Mercer and Aged Care Quality and Safety Commissioner
[2020] AATA 2051
•26 June 2020
Mercer and Aged Care Quality and Safety Commissioner [2020] AATA 2051 (26 June 2020)
Division:GENERAL DIVISION
File Number: 2020/0169
Re:Sofia Mercer
APPLICANT
AndAged Care Quality and Safety Commissioner
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 26 June 2020
Place:Melbourne
The Tribunal decides to order that:
by close of business on 10 July 2020, the respondent to lodge an updated Schedule of Documents claimed to be exempt under s 38 of the Freedom of Information Act 1982 as containing protected information with reference to ss 86-1 and 86-2 of the Aged Care Act1997 and ss 60(1) and (2) of the Aged Care Quality and Safety Commission Act 2018;
by close of business on 24 July 2020, the applicant will give both the Tribunal and the respondent a document setting out any argument or material she wants to put forward relevant to whether the documents she has requested contain protected information; and
by close of business on 24 July 2020, both the applicant and the respondent advise the Tribunal of any dates on which they are not available for a hearing in August, September and October 2020.
…………[sgd]……………………..
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – whether the applicant has failed to comply with Tribunal directions – whether applicant has withdrawn application – explaining why Information Commissioner is not automatically a party to the application – explaining the issues raised by the application under review and that need to be addressed by the applicant.
Legislation
Acts Interpretation Act 1901; s 19D
Administrative Appeals Tribunal Act 1975; s 30
Aged Care Act 1997; ss 86-1; 86-2(1)
Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Act 2018; s 1; s 3; Schedule 1; Schedule 2
Aged Care Quality and Safety Commission Act 2018; s 11; s 12; s 13; s 15; s 16; s 60
Australian Aged Care Quality Agency Act 2013
Freedom of Information Act 1982; s 4; s 38(1); s 54L; s 55K; s 57A; s 60
Cases
Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Merit Protection Commissioner v Nonnenmacher [1999] FCA 274; (1999) 86 FCR 112
Mullen v Aged Care Quality and Safety Commissioner [2019] FCA 1726
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
The Queen v Australian Broadcasting Tribunal: Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Secondary materials
REASONS FOR DECISION
Deputy President S A Forgie
On 9 January 2020, Ms Mercer applied to the Tribunal for review of a decision that had been made by the Australian Information Commissioner (AIC) on 18 December 2019 to affirm a decision made by the Aged Care Complaints Commissioner (ACC Commissioner) on 2 August 2018 and later varied by the Aged Care Quality and Safety Commissioner (ACQS Commissioner) on 29 August 2019. A Conference Registrar held a conference in the matter and made directions. The matter came to me because it appeared that Ms Mercer had not complied with what she had been directed to do. She strongly denied that she had not complied and also questioned the identity of the respondent and raised other matters.
I concluded that it would be best to address the issues Ms Mercer has raised by going through them from her request under the Freedom of Information Act 1982 (FOI Act) so that she can consider the matter and obtain advice if she wishes. I will direct the ACQS Commissioner to lodge an updated Schedule of Documents to reflect the documents, or parts of documents, still in issue. I have decided that the best course of action is to require the ACQS Commissioner to lodge an updated Schedule of Documents claimed to be exempt under s 38 of the FOI Act, to give Ms Mercer an opportunity to set out any arguments or material on which she relies and which is relevant to whether the documents contain protected information and proceeding to set the matter down for hearing to review the ACQS Commissioner’s decision when the parties’ availability is known.
MS MERCER’S REQUEST UNDER THE FOI ACT
On 24 May 2018, Ms Mercer made a request under the FOI Act to the ACC Commissioner for three groups of documents. They were:
“Documents Requested relate to my case reference s18/…
The documents are
●All records relating to discussion with Freemasons, the Provider particularly the Provider’s responses
●records of the Aged Care Complaints Commissioner relating to classification of my complaints
●records relating to the assessment of my complaints
●records relating to any investigations and outcomes
●records relating to resolution phase and process
Documents requested relating to my formal complaint addressed to the Aged Care Complaints Commissioner sent via email dated 23/01/2018
● records relating to the investigation of this and outcomes.
