Nguyen and Child Support Registrar and Anor
[2002] AATA 177
•28 February 2002
DECISION AND REASONS FOR DECISION [2002] AATA 177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/817
GENERAL ADMINISTRATIVE DIVISION )
Re tanya nguyen
Applicant
And CHILD SUPPORT REGISTRAR
Respondent
And JAN HUIZING
Party Joined
DECISION
Tribunal Senior Member M D Allen
Date28 February 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/817
)
GENERAL ADMINISTRATIVE DIVISION )
Re: TANYA NGUYEN
Applicant
And: CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 28 February 2002
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
The Statutory Declaration of the Applicant, TANYA NGUYEN, sworn the 13th day of February 2001, is an exempt document pursuant to section 41 of the Freedom of Information Act 1982.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
Freedom of Information: Document provided to Respondent as part of a dispute between the party joined and her sister as to child support. That document could be disclosed to party joined in those proceedings, not the test when disclosure under Freedom of Information Act, disclosure to whole world.
Freedom of Information Act 1982 – sec. 4, sec 41, sec 59A, sec 61
Colakovski v ustralian Telecommunications Corporation 29 FCR 429
Re Williams and Registrar of the Federal Court 8 ALD 219
Re Wiseman and Defence Service Homes Corporation 14 ALD 301
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: (Kwai-Ling Wong)
..................................................................................……………………………….Associate
Date of Hearing 28 February 2002
Date of Decision 28 February 2002Solicitor for Applicant Mr G Neave, Harrisons the Lawyers
Representative for Respondent Ms J Cuthbert, Child Support Registrar
Representative for Party Joined Mr J Huizing, self-represented
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/817
By MR M.D. ALLEN, Senior Member
NGUYEN and CHILD SUPPORT REGISTRAR AND ANOR
SYDNEY, 28 FEBRUARY, 2002MR ALLEN: This matter concerns what is known, if somewhat colloquially, as a reverse Freedom of Information application, that is to say it is made pursuant to section 59A of the Freedom of Information Act. This being so section 61 of that Act provides that the onus of proof is upon the applicant. In this matter the applicant pursuant to an application made 12 June 2001 seeks to prevent the proposed release to the party joined of part of an affidavit lodged by her with the Child Support Registrar in proceedings between her sister, Tammy Nguyen, and the party joined.
It was conceded by the respondent that the said document should have been provided to the party joined in those particular proceedings but was not. However, I regard that matter as irrelevant to these proceedings. What must be kept in mind is that release of the document pursuant to the Freedom of Information Act 1982 is release as against the whole world. See re Williams and Registrar of the Federal Court, 8 ALD 219.
Section 41, subsection (1) of the Freedom of Information Act states:
A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person.
Personal information is defined in subsection (1) of section 4 of the Act in the following terms:
Personal information means information of an opinion whethertrue or not and whether recorded in a material form or not about an individual whose identify is apparent or can reasonably be ascertained from the information or opinion.
Referring to the earlier term of personal affairs, the Full Court of the Federal Court in Colarkovski and Australian Telecommunications Corporation, 29 FCR 429, 436, said Lockhart J:
For myself I prefer the view that the personal affairs of a person within the meaning of subsection (1) of section 41 and subsection (2) of section 12 of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, the document may contain
ngchiJ 28.2.02 P-1
©Auscript Pty Ltd 2002statements about a person's private life in the sense of his personal
life which is widely known in various sections of the community, something may be notorious. But its notoriety does not deprive it
of the character of information relating to the person's personal affairs.
In this matter the relevant information is known to the party joined by virtue of a decision of the respondent dated 19 February 2001. See document T5 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which documents contain relevant excerpts of that decision. To my mind the relevant distinction in this matter is that if documents are obtained in court proceedings by way of discovery, then those documents can only be used in the said proceedings and any attempt to use outside of those proceedings may be restrained by injunction.
Whereas release under the Freedom of Information Act is release against the whole world with no restrictions. It is perhaps unfortunate that the Freedom of Information Act does not permit a release to certain parties with restrictions. In re Wiseman and Defence Service Homes Corporation, 14 ALD 301, the Tribunal rejected an argument that disclosure by the respondent of information relating to the applicant's wife would not be unreasonable because such information would have been before the Family Court.
The Tribunal considered that the weakness in the applicant husband's argument was that evidence between a husband and wife in Family Court matters is confidential to both parties. Whereas disclosure under the Freedom of Information Act is by virtue of section 11, disclosure to the world.
Accordingly the test to be applied in determining reasonableness could not be the narrow test that must govern the resolution and disputes between husband and wife. As stated in this matter the document was created pursuant to proceeding under the Child Support Assessment Act 1989. Further in re Wiseman the Tribunal went on to say at page 304:
Whether or not the respondent was bound as a matter of law to consent to the transfer ordered by the Family Court, the wife certainly considered that she could not get full title to the matrimonial home unless she supplied this personal information to the respondent. The circumstances are analogous to those in re Corkin, 6 ALN in 224, in that they dealt with furnishing of information as a government requirement and not willingly published to the world.
ngchiJ 28.2.02 P-2
©Auscript Pty Ltd 2002To my mind similar arguments apply here and the decision under review is set aside and the Tribunal substitutes its decision, namely that the statutory declaration of Tania Nguyen sworn 13 February 2001 is an exempt document pursuant to section 41 of the Freedom of Information Act.
ngchiJ 28.2.02 P-3
©Auscript Pty Ltd 2002
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