Re Denehy and Superannuation Complaints Tribunal
[2012] AATA 608
•10 September 2012
CATCHWORDS – FREEDOM OF INFORMATION - request to Superannuation Complaints Tribunal for documents obtained from superannuation fund and its trustee in course of review of complaint - exemptions claimed - unreasonable disclosure of personal information – legal professional privilege – unreasonable disclosure of business affairs – whether document can be released with appropriate deletions of irrelevant or exempt material – decision varied.
CATCHWORDS – FREEDOM OF INFORMATION – legal professional privilege - whether privilege abrogated by statute - no abrogation – whether production under mistaken belief that required waived privilege – privilege not waived.
CATCHWORDS – FREEDOM OF INFORMATION – context in which information obtained by Superannuation Complaints Tribunal and restrictions on its disclosing information relevant in assessing whether disclosure under FOI Act unreasonable.
CATCHWORDS – FREEDOM OF INFORMATION – statutory regulation of trustee and its statutory obligations to disclose information relevant in assessing whether disclosure under FOI Act unreasonable.
WORDS AND PHRASES – “business affairs”
Acts Interpretation Act 1901, s 2C
Administrative Appeals Tribunal Act 1975, ss 30(1A), 33, 35, 42C
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Corporations Act 2001, ss 761A, 761G, 912A, 1017C
First State Superannuation Act 1992 (NSW), ss 13, Sch 3 and Items 6 and 7, 49
First State Superannuation Legislation Amendment (Conversion) Act 2005, s 3 and Sch 1 and [1.1]
Freedom of Information Act 1982, ss 3, 4, 9, 11, 15, 22, 27, 27A, 41, 42, 43, 54, 55, 61, 91, 92
Freedom of Information Amendment (Reform) Act 2010, s 3 and Sch 3, Part 2, items: 17, 27-29, 39
Superannuation Administration Act 1991 (NSW)
Superannuation Administration Act 1996 (NSW), ss 4, 7, 24, 48 and Part 3, 49 – 51, 64, 128C, Sch 2A
Superannuation (Resolution of Complaints) Act 1993, ss 3, 6, 12, 14, 14A, 14AA, 15A, 15B, 15CA, 15E, 15F, 15H, 15J, 17, 18, 22A, 24, 24A, 25, 30, 31, 32, 33, 34, 35, 36, 37, 44, 60, 62, 63, 64, 64A, 65
Superannuation Industry (Supervision) Act 1992, ss 10, 29PD, 52, 101, 107, 108
Superannuation Legislation Further Amendment Act 1998 (NSW)
Corporations Regulations 2001, r 7.6.02
Superannuation Industry (Supervision) Regulations 1994, rr 4.01
First State Superannuation Rules, rr 1.11, 2.2, 3.3, 15.1, 16.1, 16.2, 16.4, 17.2, 23.1
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749; 83 ATC 4606; 14 ATR 713
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 5
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214; (2002) 130 FCR 122
Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; 59 ATR 615
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Esso Australia Resources ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391
Evans v Federal Commissioner of Taxation (1989) 29 ATR 922
Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307
Grant v Downs (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198
Gray v Associated Book Publishers Pty Limited [2002] FCA 1045
Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445; 117 ALR 669
Illawara Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461; 218 ALR 384; 85 ALD 24
Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; (2000) 97 FCR 361
Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
National Mutual Life Association of Australia Ltd v Jetovic (1997) 217 ALR 316
New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311
Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359
Re ABCD and Commissioner of Taxation and Australian Securities and Investments Commission (Party Joined) [2008] AATA 898; (2008) 75 ATR 393; 50 AAR 287
Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 56 AAR 1
Re LJXW and Australian Federal Police [2011] AATA 187; (2011) 120 ALD 516
Re Philip Morris Limited and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361; (2009) 109 ALD 217; 50 AAR 191
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163; 36 FCR 111
Seven Network Ltd v News Ltd [2005] FCA 142
State Government Insurance Office v Rees (1979) 144 CLR 549
SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; (2007) 159 FCR 1
Taylor v Director of the Serious Fraud Office [1999] AC 177
Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Wiseman v The Commonwealth [1989] FCA 434
Wyllie v National Mutual Life Association of Australasia Ltd [1997] NSWSC 146
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
DECISION AND REASONS FOR DECISION [2012] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/2901
GENERAL ADMINISTRATIVE DIVISION )
ReEMMA DENEHY
Applicant
AndSUPERANNUATION COMPLAINTS TRIBUNAL
Respondent
AndFSS TRUSTEE CORPORATION ATF THE FIRST STATE SUPERANNUATION SCHEME
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Date: 10 September 2012
Place: Melbourne
Decision:The Tribunal decides:
(1)in relation to Documents 1, 2, 10, 12, 15, 17, 18 and 21 to set aside that part of the decision of the respondent dated 20 May 2010 identified in the following paragraphs and substitute the decision specified in relation to each:
(a)Document 1
Set aside the decision except in relation to the heading on Folio 283 and in relation to the text under the heading “Closure” on Folio 281 and substitute a decision that the remaining text on Folios 283 to 281 is exempt under s 43(1)(c)(i); (see [103]-[104] and [106]-[114] of reasons)
Note: the effect of this decision is that the decision that the text under the heading “Committee Administration” on Folio 283 and under the heading “Disputes Register” on Folio 281 is irrelevant and should be deleted under s 22 is of no practical consequence. ([119]-[121])
(b) Document 2
(i)Set aside the decision in relation to the whole of the text on Folio 302 to the text above the heading “Relevant Provisions of the Trust” on Folio 286 and substitute a decision that the text is exempt under s 43(1)(c)(i); ([105] and [106]-[114])
(c)Document 10
(i)Set aside the decision relating to the final nine words on Folio 729 and substitute a decision that they are exempt under s 42; ([84])
(ii)Set aside the decision in relation to the whole of the text on other than:
Folios 731-733;
Folios 711-710;
The text below the heading “Relevant Provisions of the Trust” on Folios 713 to 712
and substitute a decision that the text is exempt under s 43(1)(c)(i); ([83]-[85) and [64]-[79] for s 42)
(d)Document 12
Set aside the decision relating to the second sentence of the third full paragraph on Folio 775 beginning “Emma” and substitute a decision that it is not exempt under s 41; ([36]-[38])
(e)Document 15
Set aside the decision relating to the second paragraph on Folio 1109 beginning “I” and substitute a decision that it is not exempt under s 41; ([30] and [57]-[60])
(f)Document 16
Set aside the decision in relation to the whole text other than:
Folio 1125: heading of document and first paragraph under “Minutes of the Meeting”; and
Folio 1122: text under the heading “Closure”;
and substitute a decision that, apart from that text, Document 16 is exempt under s 43(1)(c)(i); ([103]-[114])
(f) Document 17
Set aside the decision in relation to the whole of the text other than that below the heading “Relevant Provisions of the Trust” on Folio 1126 and substitute a decision that the text is exempt under s 43(1)(c)(i); ([103]-[114])
(g)Document 18
(i)Set aside the decision relating to the second sentence of the final paragraph on Folio 1294 and substitute a decision that it is exempt under s 42; ([83])
(ii)Set aside the decision relating to the second paragraph beginning “On” of Folio 1293 and substitute a decision that it is exempt under s 42; ([83])
(iii)Set aside the decision relating to the first sentence of the last paragraph of Folio 1284 and substitute a decision that it is exempt under s 42; ([83]); and
(h) Document 21
(i)Set aside the decision relating to the second paragraph on Folio 278 and substitute a decision that it is not exempt under s 42; ([88])
(ii)Set aside the decision relating to the second, third and fourth dot points of the third paragraph on Folio 278 and substitute a decision that they are not exempt under s 42; ([89])
(iii)Set aside the decision in relation to the whole text other than:
Folio 1125: heading of document and first paragraph under “Minutes of the Meeting”; and
Folio 1122: text under the heading “Closure”;
and substitute a decision that, apart from that text, Document 21 is exempt under s 43(1)(c)(i); ([105] and [106]-[114])
Note: the effect of this decision is that the decision that the text under the heading “Committee Administration” on Folio 283 and under the heading “Disputes Register” on Folio 281 is irrelevant and should be deleted under s 22 is of no practical consequence. ([120]-[121])
(2)otherwise affirm the respondent’s decision in relation to Documents 1, 2, 10, 12, 15, 16, 17, 18 and 21; and
(3)affirm the respondent’s decision dated 20 May 2010 Documents 3, 8, 13, 14, 20, 24, 25 and 26.
