Nurses And Midwives Board Of Western Australia and Watson
[2008] WASAT 59
•11 MARCH 2008
NURSES AND MIDWIVES BOARD OF WESTERN AUSTRALIA and WATSON [2008] WASAT 59
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 59 | |
| NURSES AND MIDWIVES ACT 2006 (WA) | |||
| Case No: | VR:205/2007 | 26 FEBRUARY 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 10/03/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for order for production is dismissed | ||
| A | |||
| PDF Version |
| Parties: | NURSES AND MIDWIVES BOARD OF WESTERN AUSTRALIA KATHLEEN ANNE WATSON |
Catchwords: | Production of audiovisual recording of interview document Power of the State Administrative Tribunal to order production against non-party under s 35 State Administrative Tribunal Act 2004 (WA) Whether document "protected matter" Whether power to order production limited by s 120 Criminal Investigation Act 2006 (WA) Whether State Administrative Tribunal a "court" for purposes of s 120 Criminal Investigation Act 2006 (WA) |
Legislation: | Criminal Investigations Act 2006 (WA), Part 11, s 115, s 117, s 118, s 119, s 120, s 121, s 122, s 123, s 124 Freedom of Information Act 1992 (WA), s 8(1), s 8(2), Sch 1 cl 3, Sch 1 cl 5 Nurses and Midwives Act 2006 (WA), s 49(b) State Administrative Tribunal Act 2004 (WA), s 3(1), s 35, s 159(4) |
Case References: | Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 Attorney General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Commonwealth v Wood (2006) 148 FCR 276 Forge v Australian Securities and Investments Commission [2006] HCA 44 Horsman v Commissioner of Police [2002] WASC 81 Stanley v Layne Christensen Company [2004] WASCA 50 Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77 |
Orders | 1. The application of the Nurses and Midwives Board of Western Australia for an order requiring the Commissioner of Police to produce an audiovisual recording of interview with the respondent nurse made in September 2007 as part of a criminal investigation is dismissed.,2. The order made on 2 November 2007 for non-publication of the respondent's name is discharged. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : NURSES AND MIDWIVES ACT 2006 (WA) CITATION : NURSES AND MIDWIVES BOARD OF WESTERN AUSTRALIA and WATSON [2008] WASAT 59 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 26 FEBRUARY 2008 DELIVERED : 11 MARCH 2008 FILE NO/S : VR 205 of 2007 BETWEEN : NURSES AND MIDWIVES BOARD OF WESTERN AUSTRALIA
- Applicant
AND
KATHLEEN ANNE WATSON
Respondent
Catchwords:
Production of audiovisual recording of interview document - Power of the State Administrative Tribunal to order production against non-party under s 35 State Administrative Tribunal Act 2004 (WA) - Whether document "protected matter" - Whether power to order production limited by s 120 Criminal Investigation Act 2006 (WA) - Whether State Administrative Tribunal a "court" for purposes of s 120 Criminal Investigation Act 2006 (WA)
(Page 2)
Legislation:
Criminal Investigations Act 2006 (WA), Part 11, s 115, s 117, s 118, s 119, s 120, s 121, s 122, s 123, s 124
Freedom of Information Act 1992 (WA), s 8(1), s 8(2), Sch 1 cl 3, Sch 1 cl 5
Nurses and Midwives Act 2006 (WA), s 49(b)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 35, s 159(4)
Result:
Application for order for production is dismissed
Category: A
Representation:
Counsel:
Applicant : Mr L Buchbinder
Respondent : Mr MJ Lourey
Solicitors:
Applicant : Bowen BuchbinderVilensky
Respondent : Champans
Case(s) referred to in decision(s):
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Attorney General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Commonwealth v Wood (2006) 148 FCR 276
Forge v Australian Securities and Investments Commission [2006] HCA 44
Horsman v Commissioner of Police [2002] WASC 81
Stanley v Layne Christensen Company [2004] WASCA 50
Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77
(Page 3)
Summary of Tribunal's decision
1 The Tribunal dismissed an application by the Nurses and Midwives Board of Western Australia for an order under s 35 of the State Administrative Tribunal Act 2004 (WA) requiring the Commissioner of Police to produce an audiovisual recording of interview with the respondent nurse, on the basis that the State Administrative Tribunal's powers to order production were, in the circumstances, limited by s 120 of the Criminal Investigation Act 2006 (WA).