Records of responses by the Aged Care Complaints Commissioner to the Commonwealth Ombudsman
relation to my complaint to the Ombudsman re the handling of my complaints by Aged Care Complaints Commissioner.My Commonwealth Ombudsman’s reference re this complaint is 2018-…”[1]
[1] Documents lodged in the Tribunal as required by s 37(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents); T3 at 19
ACC COMMISSIONER’S DECISION ON MS MERCER’S REQUEST
On 22 June 2018, the Director of the Assurance, Review and FOI Section of the ACC Commissioner advised Ms Mercer of the decision made in response to her request. The Director noted that Ms Mercer had agreed to exclude blank pages and correspondence she had sent to the ACC Commissioner from the scope of her request. The three parts of Ms Mercer’s request were numbered 1, 2 and 3 and the ACC Commissioner’s decision was:
“In relation to parts 1 and 2 of your FOI request, there are 47 relevant documents. I have decided to release 19 documents, and partially release 29 documents to you. I have decided to exempt one document from release.
Where I have decided not to give you access, this is because part or all of the document contains exempt information under the FOI Act.
We found one document relevant to part 2 of your request. It is stored in our electronic case management system as part of case reference S18/006087, and as such we have given you parts 1 and 2 as a combined attachment of documents. They are at Attachment D.
In relation to part 3 of your FOI request, we searched for records of responses to the Commonwealth Ombudsman in relation to your complaint to the Ombudsman regarding the handling of your complaints by the Aged Care Complaints Commissioner. No documents relating to this request exist in our records, and so my decision is to refuse your request for access to documents under 23A(1) of the FOI Act.”[2]
[2] T documents; T9 at 37
The detailed reasons for the Director’s decision were set out in Attachment A. Where exemption was claimed, it was claimed under s 38(1) of the FOI Act with reference to s 86-2(1) of the Aged Care Act 1997 (Aged Care Act). A description of the documents was given in Attachment B and Ms Mercer was advised of her review rights in Attachment C.
MS MERCER’S APPLICATION FOR INTERNAL REVIEW OF THE ACC COMMISSIONER’S DECISION
On 4 July 2018, Ms Mercer applied to the ACC Commissioner for internal review of its decision on her request for access. The Assistant Commissioner, Governance, Education and Strategy at the ACC Commissioner wrote to Ms Mercer on 2 August 2018 advising her that, except for one document to which it gave her access, the ACC Commissioner had confirmed its decision dated 22 June 2018. The letter was structured in the same way as the original decision and also included Attachment D, which included copies of the documents to which it had granted access.[3]
[3] T documents; T14 at 55-71
MS MERCER’S APPLICATION TO THE AIC FOR REVIEW OF THE ACC COMMISSIONER’S DECISION
On 28 September 2018, Ms Mercer applied to the Information Commissioner for review of the ACC Commissioner’s internal review decision (IC review). She did so under s 54L of the FOI Act. The Information Commissioner understood Ms Mercer to be questioning whether there were further documents, which fell within the scope of her request but which had not been identified by the ACC Commissioner, and contending that the documents, for which exemption had been claimed by the ACC Commissioner, were not exempt.