S A Forgie
Deputy President
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Ms Denehy requested access to documents held by the Superannuation Complaints Tribunal (SCT) on its files concerning her late father, who had been a member of First State Super (FSS). Her request extended to documents submitted to the SCT by FSS, First State Super Trustee Corporation (FTC) or any of their related entities. Ms Denehy identified particular documents she sought but did not limit her request to those documents. The SCT has granted her access to a number of documents but initially refused access to others. FTC was joined as a party to these proceedings. After further discussions among the parties, the SCT granted Ms Denehy access to additional documents and only 17 remain in dispute. They are listed in Attachment C to these reasons. The SCT has claimed that the remaining documents, or those parts of them indicated in Attachment C, are exempt from access under the FOI Act on the basis of either ss 41 (personal affairs) or 42 (legal professional privilege). FTC, as the party joined, has submitted that they, or parts of them, are exempt under ss 42 or 43 (business affairs).
With effect from 1 November 2010,[1] the FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010[2] (FOI Amendment Act). Among the provisions amended were ss 22, 41, 42 and 43.[3] The amendments apply, however, only in relation to requests for access made under s 15 of the FOI Act and received on or after that day.[4] As Ms Denehy made her request to the SCT on 27 November 2009 and so before that day,[5] I have reviewed the decision as those sections were drafted and applied at the time.
[1] FOI Amendment Act, s 2(1), item 6
[2] Act No. 51 of 2010
[3] FOI Amendment Act, s 3 and Schedule 3, Part 2, items 17 and 27-29
[4] FOI Amendment Act, s 3 and Schedule 3, Part 2, item 39
[5] Documents lodged under s 37(1) of the Administrative Appeals Tribunal Act 1975 (T documents) at 31
I have decided to vary the decision in relation to Documents 1, 2, 10, 12, 15, 16, 17, 18 and 21 by setting aside parts of the decision and substituting other decisions. Given the nature of the variations, my decision that the FTC’s claim that parts of Documents 1 and 21 are irrelevant and access should be given to a copy from which those parts have been deleted is of no practical consequence. In relation to Documents 3, 8, 13, 14, 20, 24, 25 and 26, I have affirmed the SCT’s decision dated 20 May 2010.
BACKGROUND
At Attachment A I have set out the detailed findings that I have made as to the course of events involving decisions made by FTC and complaints made by Ms Denehy to it and to the SCT. In this section of my reasons, I will give only an outline of those events before moving to the request made by Ms Denehy under the FOI Act.
Decisions, complaints and reviews regarding FTC’s apportionment of the superannuation death benefit
Ms Denehy’s father died on 1 July 2007 as a member of the FSS. He did not complete a form nominating the beneficiaries of his superannuation death benefit. As provided under FSS’s Rules, which are part of its Trust Deed, distribution of that benefit became a matter for FTC. It made a decision apportioning it among Mr Denehy’s wife, Ms Carole Denehy, and the three children of his first marriage. Ms Denehy and her brother and sister were not happy with that decision and, on their behalf, Ms Denehy lodged a complaint with FTC, which referred it to its Disputes Committee. The Disputes Committee asked for information from Ms Carole Denehy and Ms Denehy and sought legal advice. Before it made a decision on her complaint, however, Ms Denehy lodged a complaint with the SCT under the Superannuation (Resolution of Complaints) Act 1993 (SRC Act). The Disputes Committee subsequently reached a decision and, having done that, then complied with its obligation to give material under the SRC Act relevant to the complaint to the SCT. It advised Ms Denehy that it had done so and advised her to contact the SCT if she wanted to have access to that material. In view of the Dispute Committee’s decision, the SCT treated the complaint as finalised.
In the meantime, Ms Denehy had asked FTC for further information relating to the death of her father and, later, for access to the material it had given to the SCT in complying with its obligation under s 24 of the SRC Act. Various correspondence followed between Ms Denehy and FTC with FTC’s refusing to give her access to all but the incomplete form relating to the nomination of beneficiaries. Ms Denehy made further complaints to both FTC and SCT before making a request under the FOI Act.
Request under FOI Act
Ms Denehy’s requested access under the FOI Act to:
“1. All documents contained in SCT file 08-01517 (Emma Louise Denehy & First State Super Member: Brian Vaughan Denehy – Member No ….), including but not limited to the documents submitted to the SCT in relation to this file by First State Super, FSS Trustee Corporation and their related entities. An index of documents submitted to the SCT in relation to this file was provided in correspondence to the applicant dated 17 September 2008. A copy of this correspondence is attached to this application. Particular reference is drawn to items 23-27 of the trustee’s index, namely:
23.Copy of legal advice from TurksLegal [‘the TurksLegal advice’]
24.Copy of the Trustee’s submission to the Disputes Committee [‘the Trustee’s submission’]
25.Copy of the minutes from the Disputes Committee’s meeting held on 29 May 2008 [‘the Dispute Committee meeting minutes of 29 May 2008’]; and
26.Copy of the minutes from the Disputes Committee’s meeting held on 27 August 2008 [the Dispute Committee meeting minutes of 27 August 2008’];.
27.Copy of the Trustee Board’s delegation.
2.All documents contained in SCT file 08-01518 (Bronwyn Jane Denehy & First State Super Member: Brian Vaughan Denehy – Member No. …).
3.All documents contained in SCT file 08-01519 (Andrew Paul Denehy & First State Super Member: Brian Vaughan Denehy – Member No. …).
4.All documents contained in SCT file 08-02474 (Emma Louise Denehy & First State Super Member: Brian Vaughan Denehy (Deceased) – Member No. …).
5.All documents contained in SCT file 08-02475 (Bronwyn Jane Denehy & First State Super Member: Brian Vaughan Denehy (Deceased) – Member No. …).
6.All documents contained in SCT file 08-02476 (Andrew Paul Denehy & First State Super Member: Brian Vaughan Denehy (Deceased) – Member No. …).