Issue
2 The issue the subject of this decision is whether the State Administrative Tribunal (Tribunal) has power under s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to order the Commissioner of Police (Commissioner) to produce a document, namely an audiovisual recording of an interview of the respondent nurse, to the Tribunal having regard to the terms of s 120 of the Criminal Investigation Act 2006 (WA) (CI Act) which restricts the possession and playing of an audiovisual recording of an interview made by a police officer.
Circumstances in which the issue arises
3 By application dated 11 October 2007, the Nurses and Midwives Board of Western Australia (Board) commenced disciplinary proceedings against the respondent nurse alleging:
"That on or about 11 September 2007, whilst employed as a Registered Nurse at Royal Perth Hospital, Kathleen Anne Watson did remove from Royal Perth Hospital stock, one 10 mg ampoule of liquid Diazepam, which may amount to carelessness and/or incompetence, and/or improper conduct as a nurse pursuant to s 49(b)(i), and/or s 49(b)(ii), and/or s 49(b)(iii) of the Nurses and Midwives Act 2006."
4 The application remains to be determined in the Tribunal. In order to assist it in proving its allegation, the Board have applied to the Tribunal for an order that the Commissioner, who is not a party to the proceeding, produce to the Tribunal for access by the Board an audiovisual recording of an interview with the respondent nurse conducted in or about September 2007 by the police, following which the respondent was charged by the police with stealing.
(Page 4)
5 There is no dispute between the parties to these proceedings that the police made such an audiovisual record of interview.
6 The information currently before the Tribunal suggests that in or about September 2007 a police officer or police officers interviewed the respondent nurse who during that interview made admissions concerning the taking of medications from Royal Perth Hospital, being one 10 milligram ampoule of liquid Diazepam from hospital stock.
7 The respondent nurse was charged with stealing by police soon after that interview, but the charge was later dismissed (with the Commissioner ordered to pay the accused's costs) when prosecuting police accepted the accused's submission that there was no admissible evidence in existence capable of satisfying a Court that the charge could succeed.
8 Notwithstanding the dismissal of the charge, the Board believes the record of interview is relevant to the proof of the disciplinary complaint now brought by the Board against the nurse.
9 For that reason, the Board seeks the production to the Tribunal by the Commissioner of the audiovisual recording of the interview.
The question of relevance
10 There is little doubt that before the Tribunal will make an order under s 35 of the SAT Act, it must be satisfied that the document is relevant to the proceedings. It is clear that the power to order production cannot be used as part of a 'fishing expedition' on the part of an applicant. Nor can it be utilised for a purpose collateral to the main object of the proceedings. However, the Tribunal is not obliged to embark on a preliminary inquiry into the evidence: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 374 (Apache).
11 In that context, the primary question to be asked by the Tribunal is whether the party seeking the order for the production of a document has a "legitimate forensic purpose" for seeking production: Apache; Stanley v Layne Christensen Company [2004] WASCA 50 at [9].
12 There can be little doubt, subject to any further consideration of questions of privilege and the power of the Tribunal to make an order under s 35 of the SAT Act, in the full circumstances of this case, that on the face of it the audiovisual recording of interview held by the Commissioner is relevant to the disciplinary proceedings. To state the obvious, from what is known of the subject of the audiovisual recording of interview, the interview bears directly on the allegation made in the disciplinary proceedings against the nurse in this Tribunal.
(Page 5)
Questions of privilege and public interest
13 Section 35(2) of the SAT Act provides that the Tribunal may order a person to produce a document despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
14 Legal professional privilege does not arise in this case, but a question may exist whether there is an arguable public interest in relation to the production of documents. The public interest in a case such as this may be whether a document or materials held by the Commissioner in relation to a prior criminal investigation attracts protection, under the general law on the ground of public interest, such that it should not be given to the Tribunal, or the Tribunal should not order production in connection with the disciplinary proceedings in the Tribunal.
15 A related issue arises under s 35(3) of the SAT Act, which provides that the Tribunal cannot order a person to produce a document "to a party", as distinct to the Tribunal, if the Tribunal considers that the document contains "protected matter". The Tribunal could, in such circumstances, still regard the document.
16 "Protected matter" is defined by s 3(1) of the SAT Act to mean:
"(a) any information or document to which a certificate under section 159(2) applies, except to the extent that an order of the Tribunal under section 159(4) that its disclosure would not be contrary to the public interest has effect; or
(b) exempt matter or an exempt document.'
17 In this case, there is no certificate under s 159(4) of the SAT Act. The expressions "exempt matter" and "exempt document" are defined by s 3(1) SAT Act. The definition of "exempt document" refers to "exempt matter". The definition of "exempt matter" requires consideration of whether a matter is exempt under Sch 1 to the Freedom of Information Act 1992 (WA) (FOI Act).
