Pages Hire Centre (NSW) Pty Ltd and Boros v Department of Premier and Cabinet
[2014] SADC 3
•24 January 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
PAGES HIRE CENTRE (NSW) PTY LTD AND BOROS v DEPARTMENT OF PREMIER AND CABINET
[2014] SADC 3
Judgment of His Honour Judge Beazley
24 January 2014
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Appeal from determination of the Ombudsman under Freedom of Information Act affirming a determination by SafeWork SA to grant access to injured worker of heavily redacted version of transcript of compulsory interview of employee of the first appellant - appellants assert that document is exempt as, inter alia, the disclosure of its contents would breach Section 55 of the Occupational Health, Safety and Welfare Act, and/or section 271 of the Work Health and Safety Act - no cogent reason to depart from the determination of the Ombudsman.
Held: Appeal dismissed.
Words and Phrases.
Construction of expression 'criminal or improper conduct' in clause 6(2) of the First Schedule to the FOI Act. The word 'or' does not mean 'and' in section 55(1a)(c) of the Occupational Health, Safety and Welfare Act.
Freedom of Information Act 1991 ss 3, 3A 20, sch 1, clauses 6(2), 12(1) and 13(1); s 40(1) and 48; Occupational Health, Safety and Welfare Act 1986 ss 38 and 55; Work Health and Safety Act, 2012 ss 171 and 271; District Court Act, 1991 s 42; Acts Interpretation Act, 1915 s 16, referred to.
Victims Compensation Fund v Scott Brown (2003) 77 ALJR 1797; Myenvironment Inc v Vicforest [2013] VSCA 356; Bradshaw v SA Police [2012] SASC 184; Victoria Police v Marke [2008] VSCA 218; Ward v Family Care Meeting Convenor [2003] SADC 18; Ipex Info Tech v Dept of Info Tech Services SA [1997] SADC 3618; Muir v The Council of Trinity Grammar (2005) NSWSC 555; Comcare v John Holland Rail Pty Ltd [2010] FCA 981; Simring v Commissioner of Police (NSW) [2009] NSWSC 270; Agius v The Queen [2013] HCA 27; General Manager Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84; British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43 at [19]; Harman v Secretary of State for Home Development [1983] 1 AC 280 at 302; James v Keogh (2008) 102 SASR 51; Peat Resources of Aust (2004) WASCA 122; Gillespie v Ford (1978) 19 ALR 102; Associated Newspapers Ltd v Wavish (1956) 96 CLR 526, considered.
PAGES HIRE CENTRE (NSW) PTY LTD AND BOROS v DEPARTMENT OF PREMIER AND CABINET
[2014] SADC 3Introduction
This is an appeal brought by Pages Hire Centre (NSW) Pty Ltd, (the first appellant) and Attila Boros (the second appellant) pursuant to s 40(2) of the Freedom of Information Act 1991 (the FOI Act), being persons aggrieved by a determination made upon an external review by the Ombudsman on 17 May 2012.
The Ombudsman, as the relevant external review authority under s 39 of the FOI Act, confirmed a determination initially made by SafeWork SA (the agency) on 7 September 2011. That initial determination of the agency, which was also confirmed by an internal review on 27 February 2012, was to the effect that an injured worker be granted access, to a heavily redacted version of the transcript of a compulsory interview by the agency, of an employee of the first appellant.
The only document which is the subject of the appeal is that heavily redacted version of the transcript (the relevant document). Having perused the relevant document, it is, objectively, difficult to comprehend the concern expressed by the appellants. It contains little, if any admissible material which could prejudice the position of either appellant.
The appellants maintain that their appeal involves matters of principle.[1]
[1] T. p 26
The appellants, inter alia, complain that the relevant document is exempt from disclosure pursuant to s 20(1) of the FOI Act because it contains:
·‘allegations or suggestions of criminal or other improper conduct, the release of which would be unreasonable’, contrary to clause 6(2) of the First Schedule thereto; and
·‘matter the disclosure of which would constitute an offence against an Act,’ contrary to clause 12(1) of the First Schedule thereto.
A complicating factor is that well after the subject determination was made by the Ombudsman; and, indeed well after the subject Notice of Appeal and Outline of appellants’ submissions were filed, the legislation, which conferred the coercive powers upon the agency was repealed on 1 January 2013. [2]
[2] S 55(1) of the Occupational Health Safety and Welfare Act. (now repealed)
The appellants submit that the question as to whether the relevant document should now be disclosed to the injured worker ought be determined by reference to the repealing Act,[3] and not the repealed Act[4] as considered by the Ombudsman.
[3] Work Health and Safety Act 2012
[4] The Occupational Health Safety and Welfare Act (1986) sections 38, and 55
The parties to the appeal tendered to the court a copy of the transcript in full, with the relevant document highlighted.
I directed that the tendered document be sealed so as to maintain the confidential nature of the material contained therein.[5]
[5] See Ipex Info Tech v Dept. of Info Tech Services SA [1997] SADC 3618
The second appellant was described, interchangeably, in the tendered documents, on the one hand, as the ‘Managing Director’ of the first appellant, while, on the other, as its ‘NSW Supervisor’. There was only a passing reference to the second appellant in the full transcript of the compulsory interview; and no mention of him at all in the relevant document.
