LJXW and Australian Federal Police (AFP)
[2011] AATA 187
•22 March 2011
CATCHWORDS – FREEDOM OF INFORMATION – effect of amendments to FOI Act on applicable law – relevance of availability of information from sources other than the respondent – relevance of applicant’s interest as the father of the person about whom he sought unreasonable disclosure of personal information – decision affirmed.
PRACTICE AND PROCEDURE – obligation to give reasons – effect of s 63(2)(a) of the FOI Act on that obligation.
Air International Pty Ltd v Chief Executive Officer of Customs (2002) 121 FCR 149, (2006) 153 FCR 479; 230 ALR 269
Alexandra Private Geriatric Hospital v Blewett (1984) 2 FCR 368; 56 ALR 265
Arnold (on behalf of Australians for Animals) v. Queensland and Anor [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303; 27 FLR 400
Boughey v The Queen (1986) 161 CLR 10
Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479; 230 ALR 269
Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
Conway v Rimmer [1968] AC 910
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Ford v Child Support Registrar [2009] FCA 328
Guthrie v Spence [2009] NSWCA 369
Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551; 5 ALD 545
Holland v Jones (1917) 23 CLR 149
Jorgensen v Australian Securities and Investment Commission [2004] FCA 143, (2004) 208 ALR 73
Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321
Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55
Leach v R [2007] HCA 3; (2007) 230 CLR 1; 232 ALR 325; 81 ALJR 598
Marco Ascic v Australian Federal Police (1986) 11 ALN N184
McKenzie v Lucas [2010] NSWSC 1083
McKinnon and Powell v Department of Immigration and Ethnic Affairs [1995] AATA 364; (1995) 40 ALD 343
McKinnon v Secretary, Department of the Treasury [2006] HCA 45, (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
O’Sullivan v Farrer (1989) 168 CLR 210
Poignand v NZI Securities Australia Ltd and Others (1992) 109 ALR 213
R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766
Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355, [1995] ACTAAT 101
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2008) 51 AAR 308
Re Carter and Department of Health Unreported, Administrative Appeals Tribunal (ACT), Curtis P, No C94/87, 23 January 1995
Re Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Re Connolly and Department of Finance (1994) 34 ALD 655
Re Dunn and Department of Defence [2004] AATA 1040
Re Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re James and Australian National University (1984) 36 FCR 111; 2 AAR 327; 6 ALD 687 (1984) 2 AAR 327; 6 ALD 687
Re McKinnon and Powell and Department of Immigration and Ethnic Affairs [1995] AATA 364; (1995) 40 ALD 343
Re McKinnon and Secretary, Department of Prime Minister and Cabinet [2007] AATA 1969
Re Mickelberg and Australian Federal Police (1984) 6 ALN N176
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Thies and Department of Aviation (1986) 9 ALD 454
Re Walker and Australian Federal Police [2010] AATA 965
Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219
RJE v Secretary to the Department of Justice and Others [2008] VSCA 265
Rogers v Home Secretary [1973] AC 388
Republic of Croatia v Snedden [2010] HCA 14; 265 ALR 621; 84 ALJR 334
Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505
Samad v District Court (NSW) (2002) 209 CLR 140
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163; 36 FCR 111
Shergold v Tanner[2000] FCA 1420; (2000) 102 FCR 215; 179 ALR 150; 62 ALD 584
Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228; 155 ALR 571; 72 ALJR 1199
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
The News Corporation Ltd v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1979) 27 ALR 367, 42 FLR 331
Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1
Victoria Police v Marke [2008] VSCA 218
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
Ward v Williams (1955) 92 CLR 496
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Wiseman v The Commonwealth [1989] FCA 434
Acts Interpretation Act 1901 s 25
Administration and Probate Act 1958 (Vic) s 5(1)
Administrative Appeals Tribunal Act 1975 ss 25(1), 33, 33(1)(c), 37, 39, 43 and 63(2)(b)
Archives Act 1983 s 3(1), 5(2)(c) and 24(1)(a) and (c)
Australian Federal Police Act 1979 s 3A(4), s 4(1), 8(1)(bf), 8(1)(bg), 8(1)(c), 37(2), 37(1), 40RA, 40RH(1), 40RH(2) and (3), 40RI(1), (2) and (3) 40RK, 40RL, 40RM(1) and 67
Coroners Act 1985 (Vic) 1985CA, 19(2), 19(3), 20(1), 20(2), 21, 45(3), 46(1)(a)
Coroners Act 2008 (Vic) s 3(1) and (3), 63(1) and (2), 73(1), 115(1)(a), 115(7), 115(8), 120 and 123(1),
Customs Tariff Act 1995
Evidence Act 2008, ss 65(3), (4) and (6)
Freedom of Information Act 1982 ss 3(1), 4(1), 4(1) (a), (b) and (c), 14, 11, 11(1)(a), 11(2)(a), 22(1), 22(1)(b)(ii) and 22(1)(c), 22(2), 24, 27A(1A), 27A(1)(a) and (b), 36(1)(b), 40(2), 41(2) and (8) and 91(1) and (2)
Freedom of Information Amendment (Reform) Act 2010 No. 51, ss 2(1), 3, 3(3A, 3, 3(1)(b), 3A, 22(1)(c), Schedule 1, item 1, Schedule 3, items 2, 21, 27 and 33 and Schedule 4, Part 3, items 65(1), Item 7
Law Enforcement Integrity Commissioner Act 2006
Privacy Act 1988 s 6(1), 10(2)(b) and (d) and 14, Principle 1, Principle 11, item 1(d),
Administrative Arrangements Order
Australian Federal Police Regulations 1979 rr 13A(a) and 13C(1)(a)
Coroners Court Rules 2009 (Vic) Order 8 Rule 64 and Rule 64(1)
DECISION AND REASONS FOR DECISION [2011] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/3789
GENERAL ADMINISTRATIVE DIVISION )
Re:LJXW
Applicant
And:AUSTRALIAN FEDERAL POLICE
Respondent
And: QKDP
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 22 March 2011
Decision:The Tribunal affirms the decision of the respondent dated 22 July 2008.