ACC COMMISSIONER REPLACED BY THE AGED CARE QUALITY AND SAFETY COMMISSIONER
With effect from 1 January 2019, the ACC Commissioner ceased to exist and was replaced by the ACQS Commissioner. The position of the ACC Commissioner had been created by Division 95A of Part 6.6 of the Aged Care Act. That position was abolished by the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Act 2018 (ACQSC Transitional Act) when it repealed Part 6.6 of the Aged Care Act.[4] The ACQSC Transitional Act also abolished the Australian Aged Care Quality Agency (AACQA), which had been established under s 7 of the Australian Aged Care Quality Agency Act 2013 (AACQA Act).[5]
[4] ACQSC Transitional Act; s 3 and Schedule 1; Item 16
[5] ACQSC Transitional Act; s 3 and Schedule 1; Item 1
In place of the ACC Commissioner and the AACQA, Parliament established a single body known as the Aged Care Quality and Safety Commission (ACQSC). It did so under the Aged Care Quality and Safety Commission Act 2018 (ACQSC Act).[6] The function of that Commission is to assist the ACQS Commissioner established under s 15. The functions of the Commissioner are set out in s 16(1):
[6] ACQSC Act; ss 11-13
“(a) to protect and enhance the safety, health, well-being and quality of life of aged care consumers;
(b) to promote the provision of quality care and services by:
(i) approved providers of aged care services; and
(ii) service providers of Commonwealth-funded aged care services;
(c) the consumer engagement functions;
(d) the complaints functions;
(e) the regulatory functions;
(f) the education functions;
(g) such other functions as are conferred on the Commissioner by:
(i) this Act or the rules; or
(ii) the Aged Care Act or the Aged Care Principles; or
(iii) any other law of the Commonwealth;
(h) if the Commissioner considers it is appropriate to do so in particular circumstances—to seek and consider clinical advice that is relevant to the performance of any of the above functions;
(i) to provide, at the request of the Minister, advice to the Minister in relation to any of the above functions;
(j) to do anything incidental or conducive to the performance of any of the above functions.”
I note, in particular s 16(1)(iii), which provides that the ACQS Commissioner has such other functions as are conferred by any other law of the Commonwealth. Another law of the Commonwealth that confers functions on the ACQS is the FOI Act. It does so because, under the FOI Act, the ACQS Commissioner is a prescribed authority, and therefore an agency, within the meaning of s 4(1) of the FOI Act. That comes about because an “agency” means “… a Department, prescribed authority or a Norfolk Island authority.” The ACQS Commissioner is clearly neither a Department[7] nor a Norfolk Island authority. Only paragraph (c) of the definition of a “prescribed authority” is relevant i.e. “subject to subsection (3), the person holding or performing the duties of, an office established by an enactment or an Order-in-Council”. The ACQS Commissioner does not hold or perform the duties of a prescribed office and so is not excluded from the definition of a “prescribed authority” by s 4(3). Therefore, the ACQS Commissioner is an agency for the purposes of the FOI Act and is subject to its terms.
[7] A “Department” is defined in s 4(1) of the FOI Act as “… a Department of the Australian Public Service that corresponds with a Department of State of the Commonwealth”.
Ms Mercer did not make her request for access to documents to the ACQS Commissioner but to the ACC Commissioner. The ACQSC Transitional Act made provision for what was to happen to those things done by the ACQS Commissioner before 1 January 2019 under the Aged Care Act when it provided:
“If, before the transition time, a thing was done by, or in relation to, the Complaints Commissioner for the purposes of the Aged Care Act, then the thing has effect, after that time, as if it had been done by, or in relation to, the Quality and Safety Commissioner for the purposes of the Quality and Safety Commission Act.”[8]
[8] ACQSC Transitional Act; s 3 and Schedule 2; Item 2(2)
Provision is also made for proceedings in a court or tribunal to which the ACQS Commissioner was a party:
“If any proceedings to which the Complaints Commissioner is a party are pending in any court or tribunal immediately before the transition time, the Quality and Safety Commissioner is substituted for the Complaints Commissioner, from that time, as a party to those proceedings.”
As at 1 January 2019, there were no proceedings in the Tribunal for the AIC was yet to make a decision regarding Ms Mercer’s application for review. Therefore, Item 9(2) of Schedule 2 of the ACQSC Act had no effect. That raises Ms Mercer’s question: how does the ACQS Commissioner come to have a role?
The answer lies partly in the ACQSC Transitional Act and partly in the FOI Act. Item 6 of Schedule 2 of the ACQSC Transitional Act provides:
“(1) This item applies to any records or documents that were in the possession of the following immediately before the transition time:
(a) the CEO;
(b) the Quality Agency;
(c) the Complaints Commissioner;
(d) an APS employee of the Department who, before that time, was assisting the Complaints Commissioner in the performance of the Commissioner’s functions under the Aged Care Act.