7.Any other documentation held by the SCT that relate to the distribution of any superannuation death benefits of Brian Vaughan Denehy …”.[6]
[6] T documents at 31
SCT’s consultations on receiving request
The SCT consulted Ms Denehy’s brother and sister and her stepmother, Ms Carole Denehy, under s 27A of the FOI Act because the documents, or some of them, contained personal information about them, or some of them. Ms Bronwyn Denehy and Mr Andrew Denehy both gave the SCT permission to grant their sister access to the documents under the FOI Act[7] but Ms Carole Denehy did not.[8]
[7] Exhibit 2 at FG4
[8] Exhibit 2 at [6]
The SCT also consulted with FTC under s 27 in respect of information included in the documents and concerning its business, commercial or financial affairs. FTC objected to Ms Denehy’s having access to the documents it had provided to the SCT.[9]
[9] Exhibit 2 at [5]
SCT’s decisions
On 15 February 2010, Ms Eva Karakostas, who was then the SCT’s FOI Officer, decided to give access to all of the documents listed in items 2 to 6 of the request (“complaints files”). Relying on s 42 of the FOI Act, she denied access to the advice given to FTC by TurksLegal and a further advice described as having been given by Legal Counsel to the SCT in their entirety and to part of FTC’s submission to the Disputes Committee and the minutes of the Disputes Committee’s meeting held on 27 August 2008. Exemption was claimed under s 43(1)(c)(i) for parts of FTC’s submission and the minutes of the Disputes Committee’s meetings on 29 May 2008 and 27 August 2008 and for the whole of the Board’s delegation. References to any personal information relating to Ms Carol Denehy was also deleted on the basis it was exempt under s 41 of the FOI Act.[10]
[10] Exhibit 2 at FG5
No mention is made in the decision of the minutes of the Disputes Committee’s meeting on 29 October 2008. This is not a document to which Ms Denehy made specific reference in her request but it could be thought to be captured within the catch-all description given at its conclusion i.e. “Any other documentation held by the SCT that relate to the distribution of any superannuation death benefits of Brian Vaughan Denehy …”.
Ms Denehy asked the SCT to review its decision under s 54 of the FOI Act. It did so on 20 May 2010 and effectively affirmed its decision.[11]
[11] Exhibit 2 at FG7
SCT grants access
On 27 May 2010, Ms Fiona Galbraith was the SCT’s acting FOI Officer. She wrote to Ms Denehy advising her that the SCT would be in a position to send her the documents, totalling over 1,936 pages, by 19 June 2010. On 21 June 2010, Ms Galbraith wrote again to Ms Denehy enclosing:
“… documents with respect to your complaint (reference numbers 08-02474 and 08-01517); the complaint of Bronwyn Jane Denehy (reference numbers 08-02475 and 08-01518) and the complaint of Andrew Paul Denehy (reference numbers 08-02476 and 08-01519).”[12]
Her letter concluded:
“Please note documents which have already been provided to you, either in connection with your complaint to the Tribunal or separately to or by the Trustee, have not been provided, other than in some instances where they have been on the reverse side of another document.”[13]
[12] Annexure D to SCT’s submissions dated 31 August 2011
[13] Annexure D to SCT’s submissions dated 31 August 2011
Consistently with the decision, access was granted to the documents in the SCT’s decision. It was also given to the minutes of the Disputes Committee’s meeting held on 29 October 2008. Material was blocked from the copy to which access was given on the same basis on which it had been blocked from the copy of the minutes of the Disputes Committee’s meeting of 29 May 2008 i.e. under s 43(1)(c)(i).
Proceedings in the Tribunal
At the time Ms Denehy applied to the Tribunal for review of the SCT’s decision on 9 July 2010, exemption had been claimed under ss 41, 42 or 43 for 32 documents either in whole or in part. During the course of the proceedings leading to the hearing, the SCT identified a further 61 documents as coming within the scope of Ms Denehy’s request.
On 4 May 2011, the parties agreed upon a number of documents to which access would be granted, either in full or in part, to Ms Denehy. A decision reflecting the terms of the agreement was made under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act) on 12 May 2011.
CONSIDERATION
I will begin by considering a couple of general propositions regarding the interpretation of the FOI Act and then examine the documents by reference to each of the exemptions claimed by either the SCT or FTC. Finally, I will consider the passages claimed to be irrelevant to the request in light of s 22 of the FOI Act.
FOI Act: general considerations
There are some general propositions that underpin the FOI Act and its interpretation and application:
(1)A person’s reasons for seeking access to a document under the FOI Act are irrelevant.[14]
(2)The use a person intends to make of information in a document to which he or she has been granted access under the FOI Act is irrelevant.
(a)The person would have to bear in mind that he or she could not call on s 91 of the FOI Act to shield him or her from an action for defamation, breach of confidence or infringement of copyright if he or she chose to disclose information contained in documents to another.
(i)That protection is available only to the Commonwealth, agency, Minister or an officer having authority to make decisions in respect of requests in relation to decisions granting access in the bona fide belief that the FOI Act required access to be given.
(3)“... [N]o provision is made in the Act for restricting dissemination of information contained in a document to which access is granted. …”[15]
[14] FOI Act, s 11(2)
[15] Colakovskiv Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 440; 122-123; 272; 10-11 per Jenkinson J
I will also make a brief reference to the role of FTC in this case. Had FTC applied for review of the decision made by the SCT after being consulted in relation to information concerning its business affairs, it would have had to limit its evidence and submissions to matters relevant to the application of that exemption. It could not have raised issues relating to legal professional privilege under s 42 for its right to apply for review of SCT’s decision does not extend to that under the FOI Act.[16]
[16] Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461; 218 ALR 384; 85 ALD 24 at [20]; 467; 389; 29 per Branson J citing Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156 at 161 per Bowen CJ, Beaumont and Wilcox JJ
As it is, FTC applied to be joined as a party and was made a party under s 30(1A) of the AAT Act. The power to make a person a party to a proceeding under s 30(1A) is a power in relation to the whole of the proceeding and not simply part of it. As the proceeding to which FTC was made a party is a proceeding for the review of a decision, it must follow that the person is a party to all of the incidental applications that are made in the course of, or in connection with, the application for review.[17]
[17] This is the essence of fuller reasons I gave for reaching the conclusion in Re ABCD and Commissioner of Taxation and Australian Securities and Investments Commission (Party Joined) [2008] AATA 898; (2008) 75 ATR 393; 50 AAR 287 at [46]-[123]; 406-425; 300-320
There was some consternation lest Ms Denehy had inadvertently been given access to documents when FTC had claimed that they were exempt. Assurances have been given that this is not so but FTC maintains its concerns. It was submitted that “… where there is any uncertainty, the Tribunal ought to find that documents have not been released pursuant to FOI.”[18]
[18] FTC’s submissions regarding Amended Schedule of Documents at [4]
I do not think that I have the power to make such a finding. My power is limited to reviewing decisions of the sort set out in s 55(1). Generally, as in this case, it is limited to reviewing a decision of that sort made by an agency after conducting an internal review under s 54 of an initial decision on a request made under the FOI Act. The decision of which Ms Denehy has applied for review is “a decision refusing to grant access to a document in accordance with a request”.[19] Among the other types of decision of which review may be sought is a decision purporting to grant, but not actually granting, access to a document (s 55(1)(ab) or a decision deferring access (s 55(1)(b)). None of the types specified in s 55(1) refers to a decision granting access either under, or not under, the FOI Act. Therefore, the Tribunal has no power to review such a decision. In the absence of such a power, it is not relevant to make a finding whether access to a particular document was granted under the FOI Act or not.