(sgd) S A Forgie
Deputy President
REASONS FOR DECISION
Confidentiality orders have been made restricting the publication of the name of the applicant and of the party joined in this matter and of any matter tending to identify them. The documents that the applicant, who is identified as LJXW, has requested under the Freedom of Information Act 1982 (FOI Act), refer to another person. Identification of that person would identify LJXW as well as the party joined, who has been given the pseudonym QKDP. Therefore, I have used the pseudonym of LSHF for that other person. No order has been made restricting publication of the name of the respondent, the Australian Federal Police (AFP).
Under the FOI Act, LJXW requested access to the service records pertaining to his son, LSHF, who has died. LSHF was once an employee of the AFP. LJXW also asked for all documents “pertaining to his service in … [named area] for the AFP” and “pertaining to his Medical Records whilst at the AFP etc”.[1] I understand LJXW to be asking for all records that “… concern or relate …[or] have to do with …”[2] LSHF’s service in the named area or his medical records while at the AFP. QKDP is LSHF’s widow and also the executor of his estate and joined as a party in this matter. She and LSHF’s mother resisted the disclosure of the documents to LJXW. In general terms, LJXW raised a number of issues relating to the availability of the information in the public arena, the public interest and his particular interest as LSHF’s father.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) at 3.1
[2] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The AFP claimed exemption for the documents under ss 40(1)(c) and 41. Section 40(1)(c) requires consideration of the effect of disclosure on the management or assessment of personnel by, in this case, the AFP. Section 41 requires consideration of the effect of disclosure of personal information about a person.
I have decided to affirm the decision of the AFP dated 22 July 2008 and refusing to grant access to LJXW in accordance with his request but note that the provisions of s 63(2)(a) of the FOI Act prevent me from setting out my reasons in full. To do so would be to contravene that provision for I would have to include matter or information of a kind referred to in s 63(1) i.e. information that is of a kind that is exempt matter contained in a document to which the proceedings relate or information of a kind referred to in s 25(1).[3]
[3] Section 25(1) provides:
THE DOCUMENTS IN RELATION TO WHICH EXEMPTION IS CLAIMED
The documents in respect of which the AFP claims an exemption under s 41 are set out in the Schedule to Commander Scott’s affidavit. In broad terms, the Schedule shows that the documents fall into three categories:
(1)personnel records dealing with matters connected with LSHF’s being employed by the AFP including leave requests, pay advice, superannuation entitlements. induction, transfers and periods of performing higher duties;
(2)service records related to LSHF’s service as an AFP officer including operational assessments; and
(3)medical records relating to LSHF.
THE EFFECT OF THE AMENDMENT OF THE FOI ACT
The FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[4] (FOI Amendment Act). Of significance in this case are the amendments it made to the exemption provisions in Part IV of the FOI Act. In particular, it repealed ss 40 and 41 under which the AFP has claimed exemption in this matter.[5] In their place, ss 47E and 47F were enacted.[6] The FOI Amendment Act also repealed s 27A setting out the consultation provisions that must be followed when a request is made for access to documents containing personal information.[7] That provision was replaced by another provision also identified as s 27A.[8]
[4] Act No. 51 of 2010
[5] FOI Amendment Act, s 3, Schedule 3, item 27
[6] FOI Amendment Act, s 3, Schedule 3, item 33
[7] FOI Amendment Act, s 3, Schedule 3, item 21
[8] FOI Amendment Act, s 3, Schedule 3, item 21
All of these amendments were made by Part 2 of Schedule 3 to the FOI Amendment Act. That Part is entitled “Main exemption amendments”. Those amendments commenced operation on 1 November 2010[9] but they apply only in relation to requests for access made under s 15 of the FOI Act and received at or after that day. That is the effect of item 39 of Part 4 of Schedule 3 of the FOI Amendment Act. It means that, as LJXW made his request for access before 1 November 2010, I have reviewed the decision made by the AFP on the basis of the exemption provisions as they were enacted before their amendment.
[9] FOI Amendment Act, s 2(1), item 6
A more difficult question is whether I should have regard to the amendments to provisions that are made by an item that is found in a Part other than Part 2 of the FOI Amendment Act. Some of those amendments relate to sections that may inform the construction of an exemption provision amended by Part 2 of Schedule 3. An amendment of that sort is found in item 1 of Schedule 1 when it repeals s 3 of the FOI Act and substitutes another. Section 3 sets out the objects of the FOI Act.[10] It is a provision that has been referred to in cases such as Chandraand Minister for Immigration and Ethnic Affairs[11] (Chandra) and Colakovski v Australian Telecommunications Corporation[12] (Colakovski) in interpreting s 41. Each case referred to the object of the FOI Act consistently with the principle stated by Bowen CJ and Fisher J in The News Corporation Ltd v National Companies and Securities Commission[13] that:
“… The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.”[14]
[10] As previously drafted, s 3(1)(b) provided:[11] [1984] AATA 437; (1984) 6 ALN N257
[12] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
[13] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
[14] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66; 279; 85
Section 14[15] of the FOI Act was also referred to in Colakovski in the interpretation of the exemption in s 41. That section has been repealed by the FOI Amendment Act.[16] Its substance finds expression in a different form in s 3A[17] which has been inserted.[18]
[15] “Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.”
[16] FOI Amendment Act, s 3, Schedule 1, item 2
[17] “(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2)The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a)in the case of the power to publish information or document – despite any restriction on the publication of the information or document under this Act; and
(b)in the case of the power to give access to the information or document – whether or not access to the information or document has been requested under section 15.”
[18] FOI Amendment Act, s 3, Schedule 1, item 1
The amendments to ss 3 and 14 appear in Schedule 1 to the FOI Amendment Act. No transitional provisions are made in relation to them but I am mindful of s 8 of the Acts Interpretation Act 1901 (AI Act) which provides:
“Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
The application of s 8 depends very much on the particular terms of the amending legislation and of the legislation it is amending but a starting point is the identification of the right, privilege, obligation or liability that has been acquired, accrued or incurred under the repealed provisions. In this case, the right that has been affected is the right of access. This is given by s 11 but I will refer only to s 11(1)(a) for the moment:
“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document;
(b) …”
The right is a right to obtain access to a document of an agency but is not an unlimited right. First, it is a right that is subject to other provisions of the FOI Act. They include provisions such as s 22 to which I will return.[19] Second, it is a right that does not extend to an exempt document. As it does not extend to it, the correlative duty of the agency does not require it to give access to an exempt document.