The second appellant had, however, been a party to the application for the external review by the Ombudsman and therefore remained a proper party to the appeal pursuant to s 40(5) of the FOI Act.
The substantive issue involves a matter of principle, namely whether an agency, which has conducted an interview of an individual by the use of its coercive powers, ought be permitted to give access to another of a transcript of any part of that interview.
This issue involves, inter alia, whether:
·the transcript is exempt in consequence of s 55 of the Occupational Health, Safety and Welfare Act 1986 (now repealed) (the OHSW Act);
·the consent of the person who furnished the information is mandatory before access can be given to another;
·in light of the repeal of the OHSW Act, the question as to the giving of access to the transcript ought be determined by the new Act.[6]
[6] The Work Health and Safety Act (2012) ss 171 and 271.
The background to the subject application is somewhat complicated and requires a detailed explanation.
Background
I will refer to individuals by letter rather than by their respective names.
On 29 February 2008, a person to whom I shall refer as ‘G’, asserted that he had suffered an injury to his spine when moving some chairs in the course of his employment. He asserts that he was employed by a labour hire company, which had hired his services to the first appellant; and that, at the time of his injury; he was performing that work as directed by employees of the first appellant.[7]
[7] Casebook page 1.
‘G’ has given notice of his intention to pursue civil proceedings against the first appellant.[8]
[8] See Mason & Cox v McCann (1999) 74 SASR 438.
On 7 March 2008, ‘N.’, an Inspector duly appointed under ‘the OHSW Act’ exercised his powers pursuant to s 38(1)(g) thereof.[9]
[9] Repealed by Work Health and Safety Act (2012) commenced 1 Jan 2013.
Section 38(1)(g), at that time, provided that an Inspector may:
Require any person to answer, to the best of that person’s knowledge, information and belief, any question relating to the health, safety or welfare of persons at any workplace or to any other matter to which this Act applies …
This coercive power was enforced by s 38(8)(b) of the OHSW Act, which provided for the imposition of a maximum penalty of a Division 5 fine.
‘N.’ conducted a taped interview of the first appellant’s Logistics Manager, ‘J.G.’. It was conducted in the presence of other persons including two employees of the first appellant and a consultant. Subsequently a transcription of that taped interview was made, for the purpose of a possible prosecution against the first appellant, the second appellant, as its Managing Director, and its employee ‘M.M.’.
Subsequently ‘J.G.’ purported to qualify his responses as recorded in the interview. He deposed to ‘being uncomfortable with his answers because they were based upon assumptions’. He said that he had ‘no first-hand knowledge’.[10]
[10] T. p.27.
On 8 August 2008, ‘G’ made application to the agency seeking access to:
all documents whatsoever, including but not limited to, a summary report of the facts of a CTS relating to my work accident on 29 February 2008.
On 21 June 2011, ‘G’ made application, to the agency, pursuant to s 13 of the FOI Act, seeking access to ‘all documents in your possession relating to your investigations of the accident, Pages Hire Centre (NSW) Pty Ltd and ‘M.M.’.[11]
[11] Casebook page 3.
On 8 August 2011 the agency consulted with the appellants pursuant to s 27 of the FOI Act. By letter dated 18 August 2011 from their solicitor, the appellants objected, inter alia, to the release of any part of the transcript. They asserted that the transcript was obtained for an entirely different purpose namely “the now finalised prosecution involving the appellants’[12].
[12] Casebook page. 6.
That assertion was presumably based upon a right to privacy akin to an implied undertaking that the agency would use the transcript only in the potential prosecution, and that no other use would be made of the transcript.[13] The appellants also asserted that disclosure of the transcript would constitute an offence against s 55 of the OHSW Act, or alternatively that the transcript was an exempt document in that it contained ‘suggestions of criminal or other improper conduct’.[14]
[13] See British American Tobacco Aust Services Ltd v Cowell [2003] VSCA 43 at [19] and Harman v Secretary of State for Home Development [1983] 1 AC 280 at 302.
[14] FOI Act, s 20 and clause 6(2) of the First Schedule.
The decision of the accredited officer
On 7 September 2011, the accredited officer of the respondent, in a detailed determination, notified the appellants, inter alia, as to the status of a large number of documents, including the transcript.
The appellants had objected to access being given to any of those documents.
The accredited officer had given access to redacted parts of some only of those other documents. The underlying basis for access being given was that the person referred to in the portion to be released, namely the injured worker ‘G’, had consented. The within appeal concerns only the relevant document and does not involve the determination that access be given to those other documents.
As to the transcript of the compulsory interview, the accredited officer accepted that some of it was exempt, and that, accordingly, access to the whole of it ought not be granted to ‘G’. Pursuant to s 20(4) of the FOI Act, where it is practicable to give access to a document from which the exempt matter has been deleted, and it appears that the applicant would wish to be given access to that redacted document, the agency is obliged to give access to him.
Consistent with his determination with respect to the other documents, the accredited officer determined that those heavily redacted parts of the interview which referred to ‘G’ ought be released to him. He formally determined that access to the relevant document, be granted to ‘G’.