[19] FOI Act, s 55(1)(a)
Section 41: the provision
Section 41(1) provides that:
“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”
The expression “personal information” is defined in s 4(1) to mean:
“… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
Section 41(1) is qualified by s 41(2):
“Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.”
The qualification to s 41(2) found in s 41(3) is concerned with a request for a document containing information provided by a qualified person acting in his or her capacity as a qualified person. A “qualified person” is a “… person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being …”.[20] The qualification is not relevant in this case.
[20] FOI Act, s 41(8)
If an agency or Minister decides that a person might reasonably wish to contend that a document, to which a request made under the FOI Act relates, is an exempt document, the agency or Minister must follow the procedure set out in s 27A. In summary, that procedure requires them to give the person whose personal information appears in the document a reasonable opportunity to make submissions about whether access to the information should be given. They must have regard to any submissions that are made[21] as well as to the following matters:
“(a) the extent to which the personal information is well known;
(b)whether the person to whom the personal information relates is known to be associated with the matters dealt with in the document;
(c)the availability of the personal information from publicly accessible sources;
(d)such other matters as the officer, Minister or reviewer, as the case requires, considers relevant.”[22]
[21] FOI Act, s 27A(1)(b)
[22] FOI Act, s 27A(1A)
Section 41: the interpretation and application of the provision
Various authorities have considered the concept of “personal information” as it appears in the FOI Act. I considered them in my earlier decision of Re Lobo and Department of Immigration and Citizenship[23] and adopt my analysis of them at [287] to [331] as well as that at [137] to [212] in Re LJXW and Australian Federal Police.[24] Rather than repeat them, I summarise some of the essential features of the privilege that are relevant for the purposes of this case:
[23] [2011] AATA 705; (2011) 56 AAR 1
[24] [2011] AATA 187; (2011) 120 ALD 516
(1)The information that is protected from disclosure by s 41 is all information concerning or relating to an individual, and so “about … [a] person” extending from the most intimate information or opinion about the individual’s private or domestic affairs to that about work or employment and activities conducted in public.
(2)The accuracy or truth of the information or validity of the opinion is irrelevant.
(3)“… Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s ‘personal affairs’….”.[25]
[25] Colakovski v Australian Telecommunications Corporation [25] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 436; 118; 268; 7 per Lockhart J, with whom Jenkinson and Heerey JJ agreed.
(a)This is equally applicable in considering what amounts to “personal information”.
(4)The individual must either be named or be an individual whose “… identity is apparent, or can reasonably be ascertained, from the information or opinion.”[26]
[26] Definition of “personal information”: FOI Act, s 4(1)
(a)If this is so when regard is had solely to the information or opinion, the criterion for exemption is met;
(b)It is also met if the identity of the individual is apparent or can reasonably be ascertained by reading the information or opinion in the document with that in the public arena. The information or opinion in the document is no less the source or origin of the identification so that it can still be said that the individual’s “… identity is apparent, or can … be ascertained, from the information or opinion.”
(i)The ease with which publicly available information can be obtained is relevant in determining whether an individual’s identity “can reasonably be ascertained” (emphasis added) and not in determining the base question i.e. whether the individual’s “… identity is apparent, or can … be ascertained, from the information or opinion.”
∙The public information must itself be reasonably available before it can be said that identity can be reasonably ascertained on this basis. Speculation or conjecture that it may be available is not enough.
(ii)The criterion for exemption would not be met if regard must be had to information that is not available to the public.
(5)If a document contains personal information relating to the person requesting access and another, s 41(2) requires that the document be analysed to determine its nature and to apply the exemption in s 41(1) accordingly:[27]
[27] I do not find this an easy area of the law and my full reasons for these statements of conclusion are found in Re LJXW and Australian Federal Police [2011] AATA 187; (2011) 120 ALD 516 at [195]-[205];572-575
Categorisation of content
Reconciliation of ss 41(1) and (2)
(a)
Content having a connection only with (and so matter relating to) the person requesting access to document.
The effect of s 41(2) is that the exemption in s 41(1) cannot be claimed.
(b)
Content relating to both the person requesting access to document and to another and so is common to both.
If there is nothing about the common information which gives it a quality of being personal information about another person alone, the effect of s 41(2) is that s 41(1) cannot be claimed.
(c)
Content over and above the common content and is “information or an opinion … about an individual …” other than the person requesting access.
Section 41(2) has no application and the exemption under s 41(1) can be claimed.
(6)“… [W]hether or not disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved”.[28]
[28] Wiseman v The Commonwealth [1989] FCA 434; Sheppard, Beaumont and Pincus JJ
(a)The exemption in s 41 is Parliament’s resolution of any inconsistency between the protection of two public interests: the public interest in the disclosure of information held by government and the public interest in protecting the personal privacy of individuals whose information is held by government. The balance between the two is achieved by determining whether the personal privacy of that third party might reasonably be disclosed by granting access under the FOI Act.[29]
[29] Re Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259 per Deputy President Hall and see also the subsequent case of in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [35]; 438; 121; 270; 9 per Lockhart J
(i)Therefore, s 41 should not be recast in terms of its being a statutory expression of a “public interest in protecting personal privacy”.
(ii)There is no room in s 41 to introduce a public interest test or criterion.
(b)In deciding whether disclosure under the FOI Act is unreasonable, regard must be had to the matters in s 27A(1A) as well as other matters the decision-maker considers relevant:
“… including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.”[30]
[30] Re Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259
(i)In practical terms, this means that regard must be had to the consequences of disclosure in the public arena and the effect of those consequences on the individual.
(ii)Except in so far as they affect the individual, the effect of disclosure on persons other than the individual or on activities undertaken in the public or private arena is not a relevant consideration.
(c)What is unreasonable disclosure in terms of s 41(1) must be judged by reference to an objective standard and not by reference to the interests, knowledge or reasons of the person requesting access or by reference to the identity of that person.
(d)“ If documents contain information which could provide valuable evidence or lead to evidence that would be useful or material in establishing the commission of an offence under the law, that is a matter which in my view may be taken into account in determining whether the disclosure of the information would be unreasonable under s 41(1). …”[31]
Section 41: Documents 2, 8, 10, 12, 13, 14, 15 and 18
[31] Colakovski v Australian Telecommunications Corporation [31] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 437; 120; 269; 8 per Lockhart J
A.Whether documents contain personal information: Documents 2, 8, 10, 13, 14 and 18
Having read the documents for which an exemption is claimed under s 41(1), I am satisfied that, other than in relation to some passages in Document 18, the information in the passages for which exemption is claimed in each of the documents is information about an individual or individuals. It contains factual information, in the sense that it records events and the personal affairs of an individual or of individuals. It is opinion information in the sense that it records that individual’s views. Whether one or the other, I am satisfied that it is information about a particular individual or individuals whose identity is, or identities are, apparent from the information or opinion expressed in the passages for which exemption is claimed. It is personal information as that expression is defined in s 4(1) of the FOI Act.
Document 18 is a copy of a letter written by FTC to the SCT with attachments. The covering letter contains some personal information relating to identifiable person or persons but it cannot be said to do so in its entirety. I will set out my findings in relation to each of its Folios:
(1)Folio 1301 does not contain personal information except for the heading and the third and fourth paragraphs on Folio 1301:
(a)The other information on that page is information that provides background to the complaint made to the SCT but is of a procedural nature or information of a generic nature relating to the FSS.