[19] See [110]-[114] below
In view of the fact that Parliament has not amended s 11 of the FOI Act, which refers to the right, and has expressly provided that the amendments to the exemption provisions in Part 2 of Schedule 3 apply only in relation to requests for access made under s 15 of the FOI Act and received at or after that day, it seems to me that Parliament has intended that the boundaries of a person’s right of access are to be determined by reference to the day on which that person’s request was made. This is confirmed by item 65 of Part 3 of Schedule 4 of the FOI Amendment Act. Part 1 of Schedule 4 deals with amendments relating to the Information Commissioner, his powers, appeals to the Federal Court and review by the Tribunal. Subject to two exceptions that are not of consequence in this regard, the amendments apply only to requests for access made under s 15 that are received after 1 November 2010.[20] As the boundaries of the right of access under the FOI Act are determined not simply by reference to the words of the particular exemption provision under consideration but by the other provisions in the legislation, it seems to me that Parliament intended that any section that is relevant in the interpretation of the exemption provisions should be read in its unamended form when interpreting the exemption provisions in their unamended form.
[20] FOI Amendment Act, s 3, Schedule 4, Part 3, item 65(1) and see also s 2(1), Item 7
IS SIMILAR INFORMATION AVAILABLE ELSEWHERE AND, IF SO, IS IT RELEVANT?
LJXW referred to information that was either similar to that he had requested from the AFP or was in a class similar to that he had requested and to its availability from other sources. In this section of my reasons, I will consider the relevance of its availability. I will do so despite my reservations that LJXW has established that the information is available or, if available, the extent to which it is available.
General principles relating to relevance of availability of information outside FOI Act
The FOI Act sets out the circumstances in which agencies and Ministers of the Commonwealth must give access to documents in their possession or control whether they created them or whether they merely received them from others.[21] To the extent that it regulates the circumstances in which a person has a right to have access and an agency or Minister has a corresponding duty to grant access arises, the FOI Act is a code. I emphasise that it is to that extent only for it does not regulate the circumstances in which agencies or Ministers may give access to documents in their possession or control. If there are restrictions on their doing so, they will be found in legislation such as the Privacy Act1988 (Privacy Act) or in secrecy provisions in the particular legislation regulating their functions and powers. They will not be found in the FOI Act. The decision to grant access to a document, to which they are not obliged to give access under the FOI Act, is a matter in the discretion of the agencies or Ministers. If there are reasons for their exercising their discretion to grant access, they may be founded on any number of reasons. Among them might be the identity of the person requesting access and their reasons for doing so. Their discretion is recognised in the FOI Act itself when s 58(2) provides that the Tribunal does not have power to decide that access should be granted to a document that is an exempt document. Implicit in the statement that the Tribunal does not have that power is the understanding that the agencies and Ministers do have it.
[21] Section 11(1)(a) provides that “Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; …”. A “document of an agency” “… means a document in the possession of an agency … whether created in the agency or received in the agency.”: FOI Act, s 4(1).
Subject to the FOI Act itself, a person’s right of access is not affected by that person’s reasons for wanting access[22] but it is not a right without its boundaries. Whether access must be granted depends on matters such as whether a request for access to a document, to which the FOI Act applies, has been properly made, any fees and charges met and whether any provision of the FOI Act states that access does not have to be granted. Some of the provisions stating that access does not have to be granted are concerned with practical issues to do with, for example, workload considerations[23] or, in the case of an official document of a Minister, contains some matter not relating to the affairs of an agency or of a Department of State.[24] Others are concerned with the substance of the documents requested and they are the exemption provisions found in Part IV of the FOI Act. Access does not have to be granted to a document that comes within one of the provisions in Part IV. Furthermore, a person is not entitled to obtain access under the FOI Act if a document comes within one of the four types of document set out in s 12(1):
“A person is not entitled to obtain access under this Part to:
(a)a document, or a copy of a document, which is, under the Archives Act 1983, within the open access period within the meaning of that Act unless the document contains personal information (including personal information about a deceased person); or
(b)a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge; or
(ba)a document that is open to public access, as part of a land title register, in accordance with a law of a State or Territory where that access is subject to a fee or other charge; or
(c)a document that is available for purchase by the public in accordance with arrangements made by an agency.”
[22] FOI Act, s 11(2)(a)
[23] FOI Act, s 24
[24] FOI Act, s 4(1)
Nothing in the FOI Act provides that access must be given to a person to a document of an agency or of a Minister simply because that person has already had access to it from another source be it Commonwealth or State or be it a public or private body. The fact of prior access is irrelevant. The fact of current availability from another source is only relevant if that other source comes within s 12(1) and then only to exclude, and not to require, access.
This is not to say that prior access to a document or the ability to obtain access to it from another source is entirely irrelevant under the FOI Act. It may have relevance in deciding, for example, whether disclosure of a document under the FOI Act would involve the unreasonable disclosure of personal information about any person, including a deceased person.[25] Its relevance lies in being one of the matters to be taken into consideration in deciding whether or not the document is an exempt document and so one to which access may be refused under the FOI Act. Apart from circumstances such as that, prior access or the ability to obtain access from another source has no relevance.
[25] FOI Act, s 41(2)
I will now look at the particular documents to which LJXW says he has had access or can obtain access.
Records held by the Central Army Records Office
LJXW advised that he had been in touch with the Central Army Records Office (CARO) within the Department of Defence. He understood from his conversation with an officer of CARO that it made records available to the next of kin of a deceased serving or former members. He did not specify of what group or body the serving or former members were members but submitted that CARO must be responsible for the records of those members of the AFP who served overseas in the area in which LSHF served. LJXW based that on his understanding that CARO is “the highest authority in Australia” administering service records and that service records of those who served overseas in such areas must be released to it so that it can transmit them to the National Archives of Australia (Archives). Service of that type by members of the AFP would be as part of a peacekeeping force. Members of a peacekeeping force are entitled to be members of the Returned Services League (RSL). They are eligible for that membership through CARO. From that, LJXW submitted, it was clear that the Government’s policy is to release the service records of deceased AFP members to their next of kin. As the release of LSHF’s records to him by CARO was guaranteed, AFP’s stance in refusing him access had little credit.