‘G’ did not seek to review that determination that only the relevant document be released to him.
Internal review
By letters dated 19 September 2011 and 5 October 2011, the appellants applied for an internal review of that determination, pursuant to s 29(1) of the Act.
By letter dated 27 February 2012 the Principal Officer of the agency, upon that internal review, confirmed the initial determination of the accredited officer of the respondent. He was independently satisfied that ‘G’ ought be given access to the relevant document.
External review by the Ombudsman
By letter dated 29 March 2012, the appellants sought an external review of the Determination pursuant to s 39 of the FOI Act.
The original applicant, ‘G’, in whose favour the determinations of the agency had been made, was not a party to the external review.
The appellants, for the most part, repeated the submissions made to the agency.
They did however assert that the relevant document contained some commercially sensitive information as to the first appellant’s business and was therefore exempt pursuant to s 27(1) and clause 7(1)(a) of the FOI Act.
The appellants’ substantive submission was directed to the fact that the subject interview of ‘J.G.’ was conducted under the coercive powers in s 38 of the OHSW Act.
They submitted that the disclosure of the taped interview, even in its redacted form would constitute an offence against s 55 of the OHSW Act, as it was information obtained by ‘N’, in the course of carrying out his functions under the OHSW Act. They relied, in part, upon a decision of this Court in Mitchell v Department for Administrative Information Services;[15] and clause 12(1) of the First Schedule to the FOI Act.
[15] [2005] SADC 137, and see Ward v Family Care Meeting Convenor [2003] SADC 18.
Finally they submitted that ‘G’ had other alternatives available to him to gain access to the relevant document, including by subpoena or discovery of documents in the civil proceedings, proposed to be instituted by ‘G’.
It is convenient to set out the relevant provisions of s 55 of the OHSW Act and clauses 6(1), 6(2), 12 and 13(1) of the First Schedule to the FOI Act.
The OHSW Act
55—Confidentiality
(1) A person (including a health and safety representative, a member of a health and safety committee or a person acting as a consultant) must not disclose information (except as permitted by subsection (1a)) if –
(a)the person obtained the information in the course of carrying out functions in, or related to, the administration, operation or enforcement of this Act; and
(b)the information is—
(i)about commercial or trading operations; or
(ii)about the physical or mental condition, or the personal circumstances or affairs, of an employee or other person; or
(iii)information provided in a return or in response to a request for information under this Act.
Maximum penalty: Division 6 fine.
(1a) The disclosure of information is permitted if it is—
(a) a disclosure in the course of official duties; or
(b) a disclosure of statistical information; or
(c) a disclosure made with the consent of the person to whom the information relates, or who furnished the information; or (my emphasis)
(d) a disclosure required by a court or tribunal constituted by law; or
(e) a disclosure to the Advisory Committee, WorkCover, or to an administrative unit in the Public Service of the State, made under the authorisation of the Minister; or
(f) a disclosure authorised by the regulations.
….
(1c) a person must in making a disclosure under subsection (1a), insofar as is reasonably practicable, take steps to prevent or minimise any adverse commercial or industrial impact on the relevant employer.
The relevant sections of the (FOI) Act
·Sections 3 (the Objects), and 3A (the Principles of Administration), of the FOI Act make it clear that an administrative discretion conferred by the Act should be ‘exercised, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals’.
·Section 12 of the Act provides that a person has ‘a legally enforceable right to be given access to an agency’s documents in accordance with the Act’.
·Section 20(1) of the Act vests, in an agency, a discretion to refuse access to a document, inter alia, if it is an ‘exempt’ document, as defined in the First Schedule to the Act.
Relevantly, however, s 20(4) provides:
‘If –
(a) it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b) it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy, the agency must not refuse to give access to that document to that limited extent’.
·Clause 6(2) of the First Schedule to the Act provides:
‘a document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable’. (my emphasis)
·Clause 7(1) of the First Schedule to the Act provides relevantly that:
‘a document is an exempt document if it contains information that has a commercial value, or other information concerning the business, professional, commercial or financial affairs of a person the disclosure of which would relevantly, ‘on balance, be contrary to the public interest’.
·Clause 12 of the First Schedule to the Act provides that:
(1)a document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act.
(2)a document is not exempt by virtue of this clause unless disclosure of the matter contained in the document to the person by or on whose behalf or application for access to the document is made, would constitute an offence.
·Section 48 of the Act provides that the burden of establishing that the determination, the subject of the appeal, is justified, lies on the agency.
The Determination of the Ombudsman
Pursuant to s 39(11) of the FOI Act the Ombudsman could ‘(based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review. (my emphasis)
By reasons dated 17 May 2012, the Ombudsman confirmed the respective determinations of the accredited officer and the Principal Officer of the agency. He concluded that while the relevant document was prima facie exempt from disclosure under s 55(1) of the OHSW Act, the release to ‘G’ would not constitute an offence because it fell within the exemption in s 55(1a)(c), of the OHSW Act, namely that it was ‘a disclosure made with the consent of the person to whom the information relates, or who furnished the information’. The Ombudsman construed the word ‘or’ disjunctively, so that there was no need for the consent of ‘J.G.’, the person who furnished the information.