(2)Folio 1300:
(a)does not contain personal information except for paragraphs numbered “1.”, “2.”, “4.”, “5.”, the second paragraph of “6.” and “7.” and the last paragraph. The remaining information is of a procedural nature or information of a generic nature relating to the FSS.
While I have decided that the information in Document 18 for which exemption is claimed under s 41 is personal information, I need to mention the particular passage at Folio 1300 appearing in the first four lines of the paragraph on Folio 1300, numbered “1.” At one level, it could be regarded as containing information that is properly described as a means of identifying something or someone by reference to an individual but not as information “about” that individual in the sense that it is not information “concerning or relating to”[32] that individual. That might be the description that the information retains but I have decided that it has gained a different quality by its inclusion in Document 18. The context in which it appears changes the information from something that identifies an individual to something that is about that individual. It is personal information as defined in s 4(1) of the FOI Act.
[32] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
B.Whether s 41(2) applies to personal information that may be included in documents about Ms Denehy: Documents 2, 8, 10, 12, 13, 14 and 15
B.1Documents 2, 8, 10, 13 and 14
Taking folios 289 to 291 of Document 2 as an example, there are passages that refer to an individual or to other individuals. It could be said to be personal information about those other individuals but it is no less personal information about the individual to whom I have referred in the previous paragraph. An individual to whom reference is made is Ms Denehy. As she is the person who made the request, I must consider the application of s 41(2) of the FOI Act and ask myself the three questions I have set out at [26(5)] above. When I do that, I come to the conclusion that, while the folios can be said to be personal information about both individuals, the content in those folios is content over and above the common content and is “information or an opinion … about an individual …” other than the person requesting access i.e. Ms Denehy. Therefore, s 41(2) does not come into operation to make the exemption s 41(1) ineffective or inapplicable.
Documents 8, 10, 13 and 14 can also be construed as containing some personal information about Ms Denehy and some about other individuals. That is found in the second and third paragraphs of Folio 623 of Document 8, the second paragraph under the heading “Provisions of the Will” on Folio 727 of Document 10, the words from “the” at the end of the first line to the full stop on the third line of Item 2 of Folio 732 of Document 10, Documents 13 and 14 and the second paragraph on Folio 1109 of Document 15. For the reasons I have given in relation to Document 2, I am not satisfied that s 41(2) comes into operation to deprive s 41(1) of effect.
Returning to Document 2, the SCT claims that three passages on Folios 295, 296 and 298 are exempt under s 41(1). I am satisfied that the passages on Folios 295 and 298 refer only to the personal information of an individual or of individuals other than Ms Denehy. Therefore, s 41(2) has no application.
The passage on Folio 296 of Document 2 contains two references to Ms Denehy as a family member. The information is personal information about her but, in its context, the information has a character over and above being personal information about her. It is the personal information of another individual or of other individuals. Section 41(2) has no application to exclude the operation of s 41(1).
B.2 Document 15
Document 15 is an email from FTC to Ms Carol Denehy. Apart from the reference to two names other than those of Ms Carol Denehy and Ms Denehy, the email contains personal information relating to Ms Carol Denehy and personal information relating to Ms Denehy. The two can be separated from each other and neither has the character of personal information about both Ms Denehy and another individual or individuals. This is personal information about Ms Denehy alone. Consequently, the exemption in s 41(1) does not have effect in relation to Ms Denehy’s request to deny her access to it under the FOI Act. That is the effect of s 41(2).
The passage to which this finding relates is that appearing in the second paragraph, which begins with the word “I”, in its entirety with the exception of the two names, other than that of Ms Denehy, appearing in the first line of that paragraph.[33]
[33] See [57]-[58] below considering whether it is reasonable to disclose those names
B.3 Document 12
Document 12 is a letter and attachment from FTC to the SCT. The covering letter from FTC to SCT refers to an individual other than Ms Denehy in the first sentence of the second substantive paragraph. It is personal information as that term is defined in s 4(1).
The attachment to the covering letter itself has three attachments. The first two contain personal information relating in their entirety to an individual other than Ms Denehy. The third contains personal information relating to individuals other than Ms Denehy. That is also personal information within the terms of the definition.
Turning to the main attachment to the covering letter, it has five folios. I have read each in determining whether they contain personal information and have come to the following conclusions:
Folio 777
Paragraphs 1 and two are the personal information of an individual other than Ms Denehy;
Paragraph 3 (which continues on to Folio 776) contains personal information about an individual or individuals other than Ms Denehy.
Folio 776
The first three lines of the first full paragraph refers to individuals including Ms Denehy. In one sense, the references are about other individuals and could be regarded as their personal information but they are no less the personal information of the individual who is the author of the document.
A passing reference is made to Ms Denehy in each of the remaining four paragraphs on Folio 776 with the fourth continuing on to Folio 775. At the broadest meaning of the word “about”, they might be thought to be information about her but it is not about her in the sense of centring on her or in the sense of her being its subject. Rather, the references are merely incidental references in paragraphs whose subject matter centres squarely on another, or on other, individuals. The information is the personal information of that other individual or those other individuals. It is not the personal information of Ms Denehy.
Folio 775
The first two full paragraphs contain personal information about an individual or individuals other than Ms Denehy.
The third and fourth full paragraphs are the same but the second sentence of the third full paragraph is personal information about Ms Denehy alone. That is information that comes within s 41(2) and exemption cannot be claimed for it under s 41(1).
Folio 774
This folio, which continues onto Folio 773, contains information about various individuals. In so far as that individual might be about Ms Denehy, it is equally about other individuals. That might come about because she is part of a group of individuals to whom the information relates. It might come about because the material is an expression or repetition of an individual’s opinion about her or the expression or repetition of information about her. In the context, any expression or repetition that there might be is equally an expression of information about the individual expressing them. This is not personal information that comes within s 41(2) of the FOI Act. Therefore, exemption can be claimed for it under s 41(1).
Folio 773
Folio 773 contains personal information about an individual other than Ms Denehy.
C.Would disclosure of personal information be unreasonable: Documents 2, 8, 10, 12, 13, 14, 15 and 18
In so far as the other documents for which s 41 has been claimed are concerned, I must now decide whether their disclosure under the FOI Act would be unreasonable. Disclosure under the FOI Act is to the world at large without restriction. An agency cannot impose limitations upon that disclosure although laws, such as defamation and copyright, may impose limits upon the use that the person given access may make of it.[34] Unrestricted access is a relevant consideration but so too is the fact that this is information that has already been disclosed by the individuals to the SCT or, if not disclosed by them, has been disclosed to their knowledge.
[34] Protection against certain actions is given to those who give access under the FOI Act by s 91 and against committing certain criminal offences under s 92. That protection is not extended to those who are given access.
C.1 Considerations relating to context in which information collected
If the SCT were a court and had the information been disclosed in the course of an open trial or set out in a judgment available to the public it would be difficult to say that disclosure of the personal information under the FOI Act would be unreasonable. The same would be true of this Tribunal for, although it is not a court, it is generally required to conduct its proceedings in public.[35] It is obliged to give reasons and, although not obliged to publish its reasons under the AAT Act, has done so since its early days as that is consistent with the public nature of its proceedings.