I will begin with the membership of members of a peacekeeping force with the RSL. The existence of the RSL “is so generally known that every ordinary person may be reasonably presumed to be aware of it” without inquiry.[26] Its membership would not necessarily be in the same category but, qualification for membership of the RSL is, I think, a matter of which I can take judicial notice after inquiry from a source to which it is proper for me to refer.[27]
[26] Holland v Jones (1917) 23 CLR 149 at 153 per Isaacs J, with whom Barton ACJ concurred.
[27] Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228; 155 ALR 571; 72 ALJR 1199 at [14]; 234; 575; 1202 per Gaudron and McHugh JJ
I have been unable to find any case which elaborates upon what is meant by a source to which it is proper for me to refer. Although the Tribunal is not bound by the rules of evidence,[28] I note that s 144(1)(b) of the Evidence Act 1995 (Evidence Act) has established criteria by which such a source can be identified. It now provides that “Proof is not required about knowledge that is not reasonably open to question and is: …(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned”. Section 144(2) provides that “The judge may acquire knowledge of that kind in any way the judge thinks fit.” Those criteria would seem to be equally pertinent in merits review.
[28] AAT Act, s 33(1)(c)
Section 144(4) goes on to require the judge to give a party an opportunity to make submissions. It also requires the judge to refer to relevant information relating to the acquisition and taking into account of knowledge of that kind. That reference must be sufficient to ensure that the party is not unfairly prejudiced. That requirement is consistent with the Tribunal’s obligation to give every party to a proceeding a reasonable opportunity to present a case and to inspect documents to which the Tribunal proposes to have regard and to make submissions in relation to them.[29]
[29] AAT Act, s 39
Having regard to s 144, it seems to me that membership is a matter that can be ascertained after minimal enquiry from a publicly available source, namely the RSL’s website at It is a source that it is not reasonably open to question because it has the imprimatur of the RSL. LJXW has raised it as an issue and the AFP has been given an opportunity to address it if it wished but it is not a case in which it is seriously in issue. Had it been, I might well have required the matter to be established by consent or, in its absence, by more formal documentation from the RSL itself.
Having regard to the website and in general terms, the first two categories of membership of the RSL comprise those who served in the Australian Defence Forces (ADF) in any theatre of conflict, those who served for not less than six months in the Regular or Reserve Forces of the ADF and those who served in the defence forces of another country not an enemy of Australia. The third category applies to those who are Australian citizens who served overseas for not less than six months as a member of an approved Peacekeeping force. The fourth relates to specific persons who have served in a theatre of conflict and do not come within the earlier categories.
I also think that it is “… within the knowledge of ‘every well-informed person in Australia’ …”[30] that members of the AFP are involved from time to time in approved peacekeeping activities. Therefore, I accept that members of the AFP, who have served overseas for six months or more as members of an approved peacekeeping force are eligible for membership of the RSL.
[30] Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228; 155 ALR 571; 72 ALJR 1199 at [14]; 234; 575; 1202 per Gaudron and McHugh JJ
I have taken the same approach in relation to CARO. The official website of the Australian Army at includes a link to CARO and its Welcome page. On the basis of that, I find that:
“CARO maintains the service records of serving soldiers (not officers) and the records of discharged officers and soldiers from 1948 onwards.
The service records of soldiers discharged prior to 1948 have been transferred to the National Australian Archives (NAA).
Central Army Records Office (CARO) is part of the Soldier Career Management Agency (SCMA).
CARO maintains and interprets personnel files for discharged members of the Australian Army serving from post 1947 to the present day.
It also represents Army’s commitment to its ex-service community. It is responsible for the maintenance and management of the Personal Records of serving, regular soldiers (not officers).
In support of Army, and as an Army service to the community, CARO provides information from those records, to those people or agencies authorised to receive it, and when required, interprets that information.”
Eligibility for membership of the RSL is one thing and being a soldier, or former soldier or officer of the Australian Army is another. An employee of the AFP and a soldier serving in the Australian Army, both of whom are members of an approved peacekeeping force, would be eligible for membership of the RSL. Membership of the RSL, however, does not change the essential differences between them. One remains an employee of the AFP and the other a serving soldier or a former soldier or officer with the Australian Army. The records of the employee of the AFP remain with the AFP. Those of a soldier or former soldier or officer with the Australian Army remain with CARO. Each agency will presumably have arrangements with Archives regarding the retention and storage of those documents.
What is clear is that the personnel records of a serving or past employee of the AFP are not service records of the sort maintained by CARO. Therefore, CARO’s practices in relation to the records it manages and their disclosure are not relevant in determining whether records held by the AFP in relation to its employees should be disclosed.
Records held by the State Coroner’s Office
A.Past and current legislative framework
LJXW referred to information that he had been able to obtain from the State Coroner’s Office in Victoria regarding the coroner’s investigation of LSHF’s death. An inquest was not held.[31] As I understand his submission, LJXW was of the view that he had received from the State Coroner’s Office much of what he had requested from the AFP. He also relied on what appears to be a copy of pages 13 and 14 of a pamphlet setting out subjects such as those focusing on what an investigation involves, requesting an investigation, notifying persons if an inquest is required and the police role. The extract is undated. Under the heading “Access to information and privacy” is written the following:
“Once the coroner has concluded the investigation and completed a finding, the case is closed. The file then becomes a public record, unless the coroner directs to the contrary. This means that anyone can have access to the file. Also, anyone can get a copy of the transcript of the inquest – this is a recording of all the evidence. Fees apply for copying of the file and transcript.
Access to information before the conclusion of an investigation is made available to those people that the coroner directs. Usually this is the next-of-kin of the person who has died or their legal representatives.