He distinguished the factual basis which gave rise to the decision of this Court in Mitchell v DAIS (Workplace Services), supra, and concluded that the relevant document was not exempt under clause 12. He dismissed the assertions of the appellants that the relevant document was exempt under either clause 6(2) or 7(1) of the First Schedule to the Act.
He was satisfied that the redacted transcript of the interview did not disclose information which was exempt under the Act. He concluded that access to the relevant document ought be given to the original applicant, ‘G’.
Notice of Appeal
By Notice of Appeal, dated 14 June 2012, from the determination of the Ombudsman, the appellants sought orders that the relevant document be declared to be exempt so that it not be accessed by ‘G’.
Pursuant to s 40(5) of the Act the parties are the appellants – as applicants for Review before the Ombudsman - and the agency. The Ombudsman cannot be a party to the appeal.[16]
[16] Section 40(6) of the FOI Act.
The grounds of appeal
1. The Ombudsman SA erred in failing to give sufficient consideration to the fact that the relevant document was created by the Agency, Safework SA in relation to the enforcement of the Occupational Health Safety and Welfare Act, 1986 (the OHSW Act) which was provided by the First appellant under legal obligation pursuant to Section 38 of the OHSW Act and that its disclosure would constitute an offence under Section 55 of the OHSW Act.
2. The Ombudsman SA erred in finding that the relevant document is not exempt from disclosure pursuant to Clause 12(1) of Schedule 1 of the Freedom of Information Act, 1991 (FOI Act).
3. The Ombudsman SA erred in failing to give sufficient weight and correctly applying the case “Mitchell v Department for Administrative and Information Services (Workplace Services) [2005] SADC 137” (‘Mitchell’).
4. The Ombudsman SA erred in finding that the case of Mitchell is distinguishable from the Appellants’ situation in finding that ‘G’ has consented to the release of the information although he did not provide the said statement.
5. The Ombudsman SA erred in finding that the exception in Section 55(1a)(c) of the OHSW Act should be read “disjunctively” namely that information satisfying Section 55(1)(a) and (b) is able to be lawfully disclosed if disclosure is made with the consent of the person to whom the information relates or if disclosure is made with the consent of the person who provided the information.
6. The Ombudsman SA erred in failing to find that the document discloses information relating to the business affairs of the First Appellant and commercially sensitive information pursuant to Section 27 of the FOI Act and is exempt pursuant to Clauses 7(1) of Schedule 1 to the FOI Act.
7. The Ombudsman SA erred in failing to find that parts of the said Document Number 36 are exempt pursuant to Clause 6(2) of Schedule 1 of the FOI Act.
8. The Ombudsman SA erred in failing to give sufficient consideration to the Statutory Declaration of ‘J.G.’ on 3 May 2012 objecting to the release of the relevant document.
9. The Ombudsman erred in failing to give sufficient consideration to the Statutory Declaration of ‘J.G.’ wherein he stated that his answers to the statements were based on his belief or assumptions about what may or may not have happened and did not contain his firsthand knowledge and that he has never been given an opportunity to independently verify the accuracy or inaccuracy of any of the statements he made in the said document and accordingly, the relevant document should be exempt pursuant to Clause 6(2) of Schedule 1 to the Act.
As I have already explained, the appellants had not referred to the repeal of the OHSW Act, prior to the hearing of the Appeal.
They made no mention of it in their Notice of Appeal because the repeal did not take effect until well after the Notice of Appeal, and the initial outline of argument, had been filed by them.
On the hearing of the appeal the appellants submitted that the outcome of the within appeal ought be determined by the subsequently enacted WHS Act.
It is appropriate, in light of the appellant’s submissions to set out the relevant provisions of the WHS Act.
The WHS Act
As I have noted, the OHSW Act was repealed by the Work Health and Safety Act, 2012 (the WHS Act) on 1 January 2013 – well after the determination by the Ombudsman.
In s 171 of the WHS Act a person is obliged to take part in a compulsory interview conducted by an inspector.
In s 271 of the WHS Act, Parliament reinforced the obligation of an agency to maintain the confidentiality of certain documents held by it. However that section only applies in respect of information obtained or access given to a document in the exercise of powers or functions under this Act. (my emphasis)[17]
[17] S 271(1) of the WHS Act.
The proscription against disclosing any information or giving access to any document is subject to s 271(3) of the WHS Act, which relevantly provides that that proscription does not apply to a document –
(a) About a person, with the person’s consent or
….
(d) That (the disclosure) is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions.
….
The nature of the appeal
Section 42E of the District Court Act 1991 provides that upon the hearing of such appeal:
(1) The Court must, on appeal, examine the decision of the original decision maker on the evidence or material before the original decision maker but the Court, may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal –
(a) Is not bound by the rules of evidence but may inform itself as it thinks fit;
and
(b) Must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons (my emphasis).
Courts have acknowledged ‘the tension’ between s 42E(3) of the District Court Act, and s 48 of the FOI Act, the latter of which provides that ‘the burden of establishing that the determination is justified lies on the agency’ which made it.