[35] Administrative Appeals Tribunal Act 1975, s 35(1) and see also s 35(3)
Unlike the Tribunal, the SCT is not obliged, or even permitted, to conduct its review meetings in public. It does not make provision for documents and information to be publicly available and, in so far as it makes its decision publicly available, they are devoid of material identifying not only the complainant and other individuals but all parties. This is consistent with the fact that the SCT operates in an environment in which the dissemination of information and documents is closely controlled by the SRC Act. That legislation permits the SCT to disclose it to a party to a complaint and is not required to seek the consent of the person who produced it before doing so. Where disclosure is to be made to a person other than a party, the SCT must generally seek the person’s consent to disclosure. Exceptions apply in relation to information and documents disclosed to the Australian Securities and Investment Commission (ASIC) or the Australian Prudential Regulation Authority (APRA)[36] when the SCT complies with its statutory duties under ss 64, 64A and 65 or, if the SCT refers the complaint to a complaint-handling body prescribed under s 22A(1), to that body. Information may be disseminated to other members of the superannuation fund in relation to which the complaint was made. If information is to be disseminated more widely, it must be in a way that does not enable the identification of the parties to a complaint.
[36] SRC Act, s 3(1) and the Superannuation Industry (Supervision) Act 1992, s 10(1)
It is apparent from this outline that the SRC Act closely controls the use that may be made of the information provided to it. There is another matter that is not given expression to in the legislation but is, I think, implicit in it just as it is implicit in the AAT Act.[37] That matter relates to the limitations, if any, that apply to the use that may be made of information or documents disclosed under the SRC Act to a party to a complaint. If there are not controls, then that would be relevant in considering whether disclosure under the FOI Act would be unreasonable.
[37] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 472 per Sundberg J. I refer also to my own analysis of the principles in Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361; (2009) 109 ALD 217; 50 AAR 191 at [33]-[61]; 225-233; 200-207
For all its strict controls on the SCT in its disclosure of information, the SRC Act does not impose any express limitations upon the use that may be made of information given to the SCT and communicated to the parties in according them procedural fairness. Can the parties to whom the information is communicated use that information for purposes other than those concerned with the resolution of the complaint in the SCT? It seems to me that they cannot. In reaching that conclusion, I have referred to the limits on use that are imposed upon parties in relation to material disclosed to a court under compulsion – as would be the case in complying with an order for discovery – but not admitted in evidence. Like this Tribunal, the SCT is an inquisitorial body. Unlike this Tribunal, it never conducts its proceedings in public. Both have power to require the production of documents even though the means of exercising that power differs.
In so far as documents are produced as a result of the exercise of those powers, there is no difference between the SCT, the Tribunal and a court. The public policy reasons remain the same. Mason CJ, with whom Dawson and McHugh JJ agreed, set them out in Esso Australia Resources Ltd v Plowman:[38]
“… The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.” [39]
[38] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391
[39] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391 at 32; 403 per Mason CJ
Reference was also made to them by Mansfield J in Re Addstone Pty Ltd (in liq); Ex parte Macks:[40]
“The duty which is therefore placed upon the recipient of documents procured in the course of discovery arises because, absent the proceedings, there is no entitlement to those documents. They are private. They need not necessarily contain confidential or commercially sensitive material to have that quality. It exists because of the nature of the documents, and the circumstances in which they came to be released to the other party, and not necessarily because of their contents.”[41]
Lord Hoffman took up the theme in Taylor v Director of the Serious Fraud Office:[42]
“I am not sure that it is right to treat the implied undertaking in civil proceedings merely as an inducement to a litigant to disclose documents which he might otherwise have been inclined to conceal. I think that it is more a matter of justice and fairness, to ensure that his privacy and confidentiality are not invaded more than is absolutely necessary for the purposes of justice.”[43]
[40] (1998) 30 ACSR 162
[41] (1998) 30 ACSR 162 at 166
[42] [1999] AC 177
[43] [1999] AC 177 at 210
Although the implied undertaking is limited in the courts to documents produced under compulsion and later not admitted in evidence, it seems to me that these policy reasons are equally applicable to all information and documents given to the SCT whether under compulsion or not. The provisions of s 63 under the heading “Secrecy” are very restrictive and do not even permit the SCT to produce a document to a person or court if acquired in connection with a complaint or its review under the SRC Act.[44] It would be inconsistent with the SCT’s obligation if a party to a complaint had acquired information or a document in the course of the review of a complaint but were permitted to use it for unrelated purposes.
[44] SRC Act, s 63(2); see [185]-[187] below
The regime imposed by the SRC Act, when read with the policy reasons for the finding of an implied undertaking in the courts and this Tribunal, leads to the conclusion that there is such an undertaking that applies in the SCT. Given the differences between the SCT and the courts and the confidential nature of its proceedings, it seems to me that the undertaking applies to all of the information and documents the SCT obtains in the course of a complaint and its review.[45] That is a relevant factor in deciding what amounts to unreasonable disclosure of personal information if access were given to documents under the FOI Act.
[45] The trustee must give the SCT documents under s 24 of the SRC Act and may require further documents under s 25 of the SRC Act
C.2 Considerations relating to information otherwise publicly available
Also relevant is information that individuals have made available to the public or that is available about them generally. Ms Denehy has referred to an extract from a blog posted on 24 August 2011[46] and to others dated 15 February 2008 and 2 May 2008.[47] She has described them as written by Ms Carol Denehy. That may be so but they do not appear under her name but under what is obviously a pseudonym. It may be that those who know the “story” of the author of those blogs may well be able to recognise the identity of their author.
[46] Ms Denehy’s submissions at [161]
[47] Affidavit of Ms Denehy sworn 23 June 2011 Exhibit ED10 and Exhibit ED17, Annexure 1 to Annexure 6 of ED17
If the author is indeed Ms Carol Denehy, I do not think it fair to say, as Ms Denehy does, that as she has chosen to publish information on the internet about her medical conditions, disclosure of other information under the FOI Act is reasonable. One does not necessarily follow the other. Certainly, writing a blog on a publicly accessible internet site is public disclosure and might be relevant. If, for example, the information claimed to be exempt under s 41(1) had already been published by the individual concerned on his or her blog so that he or she were identifiable, that would weigh against disclosure under the FOI Act’s being unreasonable. If it had been published but under a pseudonym so that the identity of the individual were not apparent, that would weigh in favour of disclosure’s being unreasonable. If the individual had published personal information on the internet that was different from that sought in the document requested under the FOI Act, that might be a relevant consideration as would the fact of whether it was published in a manner identifying the author or not.
I have been given a copy of a website on which Ms Carol Denehy had, on 28 June 2007, posted photographs of herself and others engaged in their craftwork. On 1 June 2011, she posted a comment on a website established for those engaged in that craftwork about the way in which she came to be involved the craftwork. Four replies were posted. Each person wrote about her own experiences in the craftwork.[48] I will return to the significance, or otherwise, of these posts below.
[48] Affidavit of Ms Denehy, Exhibit ED44
C.3 Documents 2, 8, 10, 12, 13, 14 and 18
In this case, I am satisfied that the information in some of the blogs or other material appearing on the internet sites would be sufficient to identify the author to those who knew that authors’ recent history and health issues. Those that are written under a pseudonym, do not have sufficient detail to identify the author to those outside that group of persons. Therefore, the information is available to those in the world who have access to the site and who choose to read it but the identity of the author is available only to those among those people who know of the author otherwise than through the blog.