The amount and type of information that is held varies. It can be as little as a few pages or as much as many hundreds of pages. The type of information can include reports from police and complex medical documents.
If you do not want the personal and private information contained in the coronial file to become a public record, write immediately to the State Coroner’s Office outlining your reasons why. Your request will be considered by the coroner and you will be informed of the decision. ”[32]
[31] Letter from State Coroner’s Office to LJXW: Exhibit D
[32] Exhibit C
I make no comment as to whether LJXW’s view that the documents he has received from the State Coroner’s Office is much of what he has requested from the AFP is, or is not, correct. That is not an issue that I am required to decide and I do not decide it one way or the other. Despite that and in light of LJXW’s obvious concerns, I will set out my view regarding the relevance of a person’s access to documents from the State Coroner’s Office to a review of a decision relating to access under the FOI Act.
As the investigation into LSHF’s death was completed in 2007,[33] it would have been conducted under the legislation formerly known as the Coroners Act 1985 (Vic) (1985CA).[34] Investigations were conducted under Part 5 of the 1985CA. Section 19(1) required the coroner to find, if possible, the identity of the deceased person, how the death occurred, the cause of death and the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996. The coroner might comment on any matter connected with the death including matters relating to public health or safety or the administration of justice[35] but might not include a finding or comment that a person was, or might be, guilty of an offence.[36]
[33] Exhibit D
[34] The name of the 1985CA was changed with effect from 1 November 2009 by the Coroners Act 2008, s 120
[35] 1985CA, s 19(2)
[36] 1985CA, s 19(3)
A coroner or the coroner’s clerk had to keep a record of each investigation and had to do so on a prescribed form.[37] That record was not evidence in a court of any fact asserted in it.[38] The coroner might report on a death to the Attorney-General, make recommendations to a Minister or public statutory body on any matter connected with the death investigated or report to the Director of Public Prosecutions if believing that an indictable offence has been committed in connection with the death the coroner has investigated.[39] Apart from these reports, there was nothing in 1985CA which provided for access to information held by the coroner or by the coroner’s clerk.
[37] 1985CA, s 20(1)
[38] 1985CA, s 20(2)
[39] 1985CA, s 21
If the investigation led to an inquest, regard had to be had to Part 7 of 1985CA. Section 45(1) provided that the coroner might “… make available any statements that the coroner intends to consider to any person with a sufficient interest.” A person with sufficient interest might appear at the inquest and call and examine and cross-examine witnesses.[40] It is apparent from s 47(1) of 1985CA that an inquest is generally held in public for a coroner had the power to exclude persons from it if reasonably believing that it was in the interests of any person, of the public or of justice to exercise that power. Section 57 required the evidence to be recorded. Section 58(1) complemented s 47(1). It provided that a coroner must order that no part of an inquest or of any evidence given at an inquest be published if reasonably believing that to do so would be likely to prejudice the fair trial of a person or would be contrary to the public interest.
[40] 1985CA, s 45(3)
The legislative provisions that repealed[41] and replaced Part 5 of the 1985CA are a different matter. They are found in the Coroners Act 2008 (Vic) (2008CA), which came into operation on 1 November 2009. Division 1 of Part 4 is concerned with the investigation of deaths. Section 14 sets out the deaths that the coroner may investigate, s 15 sets out those the coroner must investigate and s 17 sets out those that do not require investigation. Part 5 is concerned with inquests into deaths as well as into fires.
[41] Coroners Act 2008, s 123(1)
2008CA provides for information to be given to certain persons. I begin with the general admonition found in s 115(6) that:
“(6) A document relating to the investigation of a death or a fire that is held by a coroner must not be released by a coroner except as permitted under this Act or any other law.”
Of note in this case is s 21, which becomes relevant after a coroner has commenced an investigation into a death. It requires the principal registrar to give the senior next of kin of the deceased person and any other person whom the principal registrar considers has sufficient interest, to be given prescribed information. The prescribed information is information relating to the coronial process, including the purpose of a coronial investigation, and is set out in r 10 of the Coroners Regulations 2009 (Vic) (Regulations).
Not every investigation leads to an inquest. Section 52(1) provides that a coroner may hold an inquest into any death that the coroner is investigating. An “inquest means a public inquiry that is held by the Coroners Court in respect of a death or a fire”.[42] Part 5 goes on to set out the coroner’s powers at inquests and the process to be followed. Oral evidence provided at an inquest must be recorded.[43] As under 1985CA, a record of evidence is not generally[44] evidence in any court of any fact asserted in it.[45]
[42] 2008CA, s 3(1)
[43] 2008CA, s 63(1)
[44] Exceptions are found in the Evidence Act 2008, ss 65(3), (4) and (6)
[45] 2008CA, s 63(2)
In addition to the information about the coronial process, 2008CA requires the principal registrar to give information to certain persons. The first requirement relates to information to be given to the senior next of kin of the deceased person. The person identified as the senior next of kin is determined by reference to such matters as whether the deceased person had a spouse or domestic partner or, if not, a son or daughter or, if not, a parent and so on.[46] The information that must be given to that person comprises a copy of reports prepared as a result of a medical examination performed on the deceased. Unless ordered to do otherwise by the coroner, the principal registrar must comply with the requirement.[47]
[46] 2008CA, ss 3(1) and (3)
[47] 2008CA, s 115(1)(a)
Section 115(1)(b) comes into play if an inquest is to be held or has been held for it refers to access to the inquest brief. It requires the principal registrar to give an interested party a copy of the inquest brief.[48] An “interested party in relation to an inquest, means a person granted leave under section 56 to appear at the inquest.”[49] An “inquest brief” is defined in s 115(7) to include evidence prepared for an inquest and containing material, if available, of the sort set out in that sub-section. That material includes a statement of identification, reports given to a coroner as a result of a medical examination and reports, statements and evidentiary material considered by the coroner to be relevant to the inquest. It does not contain any medical evidence considered by the coroner to be irrelevant to the inquest.[50] No similar provision has been included in relation to documents relating to an investigation conducted without an inquest.