(2) The records and documents are to be transferred to the Quality and Safety Commissioner after the transition time.
Note: The records and documents are Commonwealth records for the purposes of the Archives Act 1983.”
The “transition time” was the commencement of the ACQSC Act i.e. 1 January 2019.[9] All of the ACC Commissioner’s documents became those of the ACQS Commissioner on that day. Under the FOI Act, the ACQS Commissioner was, from 1 January 2019, an “agency” and its documents subject to access under that legislation. The decisions made by the ACC Commissioner under the FOI Act up until 1 January 2019 in relation to Ms Mercer’s request for access to the documents, which had transferred to the ACQS Commissioner, remained valid and continued in effect after that day. This is the effect of s 19D of the Acts Interpretation Act 1901. From 1 January 2019, the ACQS Commissioner became the decision-maker in respect of the documents formerly held by the ACC Commissioner and had both its powers and obligations under the FOI Act.
[9] ACQSC Act; s 1; Item 1
ACQS COMMISSIONER VARIES DECISION PREVIOUSLY MADE BY ACC COMMISSIONER
On 29 August 2019, the ACQSC exercised its powers under s 55G of the FOI Act to vary the decision previously made by the ACC Commissioner. It was entitled to do that during the IC review because the effect of the variation was to give Ms Mercer access to some information that had previously been redacted by the ACC Commissioner. As a result of that decision, Ms Mercer advised that she did not seek personal information relating to ACQSC’s employees and any claim for exemption under s 47F was no longer in issue.
INFORMATION COMMISSIONER’S DECISION
After considering the material and exercising her powers under s 55K of the FOI Act, the IC affirmed the decision made by the ACC Commissioner on 2 August 2018 and varied by the ACQS Commissioner on 29 August 2019.
MS MERCER’S APPLICATION FOR REVIEW OF THE IC’S DECISION
As she was entitled to do under s 57A of the FOI Act, Ms Mercer made an application to the Tribunal for review of the IC’s decision. She did so on 9 January 2020.
Ms Mercer has questioned the Tribunal’s reference to the ACQSC as the respondent and not the IC. The ACQS Commissioner is shown as the respondent to the application because it is a party to the proceedings that were instituted by Ms Mercer’s application. It is a party and the IC is not a party because Parliament has chosen that it will be so. Parliament made that choice in s 60 of the FOI Act. Sections 60(1) and (3) provide:
“(1) This section applies for the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in relation to the proceedings under this Part.
(2)…
(3)The parties to a proceeding before the Tribunal for a review of a decision are as follows:
(a)the person who applied to the Tribunal for a review of the decision under section 57A;
(b)the person who made the request or application in respect of which the decision was made;
(c)the principal officer of the agency, or the Minister, to whom the request or application was made;
(d)any other person who is made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.”
Ms Mercer is the person who meets the descriptions given in ss 60(3)(a) and (c). The ACQS Commissioner is the person coming within s 60(3)(d) because Ms Mercer made her request to the ACQS Commissioner’s predecessor, the ACC Commissioner. Therefore, Ms Mercer and the ACQS Commissioner are parties to the proceeding. The only way in which the IC would be a party to the proceedings would occur if she were to apply to the Tribunal under s 30(1A) of the AAT Act to be made a party and the Tribunal had ordered that she be made a party.[10] The IC has not made an application under s 30(1A). In the absence of the IC’s making an application, I cannot make an order one way or the other.
[10] AAT Act; s 30(1)(d)
I understand that Ms Mercer does not regard the ACQSC as having any role in the proceedings. As I have said, however, it is the ACQSC which currently has possession of the documents she has requested. It is the agency with responsibilities under the FOI Act and best placed – and indeed the only agency in a position – to put forward the information or evidentiary matter to enable the Tribunal to reach the correct or preferable decision. The IC has information gathering powers under Division 8 of Part VIII of the FOI Act while conducting the IC review. Even if the IC had applied to be made a party and I had made an order joining her as a party, she would not have those powers in the Tribunal’s review of the decision. She would not have the documents or the power to make decisions in relation to them.