18 Schedule 1 of the FOI Act exempts a number of matters from disclosure. The first clause of Sch 1 of apparent relevance in the present case is cl 5 dealing with "law enforcement, public safety and property security". The cl 5 exemption is stated in these terms:
(Page 6)
- "(1) Matter is exempt matter if its disclosure could reasonably be expected to -
(a) impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law;
(b) prejudice an investigation of any contravention or possible contravention of the law in a particular case, whether or not any prosecution or disciplinary proceedings have resulted;
(c) enable the existence, or non-existence, or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be discovered;
(d) prejudice the fair trial of any person or the impartial adjudication of any case or hearing of disciplinary proceedings;
(e) endanger the life or physical safety of any person;
(f) endanger the security of any property;
(g) prejudice the maintenance or enforcement of a lawful measure for protecting public safety; or
(h) facilitate the escape of any person from lawful custody or endanger the security of any prison.
(2) Matter is exempt matter if it was created by -
(a) the Bureau of Criminal Intelligence, Protective Services Unit, Witness Security Unit or Internal Affairs Unit of the Police Force of Western Australia; or
(b) the Internal Investigations Unit of Corrective Services.
(3) Matter is exempt matter if it originated with, or was received from, a Commonwealth intelligence or security agency."
(Page 7)
19 Clauses 5(4) and 5(5), on the facts here, are not relevant.
20 In circumstances where the police initially charged, but then declined to prosecute and consented to the dismissal of the charge against the respondent nurse, I do not consider that any of the exempt matter categories in cl 5(1) apply to the audiovisual recording of interview held by the Commissioner. In particular, in the circumstances of this case, it cannot be said that the disclosure of the recording of interview could prejudice the investigation of any contravention or any possible contravention of the law in a particular case, to which cl 5(1)(b) refers. This is because the Commissioner has already, through his officers, decided there is no contravention of the law and, in any event, has consented to the dismissal of the criminal proceedings against the respondent. There is no investigation therefore of any contravention or possible contravention of the law in this particular case to prejudice. In my opinion, cl 5(1)(b) speaks to the time at which disclosure of a document is requested under the FOI Act, not to some past time before the decision not to prosecute was taken.
21 There is, however, a further exemption under cl 3 in respect of personal information that is potentially relevant. Matter is exempt under cl 3(1) if its disclosure "would reveal personal information about an individual (whether living or dead)". Any request by the Board for the disclosure of the audiovisual recording of interview with the respondent nurse would attract this personal information exemption. However, cl 3(6) provides that matter is not exempt matter under subclause (1) if its disclosure would, on balance, be in the public interest.
22 The Tribunal holds the view, for the purposes of s 35(3) of the SAT Act, that while the disclosure of the recording ought to be said to reveal personal information about an individual (the respondent), its disclosure would, on balance, be in the public interest. In the Tribunal's view, the public interest is that information obtained by the police in the course of a criminal investigation, a criminal investigation that concerned the respondent's conduct or possible conduct as an employee in her profession as a nurse, could be of direct relevance to the disciplinary proceedings in the Tribunal.
23 Under the Nurses and Midwives Act 2006 (WA), the Board has the responsibility to ensure, in the public interest, that nurses and midwives uphold appropriate professional standards. The police have investigated a matter concerning the nurse in which initially the nurse was alleged to have removed drugs without permission from a hospital at which she was employed. On that basis, in my opinion, it would plainly be in the public interest for the Board to
(Page 8)
- have access to that information for the purposes of prosecuting disciplinary proceedings in the Tribunal under the Nurses and Midwives Act 2006. For that reason, the Tribunal holds the view that the disclosure of the audiovisual recording document would, on balance, be in the public interest for the purposes of cl 3(6) of Sch 1 to the FOI Act.
24 Accordingly, I do not consider that s 35(3) in this case would prevent disclosure of the audiovisual recording of interview to a party. In any event, the material would remain accessible to the Tribunal even if it were "protected matter", assuming the Tribunal has the power to order its production.