[48] 2008CA, s 115(7)
[49] 2008CA, s 3(1)
[50] 2008CA, s 115(8)
More general powers are found in s 115(2) when it provides that:
“A coroner may also release a document to –
(a)an interested party if the coroner is satisfied that the party has a sufficient interest in the document;
(b)a statutory body if the coroner is satisfied that the release of the document is required to allow the statutory body to exercise a statutory function;
(c)a member of the police force for law enforcement purposes;
(d)a person who is conducting research if the coroner is satisfied that the research has been approved by an appropriate human research ethics committee;
(e)any person if the coroner is satisfied that the release is in the public interest;
(f)a person specified in the rules as being a person to whom documents may be released.”
Subject to certain exceptions, s 67(1) requires a coroner investigating a death to find, if possible, the identity of the deceased, the cause of death and the circumstances in which the death occurred. Other details may be prescribed. Section 67(2) modifies the operation of s 67(1) by providing that a coroner need not make a finding regarding the circumstances of the death if an inquest was not held and, among other matters, no public interest is to be served in making a finding regarding those circumstances. A coroner may also comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice under s 67(3).
As for the coroner’s findings, comments and recommendations following an inquest, they must be published on the Internet in accordance with the Coroners Court Rules 2009 (Rules).[51] No similar provision is made in relation to an investigation that does not proceed to an inquest. Subject to any order to the contrary made by a coroner under s 73(2) of 2008CA, the coroner’s findings, comments and recommendations made following an inquest must be published on the Coroners Court website as soon as practicable.[52] Section 73(1) is to the same effect and again refers to the findings, comments and recommendations made following an inquest. There is no similar provision relating to an investigation that does not proceed to an inquest.
[51] 2008CA, s 73(1) and see also Rules, Order 8 Rule 64
[52] Rules Order 8 Rule 64(1)
B.The relevance of disclosure by the Coroners Court
LJXW has obtained a copy of a document whose front page is headed with the logo of the Victoria Police.[53] That page precedes the pathologist’s report and the toxicology report. There then follows a page bearing the same logo and entitled “Inquest Brief”.[54] It is followed by a summary of the late LSHF’s background and the circumstances of his death. A witness list sets out the names of a number of persons, their occupations and a summary of their evidence.[55] Statements from some of the witnesses follow[56] and then medical reports.[57] It is apparent from the Table of Contents at the beginning of the document that some pages are missing. Some of the missing pages appear as attachments to LJXW’s submission dated 28 January 2010.[58] Yet others are attached to his two submissions dated 19 May 2009.[59] LJXW said that he had obtained these documents from the State Coroners Office.
[53] Exhibit F
[54] Exhibit F between pages 12 and 13
[55] Exhibit F at 17-19
[56] Exhibit F at 29-42
[57] Exhibit F at 82-88
[58] Exhibit C
[59] Exhibits A and B
I have no reason to doubt that LXJW has obtained the documents but I am not clear of the basis on which he did so. He tendered a copy of a document headed:
“Application for Access to Coronial Document(s)
Pursuant to s. 51 of the Coroners Act 1985 (VIC)”[60]
It asks for details of the person applying for access or of the organisation together with details of the deceased person, of the documents sought and of the reasons for the request.
[60] Exhibit E
The reference to s 51 of 1985CA has left me perplexed. Section 51 of that legislation was repealed by s 8(3) of the Coroners (Amendment) Act 1999. Before its repeal it dealt with a subject that had nothing to do with access to coronial documents. It provided for the size of the jury when the coroner decided to hold an inquest with a jury. The only provision of 1985CA that provided for access to documents to be given to a person was s 45(1). That section provided that “A coroner may make available any statements that the coroner intends to consider to any person with a sufficient interest.” From its terms, it was a power that could be exercised before or during an inquest but not after it had been completed. I am not aware of any similar provision in 1985CA relating to an investigation or to any provision that provided for access by interested persons, senior next of kin or the public generally to documents of either an investigation or of an inquest.
The current legislation is a different matter. It confers wider powers on a coroner to give access to information than are found in 1985CA but they are not unlimited. Indeed, they are quite restrictive in the sense that the persons to whom information is to be given and the scope of that information are both carefully delineated. Information about the coronial process is the most broadly distributed being given to the senior next of kin of the deceased person and any other person whom the principal registrar considers has sufficient interest. The distribution of the inquest brief is limited to an interested party and so to a person who has been granted leave under s 56 of 2008CA to appear at the inquest. That is a more limited range of persons than a person considered by the principal registrar to have sufficient interest. Furthermore, those persons only obtain access to the inquest brief if a decision has been made to hold an inquest. Distribution of reports prepared as a result of a medical examination performed on a deceased person would be part of the inquest brief but, if there is to be no inquest, their distribution is limited to the senior next of kin of the deceased person. The only material that, subject to the coroner’s order to the contrary, is made available to the public comprises the coroner’s findings, comments and recommendations following an inquest. They are available on the Internet.
There is no basis under 2008CA on which LJXW could have obtained the findings of an inquest from the Coroners Court. That legislation does not apply to an investigation held before it came into operation. The only basis on which he could have done so is under the 1985CA but I know of no basis on which he could have done so when an inquest was not held. The coroner’s power to make available statements to a person with a sufficient interest is limited to circumstances in which an inquest is proposed or held.
The fact that there is no basis on which the inquest brief could be made available to LJXW or to any other person under the 1985CA is relevant when considering whether disclosure under the FOI Act would be unreasonable disclosure. That is a relevant question when considering an exemption provision such as s 41(1). Of particular relevance will be the fact that accessibility to information under the 1985CA was limited to a limited number of persons. I will return to this matter later in these reasons.