I would note that it is most unusual to join a review body, such as the IC, as a party to a proceeding in the Tribunal. This follows from the principles stated by the High Court in The Queen v Australian Broadcasting Tribunal: Ex parte Hardiman[11] (Hardiman):
“ There is one final matter. Mr Hughes was instructed by the [Australian Broadcasting] Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is a risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”[12]
[11] [1980] HCA 13; (1980) 144 CLR 13; Gibbs, Stephen, Mason, Aickin and Wilson JJ
[12] [1980] HCA 13; (1980) 144 CLR 13 at 35-36
In some instances, this might lead to there being no “contradictor” but this is not such a case. That is to say, there is “… someone presently existing who has a true interest to oppose the declaration sought.”[13] That person is the ACQS Commissioner. Section 60(3) of the FOI Act has clearly been drafted with the principles of Hardiman in mind. For the reasons I have given, the ACQS Commissioner has the documents and the powers of a decision-maker under the FOI Act. There is no role for the IC to play in this matter.
[13] Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin cited with approval by Gibbs J in Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437- 438. In Merit Protection Commissioner v Nonnenmacher [1999] FCA 274; (1999) 86 FCR 112 at [12]; 116; Beaumont, Lee and Dowsett JJ explained: “This rule was designed to ensure that merely theoretical questions or requests for advisory opinions were not brought to the court under the guise of applications for declarations. The intention was to ensure that any issue brought for adjudication would relate to a genuine dispute. The term ‘contradictor’ describes the person with whom the applicant for relief is in dispute. That person must be joined in the proceedings as a party thereto, but it is not necessary that he or she attend to resist the application. If he or she does not do so, a binding order may still be made. The requirement for a ‘contradictor’ is not designed to secure actual opposition. …”
ISSUES CURRENTLY IDENTIFIED AS IN DISPUTE
As matters stand currently, the issues currently in dispute between Ms Mercer and the ACQSC are:
(1)whether the ACQSC has taken all reasonable steps to find documents coming within the terms of Ms Mercer’s request to the ACC Commissioner;
(a)whether part of the request could be refused under s 24A of the FOI Act;
(2)whether the documents, or parts of documents, for which the ACQSC claims exemption under s 38 of the FOI Act contain protected information within the meaning of s 60(2) of the ACQSC Act.
DIRECTIONS ISSUED BY CONFERENCE REGISTRAR
Following a conference she held, a Conference Registrar made the following direction dated 20 March 2020:
“1. That the Respondent complies with the Practice Direction dated 12 April 1985 relating to the Freedom of Information Act 1982 except as far as:
(i)On or before 24 April 2020 the Respondent give to the Tribunal and the Applicant an affidavit or affidavits setting out the evidence to be relied upon in support of claims of exemption;
(ii)On or before 24 April 2020 the Respondent give to the Tribunal and the Applicant a schedule of the documents to which the claims of exemption related; and
(iii)On or before 24 April 2020 the Respondent give to the Tribunal and the Applicant a Statement of Facts and Contentions.
2.On or before 15 May 2020 the Applicant give to the Tribunal and the Respondent a Statement of Facts and Contentions (that is a written summary of the facts and arguments the Applicant relies on to support the view that the decision under review is not correct).”
The ACQS Commissioner’s solicitor, the Australian Government Solicitor (AGS), gave Ms Mercer and the Tribunal a Statement of Facts and Contentions and Supplementary Section 37 documents in response to paragraph 1 of the direction. It did so on 24 April 2020. A Schedule of Documents was not included in the document but I note that a Schedule was included at T10 of the T documents given to Ms Mercer at an earlier time.
On 27 April 2020. Ms Mercer wrote the following letter to the Tribunal and copied it to the AGS:
“In response to recent email and attached documents sent to me from the Government Solicitor dated and following the telephone conference date. I now submit the following to AAT, cc to Government Solicitor.