In Bradshaw v SA Police,[18] a Judge of this Court concluded that ‘it was not necessary for an appellant to demonstrate any error of approach employed by the agency in order to succeed on the appeal. Rather it was said, that it is for the agency to satisfy the Court that the determination of the agency to release the subject document was correct.
[18] [2012] SADC 184 at [25]
While I respectfully accept that the respondent agency must satisfy the Court that the determination was correct, the appellants must, nonetheless, establish that there are cogent reasons to depart from the determination of the Ombudsman. See Ward v Family Care Meeting Convenor[19] and Capone v SA Police Information Unit.[20]
[19] [2003] SADC 18 at [5]-[7].
[20] [2011] SADC 7 at [18]-[21].
The evidence on appeal
The parties notionally tendered the documents contained in the casebook; and those contained in the closed, and confidential, affidavits of Darryl Keith Treasure;[21] and Nicholas Michael John Baldock.[22] As I have already noted, the parties also tendered, on a confidential basis, a copy of the full interview with the redacted portions highlighted.[23] These will all remain closed and confidential. I will not, in these reasons, publish any of the information contained in those documents. This accords with the practice of the Court in such matters.[24]
[21] FDN 4, sworn 31 August 2012.
[22] FDN 6, sworn 31 October 2012.
[23] T. p 3-4.
[24] See Rann v SA Water (No2) (1996) 187 LSJS 438 and Cappone v SA Police Information Unit [2011] SADC 7.
It is common ground that the relevant document, namely the redacted version of the interview, has not been disclosed to ‘G’ or anyone else, pending the outcome of this appeal notwithstanding the determination of the Ombudsman.
Submissions of the appellants
Each party provided both written and oral submissions. I gave leave to each of them to provide an amended outline to address the relevance, if any, of the repeal of the OHWS Act on 1 January 2013.
Counsel for the appellants, Ms Walker submitted that both the Ombudsman and the agency had erred in their respective construction of s 55(1a) of the OHWS Act.
She submitted that the subject matter of the interview was not merely ‘G’ and his workplace injury, but the recollections and observations of ‘J.G.’, the person being interviewed. She referred to s 55(1a)(c) which provided an exemption for ‘a disclosure made with the consent of the person to whom the information relates, or who furnished the information. She submitted that that the word ‘relates’ is extremely wide and must include ‘G’, the appellants and the appellants’ employees. In the alternative she submitted that even if the word ‘relates’ is confined to ‘G’ it was necessary for both ‘G’ and ‘J.G.’ to give their consent. She did however maintain that the word ‘or’ should be construed as ‘and’ in light of the fact that ‘J.G.’ was compelled by law to give a statement. She submitted that the purpose of s 55 of the OHWS Act is to protect the privacy of that person who gives a statement.
Ms Walker faintly submitted that there was no direct evidence of the consent of ‘G’. I do not accept that submission. There is no need for a formal consent to be given. It is properly inferred from the application for access. It was however clear that ‘J.G.’ had objected to access being given to ‘G’. Ms Walker submitted that without his consent, it followed that the relevant document ought not be released to ‘G’.
She submitted that this Court should reach the same conclusion as that reached in the case of Mitchell v The Department for Administrative and Information Services,[25] namely that the document is exempt.
[25] (2005) SADC 137.
Ms Walker then concentrated her submissions, in the alternative, upon the repeal of s 55 of the OHWS Act on 1 January 2013, and the commencement of s 271 of the WHS Act.
She submitted that both sections were directed to issues of confidentiality and the limited bases for permitting access to confidential documents. She noted the agreed fact there had been no disclosure of the relevant document either before or after the determination by the Ombudsman.
Ms Walker submitted that the relevant time to consider any exemption from disclosure is not at the time when the Ombudsman made his determination, but rather at a time when actual disclosure is contemplated to occur. Any disclosure would occur in the future, namely after the repeal of the OHWS Act on 1 January 2013. In those circumstances the OHWS Act had no role to play, nor did the savings provisions in s 16 of the Acts Interpretation Act. Accordingly she submitted, the question of whether access ought be given is to be determined by s 271 of the WHS Act, and not s 55 of the OHSW Act.
She submitted that because the WHS Act had not been considered by the Ombudsman – indeed for the very good reason that it was then not in existence – the matter ought be referred back to the Ombudsman for his further consideration.
She identified the matter for the Ombudsman to consider under s 271(3) of the WHS Act, namely to identify all of the persons about whom the information relates. She submitted that it was an essential prerequisite to the release of information or the granting of access to the relevant document that all of the persons to whom the relevant document relates, approve its release.
Ms Walker noted that in both the OHWS Act and WHS Act it was open to a Court in the course of other litigation to release documents such as the relevant document. Implicitly she submitted that that course is open to ‘G’ in the subject case. In the event that he has issued proceedings, an order could be made against a non-party to the proceedings, in this case the agency, for the disclosure of that document. In the alternative the document could be the subject of a subpoena.
In the further alternative, Ms Walker submitted that insofar as the relevant document contained even a suggestion of negligence, then for the purposes of clause 6(2) of the First Schedule to the Act, such negligence would constitute ‘improper conduct’ so that the document, in those circumstances, is exempt.[26]
[26] Howley v Commissioner of Police (2002) SASC 23.