On the assumption that the blogs have been written by Ms Carol Denehy, I have also compared the information they contain with the information for which exemption is claimed under s 41. Where the personal information relates to Ms Carol Denehy, they are essentially different in substance and tone. By tone, I am referring to the relative formality in tone of the documents held by the SCT and relative informality in the blogs. The documents held by the SCT are written in relation to the complaint, as is to be expected, whereas the blogs give the impression that the author is using the blog as a sounding board. The blog of 24 August 2011 does acknowledge that the author knows that what is written is being shared “with the anonymous public”.[49]
[49] Ms Denehy’s submissions at [161]
The photograph and the craftwork entry are also both published to the anonymous public but not under a pseudonyn but under Ms Carol Denehy’s name. All are concerned with craftwork and have nothing to do with the subject of the information in the documents I must consider in this case. The fact that Ms Carol Denehy publishes that material to the public on the internet does not mean that she is prepared to reveal all of her personal information. If she is the anonymous blogger in the other material, the fact that she uses a pseudonym in that environment underlines my finding that she is prepared to reveal information of a personal nature on the internet but is not prepared to reveal her identity to the world at large; only to those who know her or her “story”.
Given the pseudonym that is used on the blogs revealing personal details beyond craftwork, the difference in substance between what is blogged and the information in the documents requested, and the fact that the SCT’s proceedings are carried out in private, I am satisfied that disclosure under the FOI Act of personal information about Ms Carol Denehy appearing in the documents, to which access is sought and which are in the possession of the SCT, would be an unreasonable disclosure of that information under the FOI Act.
In so far as all but Document 15 contain personal information about individuals other than Ms Carol Denehy or Ms Denehy, I am also satisfied that disclosure under the FOI Act of that personal information would be an unreasonable disclosure. It is information given to a dispute resolution body – the SCT – for a particular purpose and in circumstances in which its disclosure to third parties is strictly controlled. Arguably, the parties to the proceeding are not permitted to use it for purposes unrelated to the SCT proceedings. To disclose it under the FOI Act into an environment in which there are no such controls and restrictions is an unreasonable disclosure of personal information.
Therefore, I am satisfied that the personal information I have found in Documents 2, 8, 10, 12, 13, 14 and 18 (and that does not come under s 41(2)) is exempt under s 41 of the FOI Act.
C.5Document 15
As I have said, the second paragraph of Document 15 refers to two names other than that of Ms Denehy. The individuals named have both advised the SCT that they have no objection to the release of their personal information contained in documents related to Ms Denehy’s request under the FOI Act.[50] They did so in response to a letter from the SCT seeking their views.[51] Although specific reference is made to Ms Denehy’s request, disclosure under the FOI Act is to the world at large. That is the nature of access under the FOI Act. Just as a person’s right of access is not determined by reference to his or her interests in gaining access, a person’s objection, or lack of objection, must be read as the person’s response to access under the FOI Act regardless of the identity of the person making the request. Even so, their responses must be read as referring to disclosure of the particular passages in the particular documents in issue in this case. Their permission cannot be read as extending to any other passages or documents, unrelated to the documents in this case, in which their names may be mentioned.
[50] T documents at 43 and 44
[51] T documents at 39-42
That is a relevant factor as are the factors I set out in relation to Documents 2, 10, 12, 13 and 14. Those other factors favour confidentiality but they are outweighed on this occasion by the consent of the individuals concerned in so far as that particular passage is concerned. It is purely factual information that does not reflect on an individual adversely or otherwise. In so far as the confidential regime of the SCT is concerned, the information could be said to be concerned with procedural matters rather than matters of substance. In view of that, considerations of confidentiality do not carry the weight that they carried in relation to Documents 2, 10, 12, 13 and 14. In those documents, the personal information is closely related to a complaint and its resolution. In some instances, the personal information about the two particular individuals is also personal information about another individual or other individuals. Therefore, I have decided that disclosure of the names of the two individuals in the second paragraph of Document 15 is not an unreasonable disclosure of personal information within the meaning of s 41(1).
Having regard to my earlier conclusion in relation to the second paragraph of Document 15, that means that none of the second paragraph is exempt under s 41 but that the remainder of the document is exempt under that provision.
In so far as the remaining passages of Document 15 are concerned, the reasons I have given in relation to Documents 2, 10, 12, 13 and 14 persuade me that their disclosure under the FOI Act would be an unreasonable disclosure of personal information. Document 15 is exempt under s 41 except in relation to its second paragraph.
Section 42: the provision
Section 42(1) of the FOI Act provides that:
“A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”
It is important to note that the exemption is focused on circumstances in which a document would be privileged from “production” alone. Whether the document would be admissible in evidence is an irrelevant consideration.[52] Waiver of that privilege is a relevant consideration. If it has been waived, the document would no longer be privileged from production in legal proceedings on the ground of legal professional privilege and would not be exempt under s 42(1).[53]
[52] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [4]; 55; 125
[53] Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 5 at [26]-[27] (Reversed on appeal in relation to the application of the principles of waiver but not on this point: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 210 ALR 220; 80 ALD 247; 40 AAR 118; 57 ATR 52)
The exemption is qualified by s 42(2). That qualification relates to a document of a kind referred to in s 9(1). In general terms, documents referred to in
s 9(1) are:
“… documents that are provided by an agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations or other detriments, to which persons are or may be entitled or subject …”
The effect of the qualification in s 42(2) is that, where a document is a document of this kind and contains matter which would otherwise be exempt under s 42(1), the exemption under s 42(1) cannot be claimed. None of the documents identified as the subject of the request comes within the category described in s 9(1).
Section 42: the interpretation and application of the provision
Legal professional privilege is a concept developed by the common law and it is to that concept to which s 42 refers. It is a concept that has been the subject of extensive consideration in the High Court and other superior courts. I set some of them out in my earlier decision in Re Philip Morris Limited and Prime Minister[54] and adopt my analysis of them at [28] to [130]. Rather than repeat them, I summarise some of the essential features of the privilege that are relevant for the purposes of this case:
[54] [2011] AATA 556; (2011) 122 ALD 619
(1)Legal professional privilege may only be abrogated by the clear words of a statute or by necessary implication.[55]
[55] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 553; 564 [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ
(2)A person’s interest in resisting production of a document and another’s in having access to it are irrelevant considerations in determining whether legal professional privilege applies.
