rivett, to determine whether the subject documents satisfied the exemption under section 43 of the FOI Act. Although the evidence satisfied the Appeal Tribunal that the subject documents were exempt, it considered that it was nevertheless prudent to examine the subject documents in conjunction with this evidence to verify the assertions made by the respondent and the party joined about the documents.
The Appeal Tribunal has accordingly examined the subject documents and concludes that no error can be discerned in the exercise of discretion by the Original Tribunal. In particular, the Appeal Tribunal is satisfied of the following elements of the exemption under section 43 of the FOI Act: that the information has commercial value pursuant to section 43(1)(b); that it concerns the business, commercial or financial affairs of the party joined pursuant to section 43 (1)(c); that the commercial value could reasonably be expected to be destroyed or diminished if the information were disclosed pursuant to section 43(1)(b); that the disclosure of the information and documents would have an unreasonable adverse effect on the party joined’s lawful business affairs pursuant to section 43(1)(c) (i) and the disclosure of the information could reasonably be expected to prejudice the future supply of information pursuant to section 43(1)(c)(ii) of the FOI Act.
CONCLUSION
The Appeal Tribunal concludes that no error of fact or law has been established by the appellant. The appeal is therefore dismissed.
………………………………..
Professor P Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AT 12/12 |
PARTIES, APPELLANT: | THE LAW SOCIETY OF THE ACT |
PARTIES, RESPONDENT: | THE TREASURY DIRECTORATE |
PARTY JOINED | NRMA INSURANCE |
COUNSEL APPEARING, APPELLANT | Mr C Erskine SC |
COUNSEL APPEARING, RESPONDENT | Ms K Eastman SC |
COUNSEL APPEARING, PARTY JOINED | Mr M Robinson SC |
SOLICITORS FOR APPELLANT | Blumers Lawyers |
SOLICITORS FOR RESPONDENT | ACT Government Solicitors |
SOLICITORS FOR PARTY JOINED | HWL Ebsworth Lawyers |
TRIBUNAL MEMBERS: | Professor P. Spender |
DATES OF HEARING: | 27 July 2012 |
PLACE OF HEARING: | Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA Insurance
at [25]
Council of the Law Society in the ACT & ACT Treasury Directorate and NRMA
[2012] ACAT 13, at [37] to [49]
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