She very properly abandoned any argument based upon s 27(1) of the Act and clause 7(1) of the First Schedule thereto. It is plain from even a cursory examination of the relevant document that it contains no material affecting the business of either appellant.
Ms Walker did not make any oral submission as to the question of an implied undertaking not to use or give access to another of documents obtained for the sole purpose of a potential prosecution.
There is of course abundant authority for such an implied undertaking in certain circumstances in the general law.[27] By way of example a party to an FOI appeal would generally obtain access to the document in dispute. cf s 41 of the FOI Act. The appellants did themselves obtain access in this case. Such a party could not use that document in other proceedings. It may, by way of further example, prevent ‘G’ from obtaining documents from the agency by way of non party discovery or subpoena in his civil action. However it is not a matter that touches upon the question of disclosure under the FOI Act.[28]
[27] See British American Tobacco Aust Services Ltd v Cowell [2003] VSCA 43 at [19] and Harman v Secretary of State for Home Development (1983) 1 AC 280 at [322]-[333].
[28] See McGuirk v University of New South Wales (2009) 75 NSWLR 224 at [33]
The Respondent’s submissions
Counsel for the respondent Mr Swanson submitted that that notwithstanding the fact that access had not yet been given, section 271 of the WHS Act did not apply to the facts of the subject case, and is limited to documents obtained under the WHS Act and not some predecessor Act. He abandoned an earlier submission that notwithstanding the repeal of the OHWS Act there was a continuing obligation by inspectors under s 55 of the Act not to divulge or disclose such information the subject of that section.
He submitted that the exemption must be considered at the time that the initial applicant, ‘G’, had a legally enforceable right to access the documentation. He referred to s 16 of the Acts Interpretation Act, 1915, (SA).
Mr Swanson referred to each of the remaining paragraphs in the heavily redacted document. He submitted that the relevant document did not contain any matter, the disclosure of which would constitute an offence under s 55(1) of the OHSW Act. He noted that at no point was there any reference to the second appellant by name. He submitted that clause 6(2) of the First Schedule of the FOI Act did not apply, as there was no allegation or even suggestion of any criminal or other improper conduct in the relevant document.
He submitted that unless it falls within an exemption, the clear intent of the Act is that the document should be released.
He submitted that even it were the case that ‘G’ could obtain access to the relevant document by non-party discovery or by subpoena that was not a basis for the refusal of access. Accordingly he submitted that there is no cogent reason to depart from the decision of the Ombudsman.
Discussion
I will deal separately with each of the appellants’ submissions that the relevant document is exempt from disclosure to ‘G’.
It is first necessary to determine which Act relevantly proscribes the disclosure of information obtained by the Agency pursuant to its coercive powers.
·Section 55(1) of the OHSW Act, or section 271(1) of the WHS Act?
Overview
Each of the above sections proscribes the disclosure of information by a person who obtained that information in the course of carrying out (s 55(1) OHSW Act) or exercising (s 271(1) WHS Act) any power or function under this Act.
However the relevant exemption, in each case, is markedly different.
Under s 55(1a)(c) of the OHSW Act disclosure was permitted when it was made ‘with the consent of the person to whom the information relates or who furnished the information’.
By contrast under s 271(3) of the WHS Act, the proscription against disclosure does not apply in respect of information:
‘about a person, with the person’s consent’.
Upon a literal reading, disclosure would be permitted under the repealed Act if either the person to whom it related or the person who furnished it consented.
Such a construction would lead to the unfortunate consequence that the consent of the very person to whom the information relates, would not be required if the informant gave his consent. The informant, of course, will already be aware of the information. The person to whom it related may not be aware at all, and will not know of its contents until it is disclosed to him.
This may well explain why it was that Parliament restricted the exemption in the repealing Act to only that person, and deleted the reference to the person who furnished the information whose consent must be obtained.
This seems consistent with the attitude expressed by Parliament in s 27(2) of the FOI Act that an agency must obtain the views of the person concerned before access is given.[29]
[29] Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 at 620.
In one sense it does not matter which Act applies as, upon my construction of each section, infra, the ultimate result would be the same. The practical difficulty, in the event that the WHS Act applied, would be that the application may have to be remitted to the Ombudsman.
I am however satisfied that the relevant Act for the purpose of clause 12(1) of the First Schedule to the FOI Act, is the repealed Act, and in particular s 55(1) and 55(1a)(c) of the OHSW Act, and I will briefly explain my reasons.
·Section 55(1) of the OHSW Act applies
On its face s 55(1) of the OHSW Act applies to information as defined in subsection (b)(ii) and (iii) thereof, which was obtained in the course of duties as defined in subsection (a) thereof.
The subject information was obtained under that Act. It’s disclosure was proscribed under s 55(1) accordingly.[30]
[30] See James v Keogh (2008) 102 SASR 51
The coercive interview of ‘J.G.’ was conducted by the inspector ‘N’ pursuant to his powers under s 38 of the OHSW Act. The application by ‘G’ for access to the interview was determined by the agency and the Ombudsman prior to the repeal of the OHSW Act.
The Ombudsman determined, well before the commencement of the WHS Act, that the release of the relevant document to ‘G’ did not constitute an offence against s 55(1) of the OHSW Act because of the exemption in s 55(1a)(c) of that Act.