I refer to Mr Mullen’s case, his case has been relied /cited upon by both FOI Commissioner and the Government solicitor (foot note)
I believe that there are many similarities between Mr Mullen’s case and my case. Mr Mullen and myself had complaints re an aged care Provider in regard to our mothers. We both sought help from:
1.The ACCC- Aged Care Complaints Commission
2.The Commonwealth Ombudsman
3.FOI Commission
4.AAT
Mr Mullen went onto the Federal Court after being encouraged / advised to accept only one respondent. This proved to be a fatal error that cost him a potential judgement in his favour and an order for costs against him.
The substance of my request for review by the AAT has not been addressed, instead it has been reduced to an exercise to apply the FOI legislation to trivia and to exclude the FOI commissioner as a respondent. I cannot understand this situation, it is bonkers bananas for to me after three years of travelling the age care complaints journey to continue with any hearing at AAT and I advise that wish to cease any further participation in an AAT hearing. I have decided to send the file to Aged Care Royal Commission in the hope they make recommendations that this type of injustice to others in future.”
A directions hearing was listed on the basis that Ms Mercer had not complied with the Conference Registrar’s directions. Failure to comply with a direction made by the Tribunal[14] in relation to the application gives the Tribunal power to dismiss the application without proceeding to a review.[15] At that directions hearing, Ms Mercer strongly rejected what she described as an “allegation” that she had not complied with the directions. The first issue was whether she had. I can see that she would take the view that she has done so by referring to Mullen v Aged Care Quality and Safety Commissioner[16] (Mullen) in her letter. She sees the similarities in their both having made complaints regarding an aged care provider.
[14] The “Tribunal” includes in this context, “… a member, or an officer of the Tribunal, exercising powers of the Tribunal.”: AAT Act; paragraph (c) of definition of “Tribunal” in s 3(1). Section 33(2) includes among those who may give directions an “authorised officer”. The Conference Registrar is an authorised officer as she has been authorised by the President under s 59B of the AAT Act for the purposes of s 33(2).
[15] AAT Act; s 42A(5)
[16] [2019] FCA 1726; Banks-Smith J
From another point of view, however, Ms Mercer has not complied with the direction to give a written summary of the facts and arguments on which she relies to support her view that the decision under review is not correct. She has not put forward any material suggesting that the ACQSC has not taken all reasonable steps to find documents coming within the terms of her request to the ACC Commissioner. She has not put forward any material or argument as to why the documents, or parts of documents, for which the ACQSC claims exemption under s 38 of the FOI Act do not contain protected information within the meaning of s 86-2(1) of the Aged Care Act.
In so far as it is relevant, s 38 of the FOI Act provides:
“Subject to subsection (1A), a document is an exempt document if:
(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b)either:
(i)that provision is specified in Schedule 3; or
(ii)…”
Section 86-2(1) of the Aged Care Act is specified in Schedule 3 and so too are ss 60(1) and 62 of the ACQSC Act. Substantively, they are enacted in similar terms with ss 60(1) and 62 coming into effect on and from 1 January 2019. I will set them out side by side:
Aged Care Act
ACQSC Act
Section 86-2(1):
“A person commits an offence if:
(a) the person makes a record of, discloses or otherwise uses information; and
(b) the information is *protected information; and
(c) the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act or the Aged Care (Transitional Provisions) Act 1997.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.”
Section 60(1)
“A person commits an offence if:
(a) the person obtains information in the course of performing functions, or exercising powers, under or for the purposes of this Act or the rules; and
(b) the information is protected information; and
(c) the person:
(i) makes a record of the information; or
(ii) uses the information; or
(iii) discloses the information to another person.
Penalty: Imprisonment for 2 years.”
Section 86-1
“In this Part, protected information is information that:
(a) was acquired under or for the purposes of this Act or the Aged Care (Transitional Provisions) Act 1997; and
(b) either:
(i) is *personal information; or
(ii) relates to the affairs of an approved provider; or
(iv) relates to the affairs of an applicant for a grant under Chapter 5.”