RELEVANCE OF LJXW’s REASONS FOR REQUESTING ACCESS
As I understand LJXW’s position, he would like to have certain matters relating LSHF’s death and his activities during the time in which he was an AFP employee investigated further. He feels that he has much of the relevant information already. I have referred already to s 11(2) which provides:
“Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”
Section 11(2) is really the beginning and end of the answer. Unless there is a particular provision in the FOI Act that requires me to have regard to LJXW’s reasons for wanting access to the documents, I must not. This was the view expressed by Black CJ in Shergold v Tanner.[61]
HEARING HELD IN LJXW’S ABSENCE
[61] [2000] FCA 1420; (2000) 102 FCR 215; 179 ALR 150; 62 ALD 584 at [20]; 221; 155; 589 per Black CJ
The request for a confidential hearing in LJXW’s absence
Part of the hearing was held in the absence of LJXW. The AFP had given notice to both LJXW and the Tribunal that it wanted to make submissions in his absence when it lodged its Statement of Facts and Contentions on 15 April 2009. In relation to seven exemption provisions, it wrote:
“The respondent is unable to put forward submissions in relation to the remaining exemption claims as to do so would disclose the nature of the exemption information. The respondent accordingly seeks to make oral submissions in private in relation to those claims.”[62]
By the time the matter came to a hearing, the AFP had refined its position regarding exemptions but still wanted to present evidence and make submissions in LJXW’s absence.
[62] AFP’s Statement of Facts and Contentions at [17]
Proceedings generally held in the presence of both parties and open to the public
The Administrative Appeals Tribunal Act 1975 (AAT Act), which establishes the Tribunal, provides for applications to be made to it for review of decisions. Its provisions set out a framework within which the parties proceed when an application is lodged. They also set out a framework within which the Tribunal reviews the decision that is the subject of an application. The AAT Act contemplates that, generally, the framework will remain consistent regardless of the type of decision under review. Consistency is one thing and rigidity another. The framework has sufficient flexibility to permit the Tribunal to adapt its procedures to the needs of the case or class of case.[63] Its rigidity comes in such things as the manner of applying for review of a decision, the persons who may do so and their representation before the Tribunal. It comes in such things as the constitution of the Tribunal, its obligation to give the parties a reasonable opportunity to present their cases and to inspect documents in all of its Divisions other than the Security Appeals Division[64] and its obligations in relation to the manner in which it reaches its decision.[65] If there is to be a variation in the framework itself, as distinct from any flexibility built into that framework, that variation must be made by Parliament itself. Any variation comes if Parliament itself adds to, excludes or modifies the provisions named in s 25(6) of the AAT Act.
[63] Section 33 of the AAT Act provides that the procedure of the Tribunal is, subject to the legislation itself and ay other enactment, within its own discretion.
[64] AAT Act, s 39
[65] AAT Act, s 43
An essential plank in the framework (applying to all proceedings other than those in the Security Appeals Division) is provided for in s 35(1):
“Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.”
Inherent in the proposition that a hearing shall be in public is the proposition that it shall be held in the presence of all of the parties. Section 35(1A) assumes that when it requires the Tribunal to take such steps as are reasonably necessary to preserve the public nature of a hearing when, under s 35A, the Tribunal permits a person to participate in a hearing by a means of communication other than personal attendance.[66]
[66] There are only a handful of exceptions to the general rule. Parliament has prescribed them in relation to the Security Appeals Division (s 35(1AA) and see s 35AA), in cases in which the Commonwealth Attorney-General or a State Attorney-General issues a certificate that disclosure would be contrary to public interest on certain grounds or intervenes in the hearing on the same grounds (ss 36, 36A, 36B, 36C and 36D), in cases in which Parliament has made particular provision to the contrary in legislation other than the AAT Act in relation to particular decisions reviewed by the Tribunal (e.g. Migration Act 1958, s 501K) and in cases in which the Tribunal has made an order under s 35(2) of the AAT Act.
Section 35(2) of the AAT Act gives flexibility to this part of the framework. 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)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(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 the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
Section 35(2) provides that the Tribunal may make all or any of the orders it sets out. Whether it does so is a matter within its discretion but it may only decide to do so if satisfied that it is desirable to do so because of the confidential nature of any evidence or matter or for some other reason. Even if satisfied in this way, it is not obliged to exercise that discretion. The desirability of preserving confidentiality is but one consideration. There may be equally weighty reasons that favour the Tribunal’s refusing to preserve confidentiality.
Parliament has recognised that there are competing concerns in exercising the discretion it has conferred upon it. In s 35(3), it tells the Tribunal how it is to go about its consideration of whether it should make one or more of the four orders referred to in s 35(2). It restates the four by placing them into two groups when it provides:
“In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of 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;
the Tribunal shall 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 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, 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.”
Section 39 recognises that an order restricting the disclosure of evidence to some or all of the parties is inconsistent with the Tribunal’s obligation to act with procedural fairness to the parties.[67] It does that by qualifying its statutory statement of part of that obligation in s 39(1):
“Subject to sections 35 … 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.”
[67] “… In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ...”: Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 at 585; 127; 347 per Mason J
Modification of s 35 of the AAT Act by s 63 of the FOI Act
As permitted by s 25(6) of the AAT Act, Parliament has modified the operation of s 35 in relation to proceedings to review decisions under Part VI of the FOI Act. It has done so in two ways. First, it has dealt with the disclosure of exempt matter contained in a document to which the proceedings relate and of the existence of information of the kind referred to in s 25(1) of the FOI Act. “Exempt matter” is “… matter the inclusion of which in a document causes the document to be an exempt document.”[68] Information of the kind referred to in s 25(1) is:
“… information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or subsection 37(1).”
[68] FOI Act, s 4(1)
Section 63(1) of the FOI Act provides that:
“In proceedings under this Part, 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).”
Section 63(1) refers to the Tribunal’s making an order under s 35(2) of the AAT Act. The exercise of its power to make an order is informed by the matters set out in s 35(3). The practical effect of s 63 is to implicitly modify that part of s 35(3), requiring the Tribunal to take as the basis of its consideration of whether to make an order under s 35(2), “… that it is desirable that … the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to … all the parties …”. It has done so by providing in s 63(2)(b) that:
“Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
(a)…
(b)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).”
Parliament has chosen to use the word “may” in s 63(2)(b) of the FOI Act. In ordinary usage, the word “may” is:
“… 1 used to express permission 2 … used to express a possibility I may come with you if I get this finished. …”[69]
[69] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
A passage from the judgment of Gummow, Hayne, Heydon and Crennan JJ in Leach v R[70] illustrates that, in some circumstances, the word “may” is regarded as giving permission or power that must be exercised and, in others, is regarded as giving permission or power that is within the decision-maker’s discretion to choose whether to exercise it or not. The context of the High Court’s consideration was s 19(5) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT). It provided that:
“The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.”