Accordingly, subject to the outcome of the within appeal, ‘G’ had acquired a right to access the relevant document,[31] prior to the commencement of the WHS Act.
[31] See James v Keogh (2008) 102 SASR 51
On its face s 271 of the WHS Act applies only to information obtained in the exercise of any power under this Act.
While s 21 of the 6th Schedule to the WHS Act empowers an inspector to investigate breaches which occurred prior to the commencement of that Act, this simply reflects the saving of the OHSW Act as expressed in s 26 of the 6th Schedule to the WHS Act, and s 16 of the Acts Interpretation Act, 1915, (SA).[32]
[32] See James v Keogh (2008) 102 SASR 51; cf Agius v The Queen [2013] HCA 27; Lay v Employers Mutual [2005] NSWCA 450
No submission was made to the effect that the Ombudsman’s determination was the type of administrative act which ought be treated as ‘done for the purpose’ of the repealing Act under s 15 of the Acts Interpretation Act. In my opinion it was not merely an administrative act but the right to access which had been acquired by ‘G’ before the repeal of the OHSW Act.[33]
[33] See James v Keogh, supra, and Esber v Commonwealth (1992) 174 CLR 430.
Is the relevant document exempt?
I turn then to the question of exempt documents under the FOI Act.
·Clause 12 of the First Schedule
I accept that as the subject interview was obtained under compulsion, and touched upon the matters set out in s 55(1)(a) and (b)(ii) and (iii) of the OHSW Act it is prima facie exempt from disclosure pursuant to clause 12(1) of the First Schedule.
The question, however, in light of s 55(1a)(c) of the OHSW Act and clause 12(2) is whether the relevant document is exempt from disclosure to ‘G’ specifically.[34]
[34] See General Manager Workcover Authority (NSW) v Law Society of NSW [2006] NSWCA 84 at [127], [176]-[181].
Section 55(1a)(c) of that Act permits a disclosure where it is ‘made with the consent of the person to whom the information relates, or who furnished the information’.
As I understand the appellants’ submissions, it is necessary to obtain the consent of ‘all the persons to whom the information relates’ and ‘the person who furnished the information’ before disclosure is permitted.
This raises the question whether the exemption in s 55(1a)(c) ought be read cumulatively or dispersively. This would not need a ‘modification’ of the words of the subsection. In effect it would be read as if it included both persons. cf. Associated Newspapers Ltd v Wavish.[35]
[35] (1956) 96 CLR 526
On other occasions Courts have indeed gone further by substituting ‘and’ for ‘or’ and vice versa,[36] based upon a determination as to the purpose of the relevant Act in the light of provisions similar to s 22 of the Acts Interpretation Act, 1915, (SA).
[36] Peat Resources of Aust [2004] WASCA 122; Smith v Papamihail (1998) 158 ALR 451; Gillespie v Ford (1978) ALR 102; Pearce and Geddes, Statutory Interpretation in Aust.
It is however a matter which requires caution,[37] and depends upon whether a literal interpretation would produce an ‘absurd’ result or at least one which does not promote the objects of the legislation.
[37] Victims Compensation Fund v Scott Brown (2003) 77 ALJR 1797
It is apparent that the exemption in s 55(1a)(c), was poorly drafted. As I have explained, if it is read literally, the consent of the very person to whom the information relates would not be required so long as the informant gave his approval. That result would be unfortunate. However if read cumulatively the approval of the person concerned would not be sufficient because the informant could simply refuse to grant his approval.
In the case of an applicant for access who is the very person the subject of the information, this would be an absurd result. As I have noted this may well explain the reduced scope of the exemption in s 271(3) of the repealing Act.
It is often difficult to determine the purpose or object of a particular section because there may be competing interests.
In Carr v Western Australia,[38] Gleeson CJ noted that ‘legislation rarely pursues a single purpose at all costs’.
[38] (2007) 232 CLR 138, and see Myenvironment Inc v Vicforests [2013] VSCA 356.
The subject s 55(1) is a secrecy provision. Clearly Parliament was concerned to ensure the confidentiality of that defined information.
I have no doubt that Parliament was concerned that the approval of the person, to whom the information related, was essential. After all it is the information which relates to that person which is the basis of the secrecy provision. Similarly Parliament may have been concerned about the position of informants so as to ensure their assistance. However it does not follow that the exemptions in s 55(1a) of the Act ought be construed in the manner suggested by the appellants. See General Manager Workcover Authority v Law Society of NSW, supra.
It is of course a possible construction of the expression ‘information which relates’, that it includes all persons mentioned or remotely connected to the central issues in the document.
Such a wide construction would produce an unfortunate result as all persons covered by that expression would need to give their approval.
It must be remembered that s 55(1) imposes a criminal penalty. It must be construed strictly. If it were construed in the manner suggested by the appellants, disclosure may never be permitted. An officer could not be certain as to all of the potential persons who may have been ‘referred’ to directly or indirectly in a document. Even if he could identify them it would be difficult to ensure that all had given their consent. In my opinion it ought be restricted to those persons directly concerned, or to put it in the language of s 271(3) of the WHS Act, limited to information ‘about’ a person.