25 The FOI Act protected matter provisions incidentally assist with an assessment of the public interest considerations that might otherwise arise in a case such as the present. One can understand that, for the purposes of s 35(2) of the SAT Act, the production of the document provided to the Tribunal or to a party might be considered not to be in the public interest where it might prejudice an ongoing criminal inquiry, whether or not disciplinary proceedings have resulted. In this case, however, there are no ongoing investigations and there is no other reason of public interest, to my mind, that would be prejudiced if the audiovisual recording of interview were now to be produced to the Tribunal. Rather, the public interest in seeing the disciplinary proceedings in the Tribunal properly concluded would outweigh any perceived prejudice in an interview initially conducted for criminal investigation purposes being made available for civil proceedings involving the respondent nurse.
Criminal Investigation Act 2006 restrictions
26 The CI Act is an Act to provide powers for the investigation or prevention of offences and for related matters. Part 11 deals with interviewing suspects. An "interview" means an interview with a suspect by a police officer or a Crime and Corruption Commission (CCC) officer or any part of such an interview: s 115.
27 Section 117 provides that if an audiovisual recording is made of an interview and the suspect is charged with an offence to which the interview relates, a copy of the recording must be made available to the suspect or the suspect's lawyer within 14 days.
28 Section 118 makes provision for an admission not to be admissible in a serious case unless recorded.
(Page 9)
29 Section 119 enables a jury to play the recording during its deliberations in a criminal trial.
30 Section 120 of the CI Act then provides as follows:
"(1) In this section -
'authorised person' means any of the following, acting in the course of duty -
(a) a police officer;
(b) a person authorised for the purposes of this Part by the Commissioner of Police;
(c) the DPP or a person acting under the authority of the DPP;
(d) a lawyer acting for or representing the State;
(e) a CCC officer;
(f) the Parliamentary Inspector;
(g) an ombudsman officer;
(h) a court or a person acting at the direction of a court;
(i) a coroner or a person acting at the direction of a coroner;
(j) a person prescribed to be an authorised person.
(2) A person who is in possession of an audiovisual recording of an interview commits an offence unless the person -
(a) is an authorised person;
(b) is the suspect or the suspect's lawyer;
(c) has possession of the recording in a sealed package as part of his or her duties as a person engaged by a person referred to in paragraph (a) or (b) to transport it; or
- (d) was served with the recording under the Criminal Procedure Act 2004 section 35, 42, 61 or 95.
- (3) A person who plays an audiovisual recording of an interview to another person commits an offence except when -
(a) the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the interview relates;
(b) the recording is played for purposes connected with proceedings before a coroner;
(c) the recording is played for purposes connected with proceedings under the Police Act 1892 to remove a member, as that term is defined in section 33K of that Act;
(d) the recording is played under a direction of a court; or
(e) the recording is played under section 124.
(4) Subsection (3) does not apply to any of the following when acting in the course of duty -
(a) a police officer;
(b) a CCC officer;
(c) the Parliamentary Inspector;
(d) an ombudsman officer.
(5) A person who supplies, or offers to supply, an audiovisual recording of an interview to another who is not -
(a) an authorised person;
(b) the suspect or the suspect's lawyer;
(c) a person engaged by a person referred to in paragraph (a) or (b) to transport it; or
- (d) a person who is required to be served with it under the Criminal Procedure Act 2004 section 35, 42, 61 or 95,
commits an offence unless the person is acting under a direction given under section 122.
- (6) A person, other than an authorised person, who copies any part of an audiovisual recording of an interview, or who permits another person to make a copy of any part of such a recording, commits an offence unless the person is acting under a direction given under section 122.
(7) An authorised person who erases an audiovisual recording of an interview commits an offence, except when the person is acting under -
(a) a direction given under section 122; or
(b) an authorisation given under section 123(3).
(8) A person who commits an offence under this section is liable to a fine of $5 000."
31 Section 121 prohibits the broadcasting of a recorded interview unless the broadcast is made under a direction of a Court given under s 122. Section 122 expressly provides for the Supreme Court, District Court, Magistrates Court or Children's Court to give directions as to the supply, copying, editing, erasure, playing or broadcasting of an audiovisual recording of an interview. No mention is made of the Tribunal.
32 Section 123 requires the Commissioner or the CCC to keep an audiovisual recording, if made, of an interview in safe custody for at least five years.
33 Counsel for the respondent nurse in this case says that the Tribunal, notwithstanding the breadth of its powers under s 35 of the SAT Act, is restricted, as is any other person, in relation to the possession or playing of an audiovisual recording that is affected by s 120 CI Act, and that the Tribunal is not an "authorised person" for the purposes of the CI Act. In particular, the respondent contends that the Tribunal is not a "court or a person acting at the direction of a Court" for the purposes of s 120(1)(h) of the CI Act and that none of the circumstances referred to in s 120(3)(a)-(e) apply in this case.