Section 60(2)
“Protected information is information acquired under, or for the purposes of, this Act or the rules that:
(a) is personal information; or
(b) relates to the affairs of an approved provider or a service provider of a Commonwealth-funded aged care service; or
(c) relates to the affairs of an applicant for approval under section 63B.”
Item 7(1)(b) of Schedule 2 of the ACQSC Transitional Act applies to information that was, immediately before the transition time, protected information within the meaning of the Aged Care Act and related to the functions of the ACC Commissioner.[17] Item 7(2) provides that:
“For the purposes of the Quality and Safety Commission Act, the information is taken, after the transition time, to be protected information within the meaning of that Act.”
[17] ACQSC Transitional Act; s 3; Schedule 2, Item 7(1)(b)
For the purposes of this case, the practical effect of Item 7 is that, whether or not information is protected information, must be assessed by reference to the characterisation of the information. In this case, Ms Mercer has requested access to documents before the transition time, which was 1 January 2019. The issue is whether it was, immediately before that time, protected information within the meaning of the Aged Care Act and related to the functions of the ACC Commissioner. That means that it must be assessed by reference to ss 86-2(1) and 86-1. If it is protected information, it will also be taken to be protected information within the meaning of the ACQSC Act by virtue of Item 7(2) of the ACQSC Transitional Act even though protected information will be taken to be protected information within the meaning of ss 60(1) and (2) of the ACQSC Act. The characterisation will not be undertaken by reference to ss 60(1) and (2) of the ACQSC Act. Characterisation under those provisions will be relevant only in relation to information gathered after 1 January 2019. Whether taken to come within ss 60(1) and (2) of the current legislation or s 86-1 and s 86-2 of the Aged Care Act, information that is protected information will be exempt under s 38.
It may not be in Ms Mercer’s power to provide any information. That this may be so is reflected in the onus placed on the agency to whom the request was made by s 61(1)(b) of the FOI Act to establish that the decision is justified. Even though that onus is placed on, in this case, ACQSC, it is an applicant’s own interests to put forward evidentiary material or arguments that are relevant to the review. That is the reason b23ehind the Conference Registrar’s direction in this matter.
Although Ms Mercer’s letter might be read from some perspectives as a withdrawal, I did not read it as such. I did not do so for a withdrawal would have had the immediate effect that that Tribunal would have been taken to have dismissed her application without proceeding to review the decision.[18] It seemed to me that Ms Mercer wanted to continue the matter. I continued to have that view at the directions hearing where she raised the issues that I have addressed above and suggested that she was being bullied into a withdrawal. Her issues included her concern that the IC was not present. She said that it had never been her intention that the IC be excluded from the review process. I have explained why that is so and also addressed her concern that the ACQSC is a party to the proceeding and not the IC or the ACC Commissioner.
[18] AAT Act; s 42A(1B) referring to s 42A(1A)
THE WAY FORWARD
I will give both Ms Mercer and the ACQSC an opportunity to consider the best way forward but, on the material I currently have, I have decided that the best way is as follows:
(1)by close of business on 10 July 2020, the respondent lodge an updated Schedule of Documents claimed to be exempt under s 38 of the Freedom of Information Act 1982 as containing protected information with reference to ss 86-1 and 86-2 of the Aged Care Act1997 and ss 60(1) and (2) of the Aged Care Quality and Safety Commission Act 2018;
(2)by close of business on 24 July 2020, the applicant gives both the Tribunal and the respondent a document setting out any argument or material she wants to put forward relevant to whether the documents she has requested contain protected information; and
(3)by close of business on 24 July 2020, both the applicant and the respondent advise the Tribunal of any dates on which they are not available for a hearing in August, September and October 2020.
| I certify that the preceding 36 paragraphs (36) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
..............[sgd].......................................................
Associate
Date of decision: 26 June 2020
| Heard: | 4 June 2020 |
Applicant: | Self represented |
Respondent’s solicitor: | Ms Laura Butler Australian Government Solicitor |
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