The word ‘refer’ ought be construed strictly and in the subject case, be limited to the very person, the subject of the relevant document, namely ‘G’.
In my opinion s 55(1a)(c) should also be read in its plain meaning namely dispersively and not cumulatively. Accordingly there is no need for the approval of the person who furnished the information, ‘J.G.’ to be obtained, once ‘G’ is taken to have consented.
In my opinion the relevant document, as opposed to the full transcript, refers only to ‘G’ and his alleged accident.
The facts of the subject case are distinguishable from those in Mitchell v Dept for Administrative and Information Services, supra. The document in that case related solely to the work safety issues of an employer SA Crate Pty Ltd. It did not relate to the applicant Mr Mitchell. Access to others, including Mr Mitchell was proscribed under s 55(1) of the Act, and it did not fall within any exemption in s 55(1a)(c) thereof.
In the subject case, ‘G’ has by his actions given his consent. Accordingly it would not have been an offence under s 55(1) of the OHSW Act for the agency to give access to ‘G’ of the relevant document. I repeat that the same result would follow in respect of s 271 of the WHS Act.
I affirm the Ombudsman’s conclusion that the relevant document is not exempt pursuant to clause 12(1) of the First Schedule.
·Clause 6.2 of the First Schedule
It is trite that a document will be exempt if it contains ‘allegations or suggestions’ of ‘criminal or other improper conduct’ on the part of a person; and the truth of those allegations or suggestions have not been established by judicial process, and the disclosure of which would be unreasonable’.
As I have already noted, the prosecution referred to herein, has been ‘finalised’. The parties did not inform me as to whether the truth of the allegations in the full transcript had been established in that judicial process.
As can be seen this clause applies to mere ‘allegations’ or ‘suggestions’ of criminal or improper conduct.
Under the provisions of the OHSW Act, and the WHS Act, there are both criminal and civil penalties for certain breaches of health and safety provisions. These apply both in respect of a corporate entity and its directors. It would therefore, in a particular case, be easy to infer a suggestion of ‘criminal’, let alone, ‘improper conduct’ from the report of an accident.
In my opinion however the subject case is not one of them. It is the relevant document which must be considered, not the full transcript. There is no allegation or suggestion in the relevant document of any criminal conduct by any person.
It was submitted by the appellants that there was a suggestion of ‘improper conduct’, because one might infer negligence by the first appellant.
The expression ‘improper conduct’ is not a term of art and must be construed in its context.[39] In some contexts ‘improper conduct’ may include ‘negligence; in the sense of conduct inconsistent with the ‘proper’ discharge of the duties, obligations and responsibilities of the person concerned’.[40]
[39] R v Byrnes (1995) 183 CLR 501
[40] Southern Resources Ltd v Residues Treatment and Trading Co (1990) 56 SASR 455
In the subject case the context is ‘criminal or other improper conduct’.
In my opinion while it may relate to conduct which gives rise to penalties under the relevant Occupational Health legislation, whether civil or criminal, it does not extend to mere negligence.
In any event the relevant document would only be exempt under clause 6.2 if the disclosure to ‘G’ would be unreasonable. This requires ‘a consideration of all of the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood that the person concerned would not wish the information to be disclosed without consent, and whether the information has any current relevance’.[41]
[41] Re: Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257
As to that question of the ‘unreasonableness’ of any disclosure, I repeat that the relevant document has been so heavily redacted that it is difficult to comprehend how, on any objective view, the appellants could be prejudiced by it being accessed by ‘G’. It is apparent that the person being interviewed, ‘J.G.’ had no personal knowledge of the alleged incident nor the events leading up to it. His answers were qualified by his reference to ‘his belief from unnamed sources’, and are plainly hearsay.
Given all of the circumstances including the period of time which has elapsed since the date of the accident on 29 February 2008, and the limited nature of the ‘information’ contained in the relevant document, in my opinion it cannot be said to be unreasonable for it to be accessed by ‘G’. The relevant document is not exempt under clause 6.2.
I affirm the determination of the Ombudsman in that respect.
I do not need to consider, in these circumstances, whether there is any residual discretion to permit access to be given, even if the relevant document was an exempt document.
Conclusion
In my opinion the respondent has discharged the burden in s 48 of the FOI Act that the determinations made by the agency and the Ombudsman to grant access to ‘G’ of the relevant document was correct.
Accordingly there is no cogent reason to depart from those determinations.
For the above reasons the appeal is dismissed.
In the ordinary course I would hear the parties as to the question of costs pursuant to s 42G of the District Court Act 1991 (SA) and Rules of Court 6 DCR 263(1).
However the subject appeal is governed by s 40(8)(b) of the FOI Act which provides that the Court must not make an order for costs in favour of an agency unless it is satisfied that the appellants had acted unreasonably, frivolously or vexatiously in bringing the subject appeal.
It cannot be said that the appellants did so and therefore no order for costs ought be made.
Formal Orders
1. That the appeal is dismissed.
2. That pursuant to s 42F of the District Court Act 1991, the determinations of the agency and the Ombudsman are affirmed.
3. No order as to the costs of the appeal.
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