(Page 12)
34 The Board on the other hand contend that the expression "a court" where it appears in the definition of "authorised person" in s 120(1)(h) of the CI Act is sufficiently broad to include any body, however described, that exercises judicial powers.
35 Counsel for the Board refers to the observations of the majority of the High Court of Australia in Forge v Australian Securities and Investments Commission [2006] HCA 44 that emphasise that an important characteristic of a court is its capacity to act independently and impartially in its decision-making and submits the Tribunal satisfies this test.
36 There has been considerable recent consideration of the status of state tribunals and whether or not they may be considered a "court of a State" for the purposes of Chapter III of the Australian Constitution: see for example Commonwealth v Wood (2006) 148 FCR 276; Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; Attorney General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385. The topic has also drawn academic attention: see, for example, G Hill, "State administrative tribunals and the constitutional definition of 'court'" (2006) 13 Australian Journal of Administrative Law 103; D Kerr, "State Tribunals and Chapter III of the Australian Constitution - four cases considered" (2008) 55 AIAL Forum 10.
37 The question also arises as a simple matter of interpretation of a State statute: as, for example, in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 (Dao).
38 In Dao, the New South Wales Court of Appeal held that, for the purposes of the Suitors' Fund Act in that State, the reference to a "court" included the Anti-Discrimination Tribunal of New South Wales. McHugh JA, for example, had regard to the original purpose of the legislation to protect a litigant against a successful appeal as the result of an error of law made by a court. His Honour thought that remedial legislation should be given a beneficial construction. His Honour noted at 516 that:
"Whether the Tribunal is a 'court' for purposes other than the Act is beside the point. What matters for the purpose of the Suitors' Fund Act is that a body which determine rights and is presided over by a judge of the District Court has made an error of law which has been corrected on appeal to the Supreme Court of New South Wales. To grant a certificate, at the request of the respondents, is to promote the purposes of the
(Page 13)
- Act. To hold that the Tribunal is a 'court' for the purpose of the Act contradicts no express or implied provision of the Act."
39 The only question that arises in this case is whether, as a matter of statutory construction, the reference to a "court" in the definition of "authorised person" in s 120(1) and in s 120(2) of the CI Act includes the Tribunal. In my view, in the event, I do not think that it does.
40 Whether or not the Tribunal should be considered a "court of a State" under Chapter III of the Australian Constitution, or otherwise satisfies Chapter III requirements for a body exercising Commonwealth judicial power does not arise for consideration in this case.
41 Section 120 of the CI Act adopts unusual techniques to ensure that an audiovisual recording of an interview conducted as part of the criminal investigation process cannot be used except for criminal trial and related purposes. First, s 120(2) makes it an offence for a person to be "in possession of" such an audiovisual recording, unless they fit into a specified category. The first specified category, and the only one presumably relevant, is that of an "authorised person".
42 The second technique is to make it an offence, under s 120(3) for a person to play an audiovisual recording of such an interview, except in specified circumstances. Taking s 120(2) first, I do not consider that any of the specified circumstances include a circumstance that provides authority for the Tribunal, or a body like the Tribunal, to play the audiovisual recording of such an interview. For example:
• The playing of such an audiovisual recording in the Tribunal would not be a recording played for purposes connected with the "prosecution or defence of, or legal proceedings relating to, a charge to which the interview relates", under s 120(3)(a).
• The playing of the recording in the Tribunal would not be for purposes connected with proceedings before a coroner, under s 120(3)(b).
• The playing of the recording in the Tribunal would not be connected with proceedings under the Police Act 1892 (WA) to remove a member, under s 120(3)(c).
• The playing of the recording in the Tribunal would not be "under a direction of a court", for the purposes of
- s 120(3)(d). This must be taken to be a direction of a court given under s 122 of the CI Act, when the provisions in Pt 11 are read as a whole. Section 122 is limited to a direction given by the Supreme Court, District Court, Magistrates Court, or Children's Court. Parliament has not considered the Tribunal in making this provision.
- • The recording, if played in the Tribunal, would not be played under s 124 of the CI Act as it has nothing to do with training.
43 Therefore, even if the Tribunal could lawfully be in possession of a tape under s 120(2) of the CI Act, it seems it would not be authorised to play it under s 120(3). This, in turn, leads to the view that a more narrow interpretation should be applied to the word "court" where it appears in the s 120(1) definition of "authorised person" and in s 120(2) in relation to the exempt persons who may be in possession of a recording.