[70] [2007] HCA 3; (2007) 230 CLR 1; 232 ALR 325; 81 ALJR 598; Gleeson CJ dissenting
Their Honours concluded that the word “may” was not used to convey a discretion but to confer a power that a court was obliged to exercise once it was satisfied of the matters specified in s 19(5).[71] They referred to a passage to the same effect from the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation.[72] His Honour had considered whether the Commissioner of Taxation was obliged to allow a rebate when satisfied that certain conditions had been met as to the non-payment of dividends. As explained by Gleeson CJ and McHugh J in Samad v District Court (NSW),[73] the High Court in Finance Facilities Pty Ltd v Federal Commissioner of Taxation had decided that:
“… The context indicated that it was not intended that the Commissioner should have a discretionary power to defeat that right or entitlement. The word ‘may’ conferred a power; and the statutory intention was that the power be exercised if the condition was fulfilled. …”[74]
[71] Leach v R (2007) 232 ALR 325; 81 ALJR 598 at [37]-[38]; 17; 337; 608
[72] (1971) 127 CLR 106
[73] (2002) 209 CLR 140
[74] (2002) 209 CLR 140 at 152-153
Maintenance of the integrity and effectiveness of the AFP in this way is in the public interest. Section 40(2) requires me to have regard to other aspects of the public interest that may favour disclosure. I must do so in light of the object in s 3(1)(b) of the FOI Act. The general right of access created by that legislation is limited only by the exceptions and exemptions necessary for the protection of, among other matters, essential public interests. Therefore, the exemption under s 40(1)(c) cannot be used to justify refusal of access on a basis other than an exemption or exclusion found in the FOI Act. I am satisfied that no such attempt has been made in this case.
LJXW wants access to the information so that he can ask for the Coroner to reopen the inquest into his son’s death. He wants the Coroner to look at the AFP’s documents which, he states, were not available at the inquest. He claims that he is the only person who will pass the documents on to the Coroner as QKDP and LSHF’s mother will not do so as they want the information suppressed. LJXW argues that suppression of the documents suits the AFP but not LSHF’s “right to justice”.[271] Justice for LSHF will benefit the public. LJXW described himself as:
“… a grieving father with information to cause public concern over his sons [sic] death and the involvement of the AFP, who so far have not been investigated. i.e. Government agency withholding important information about their roll [sic] in the reasons for his death etc.”[272]
In LJXW’s view “The current coroner’s report is clearly a sham to white wash serious allegations against the AFP.”[273] The hearing should be re-opened “… to consider issues pertaining to government policy ie … [named area] Campaign.”[274]
[271] Exhibit A and B at 36
[272] Exhibit A and B at 33
[273] Exhibit A and B at 36
[274] Exhibit A and B at 24,25
Section 77 of 2008CA provides that a person may apply to the Coroners Court for an order that some or all of the findings made by a coroner after an investigation should be set aside. It makes no difference whether an inquest has been held. The Coroners Court may make an order to that effect and may re-open the investigation but only if it is satisfied that there are new facts and circumstances and that it is appropriate to do so.
I note that 1985CA, under which the coroner conducted the investigation and inquest into LSHF’s death, contained powers to summon both persons as witnesses and the production of documents.[275] Similar powers appear in 2008CA. If it were to re-open the investigation, those powers would be available to the Coroners Court. The significance of the information that LJXW says that he already has and that he has not revealed at hearing is a matter for the judgment of the Coroners Court. That is the appropriate forum in which to raise his concerns. It is the body that has both the power to re-open the investigation and, if so, to assess the wisdom in using its powers to gather further information from other sources, including the AFP.
[275] 1985CA, s 46(1)(a)
As to LJXW’s wish to obtain information regarding government policy in the named area, I am at a loss to know how he intends to use it. There are existing avenues for the scrutiny of the AFP’s operations. Some are passive. I have in mind information that the AFP is required to produce in its Annual Reports or otherwise to the Parliament and its committees. Others are active in the sense of investigations conducted by the AFP itself or by the Ombudsman or the Law Enforcement Integrity Commissioner. LJXW has not told me whether he wants to approach one of these or whether he wants to make some statement in another public arena. Were that his intention, he has not told me what he wants to achieve from it.
While I can understand that LJXW wants to know as much as he can about his son’s death, I have decided that his being given access under the FOI Act to the documents in question would not, on balance, be in the public interest. The potential adverse effect on the AFP’s operations and their proper and efficient conduct is not outweighed by the public interest in a grieving father’s being given access to his son’s personnel, service and medical records. Disclosure of the personnel, service and medical records under the FOI Act would not be subject to any restriction on its use or circulation. There are bodies, such as the Coroners Court, that have the authority to conduct an investigation into LSHF’s death. They have the tools to obtain the information, to deal with it and to take its confidential nature into consideration if they choose to investigate matters further. Disclosure under the FOI Act does not take their place and they remain bodies to which LJXW can take his concerns and the information he has already gathered. As I said, I am not satisfied that, on balance, disclosure of the matter in the documents under consideration would be in the public interest. Therefore, I have decided that the documents are exempt under s 40(1)(c).
DECISION
Having considered each of the folios and the exemptions claimed in respect of each, I have decided that the exemptions are properly claimed. For the reasons I have given, I affirm the decision of the respondent dated 22 July 2008.
I certify that the two hundred and fifty five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Dates of Hearing 12, 13 April 2010, 17 June 2010
Date of Decision 22 March 2011
Applicantunrepresented
Counsel for the respondent Ms Fiona McKenzie
Solicitor for the respondent Ms Elena Arduca
Australian Government Solicitor
Counsel for the other party Ms Margaret McAuley
“Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence of non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of section 33 or 33A or subsection 37(1).”
“The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a)…
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, 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 departments and public authorities; …
(c)…”
As now drafted, s 3 provides:
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
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