44 In broad terms, the intent of the CI Act in protecting audiovisual recordings of an interview made in relation to criminal investigation seems to be such that relevant recordings cannot be used other than for criminal investigation and criminal trial purposes. One explanation for this intent is provided in Horsman v Commissioner of Police [2002] WASC 81 by McKechnie J in relation to the now repealed s 70B of the Criminal Code, with provisions replaced in substance by s 120 of the CI Act, when his Honour observed at [10]:
"The purpose of such restrictions is not hard to see. A person who gives an interview to a police officer which is videotaped, has expressly or impliedly consented to that tape being viewed by persons in the authorised person category under s 70B and more importantly to that videotape being viewed in open court if charges are laid. There can not be implied a consent to have a tape broadcast to a wider audience, or indeed to be supplied to any person beyond the authorised persons mentioned."
Conclusion and general position as a result of conclusion
45 In the Tribunal's view, the restrictions placed on the possession and playing of an audiovisual recording of an interview made for the purposes of criminal investigation under the CI Act apply equally to the Tribunal as they do to any other person, not being an authorised person as defined in that Act. This means that, notwithstanding the broad powers of the
(Page 15)
- Tribunal under s 35 of the SAT Act to require production of any document or material from any person, notwithstanding any legal privilege (save for legal professional privilege) or public interest to the contrary, the Tribunal is unable to compel the production of an audiovisual recording of interview made by the police that obviously would be relevant to the disciplinary proceedings brought by the Board against the respondent nurse in this case.
46 This statutory position seems to the Tribunal to produce an odd public policy outcome, especially given the Tribunal's view that access to the audiovisual recording of the interview is probably available to the Board under the FOI Act.
47 Under the FOI Act, documents held by the Commissioner are plainly open to access unless the matter is exempt matter. As explained above, cl 5 of Sch 1 of the FOI Act sets out a number of circumstances, as discussed earlier, which exempt a matter from disclosure if disclosure might prejudice an investigation. However, it is difficult to see how any of those provisions apply in this case, particularly as there can be no prejudice to an investigation of any contravention or possible contravention of the law in the case of the respondent nurse, because the police have consented to the proceedings against her being dismissed.
48 Further, even thought the recording would also seem to fall under the personal information exemption in cl 3, the Tribunal considers the public interest consideration referred to in cl 3(6) would not protect the recording from disclosure.
49 As a result, the Tribunal appears to be bound by the provisions of the CI Act, because there is no provision in the SAT Act, or in the CI Act which says that the powers of the Tribunal apply notwithstanding the provisions of the CI Act. The CI Act is a later Act than the SAT Act and therefore should be taken to restrict the Tribunal's powers.
50 By contrast, the provisions of the CI Act do not appear to restrict the operation of the FOI Act. This is because s 8(2) of the FOI Act expressly provides that the right to access to documents created by s 8(1) applies in respect of any enactment (whether enacted before or after the commencement of the Act) "unless the enactment is expressly stated to have effect despite this Act". There is no provision in the CI Act which says that the CI Act is to have effect despite the FOI Act.
51 Accordingly, it would seem open to a vocational regulatory body such as the Board to apply to the Commissioner of Police for access to an audiovisual recording of interview conducted as part of a criminal investigation, at least in a case such as this where there is no on-going prosecution of the subject of the interview.
(Page 16)
52 Finally, the Tribunal is concerned that the Parliament, in passing the CI Act, may have overlooked the fact that the terms of s 120 of the CI Act limit the power of this Tribunal to require the production of documents that may be relevant in disciplinary proceedings before the Tribunal. This is something that the Parliament may wish to reconsider, especially if, as the Tribunal has suggested, a vocational regulatory body such as the Board may well be entitled to gain access to the document in question under the FOI Act. In such circumstances it is difficult to understand why the Tribunal should not be able to order production of the document by the Commissioner of Police to the Tribunal if it would assist in the determination of disciplinary proceedings in the Tribunal.
Order
53 The Tribunal therefore would dismiss the Board's application. The Tribunal would also discharge the earlier order for non-publication of the respondent's name now that the criminal proceedings against her have been dismissed.
54 The Tribunal orders:
1. The application of the Nurses and Midwives Board of Western Australia for an order requiring the Commissioner of Police to produce an audiovisual recording of interview with the respondent nurse made in September 2007 as part of a criminal investigation is dismissed.
2. The order made on 2 November 2007 for non-publication of the respondent's name is discharged.
- I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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