(3)“The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. … [T]he actual form of the communication or recording is irrelevant.”[56]
[56] Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 per McHugh J; see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
(a)If privilege attaches under the legal advice limb, the communication must have been made or material recorded for the dominant purpose of giving legal advice:
“ The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose …. The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time …”[57]
[57] [2005] FCA 1247; (2005) 225 ALR 266 at [30]; 279. Appeal allowed, but not on this point, in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ
(b)If privilege attaches under the litigation limb, it is enough if the communication was made or material recorded for the purpose of confidential use in litigation. There is no need to establish that the dominant purpose in its being made or recorded was that of obtaining or giving legal advice.[58]
[58] See AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J
(4)“The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: but it does not extend to advice that is purely commercial or of a public relations character …”[59]
[59] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted) per Young J
(5)“… [T]he lawyer’s advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such …”.[60]
[60] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [101]; 410; 766;69 per Young J
(6)“… The privilege does not extend to protect communications which are in themselves part of a criminal or fraudulent proceeding or course of conduct or which constitute the whole or part of an actual dealing or transaction (see O’Reilly’s Case [1983] HCA 32; (1983) 152 CLR 1 ). Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production. …”[61]
[61] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749; 83 ATC 4606; 14 ATR 713 at 112; 430-431; 774; 4,640; 754 per Deane J
(7)“… [L]egal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred …”.[62]
[62] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [131]; 417; 773; 76 per Young J
(a)“… The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. … [T]he question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication.”[63]
[63] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [132]; 417; 773; 76-77 per Young J
(8)The agency has the onus of establishing that an exemption under s 42 applies.[64]
[64] FOI Act, s 61(1)
(a)That means that the agency has an onus of establishing that a document is exempt from disclosure under the FOI Act on the basis that it is privileged from production on the ground of legal professional privilege.
(i)That necessarily carries with it a burden to establish the negative proposition i.e. that privilege has not been waived.[65]
[65] This is contrary to the position at common law where the onus for establishing that the privilege has been waived lies on the person making the assertion and not on the person claiming privilege: New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311 at at [54]; 556; 324; Kenny, Stone and Middleton JJ
(ii)Given the context of merits review in which the decision claiming exemption is reviewed, the agency can do no more than produce all relevant documentary and other information that is relevant to deciding the issue.[66]
[66] This is consistent with a decision-maker’s duty in a proceeding for review in the Tribunal to : “… use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”AAT Act, s 33(1AA)
(9)In general terms, the decision-maker will seek to establish legal professional privilege:
“… by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by reference to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[67]
[67] Grant v Downs (1976) 135 CLR 674; 11 ALR 577; 51 ALJR 198 per Stephen, Mason and Murphy JJ at 689; 589; 204 per Stephen, Mason and Murphy JJ
(10)“ Where a contested claim for legal professional privilege depends upon the purposes for which a document or particular parts of a document were prepared, it is generally appropriate that the evidence supporting that claim be given by the person or persons from whom the documents or the request for them originated so that any assertions as to purpose may be tested by cross-examination: cf Telstra Corp Ltd v Australis Media Holdings (unreported, Supreme Ct of New South Wales, Equity Division, McLelland CJ, 18 March 1997) at [1].”[68]
[68] Seven Network Ltd v News Ltd [2005] FCA 142 at [3]
(11)The person entitled to claim the privilege may waive it, either intentionally or by implication:[69]
[69] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
(a)“… [W]here there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[70]
[70] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
(b)“… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[71]
[71] Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
(c)“… [I]t is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”[72]
[72] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [163]; 77; 693 (citations omitted)
(d)The mere fact of disclosure to a third person, though, does not of itself amount to waiver[73] but:
[73] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
“ Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend on the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[[74]], questions of waiver are matters of fact and degree. …”.[75]
[74] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447
[75] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302
(e)Mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will.[76]
[76] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ
(f)“ It would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 (‘Goldman’); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9th Cir 1978) (‘Trans America’) at 651.”[77]
[77] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [138]; 69; 686
(g)“… If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct ‘inconsistent with the maintenance of the confidentiality which the privilege is intended to protect’ (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]) and an implied waiver of privilege has occurred. … [T]he filing and service operates as a complete, not simply limited, waiver of legal privilege.
17 To put the proposition in different terms, if ‘it is in the other side’s power to destroy the privilege entirely,’ … it can no longer be said that the original holder can reasonably expect any continued confidentiality. In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] … In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated.
18 This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96 (stating that the waiver ‘can be limited so that it applies only in relation to particular persons, materials or purposes’); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66; (1988) 201 CLR 1 at [29] for the proposition that disclosure ‘for a limited and specific purpose’ will not lead to loss of the privilege).”[78]
[78] Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137 at [16]-[18]; 142-143
(12)In considering the question of disclosure of part of a document, care must be taken to ensure that disclosure of part of the document does not amount to waiver of the privilege in relation to that part which is not disclosed and for which privilege is claimed:
“ It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence … Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege be waived as to the whole memorandum …
The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. …
… [T]he question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.”[79]
FTC established the FTC Disputes Committee by a resolution of its Board. On the basis of Mr Graeme Arnott’s written evidence, I find that:
“The purpose of the Disputes Committee is to act as the Board’s delegate in various matters such as resolving and settling certain disputes or claims and related issues, and reviewing the Trustee delegates’ decision in respect of disputed death benefit distributions made or proposed to be made in accordance with FSS Fund Rule 8.6.”[166]
[166] Exhibit PJ1, Annexure at [19]
On the same basis, I find that the Disputes Committee meets as required but generally meets once each month when FTC’s Board meets. In addition to its members, its meetings are attended by FTC’s Chief Executive Officer, Chief Operating Officer, Company Secretary, Technical Specialist and, at times, its Manager – Insurance and Claims. The last two attend as subject matter experts and make comment if and when required by the Disputes Committee. Members of the FSS and beneficiaries, or potential beneficiaries, do not attend the meetings.
Minutes of the Disputes Committee’s meeting are kept by the Company Secretary. They reflect a summary of the discussion but not its detail. The Company Secretary also prepares the Agenda provided to the Disputes Committee’s members. Also provided to them are submissions prepared by the Technical Specialist on each complaint. The complete files relating to each complaint are also tabled at each meeting. Neither the submissions nor any proposed resolutions are made available to members, beneficiaries or members of the public generally either before or after the meetings.
The Superannuation Complaints Tribunal
The Superannuation Complaints Tribunal (SCT) has been established under s 6 of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act). Its functions include those to enquire into a complaint and to resolve it by conciliation or, if that is not possible, to review the decision or conduct to which the complaint relates.[167] Its objectives are to “… pursue the objectives of providing mechanisms for: (a) the conciliation of complaints; and (b) if a complaint cannot be resolved by conciliation – the review of the decision or conduct to which the complaint relates; that are fair, economical, informal and quick.”
[167] SRC Act, s 12(1)
A complaint may be made to the SCT under ss 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H or 15J of the SRC Act.[168] They may be discretionary or non-discretionary decisions.[169] Complaints may be made under s 14 if the trustee of a fund has made a decision, whether before or after the commencement of the legislation, in relation to, among others, a particular member or a particular former member of a regulated superannuation fund.[170] The complaints that may be made and circumstances in which they may be made are regulated by ss 14 and 15. It is enough to note for the purposes of this case that a person may generally make a complaint to the Tribunal on the basis that the decision is, or was, unfair or unreasonable.[171] Section 15 sets out those who may make a complaint. They are determined by reference to the subject of the complaint. If the complaint concerns the payment of a death benefit, the person must have an interest in the death benefit, be a person claiming to be, or to be entitled to benefits through, that person or a person acting for such a person.[172]
[168] SRC Act, s 3(1)
[169] SRC Act, s 14AA
[170] SRC Act, s 14(1)(a)
[171] SRC Act, s 14(2)
[172] SRC Act, s 15(1)(a)
On receiving a complaint under s 14, the SCT must notify the complainant and the trustee of the superannuation fund.[173] The parties to a complaint are the complainant, the trustee, the insurer (if there is a contract of insurance between the trustee and an insurer) and any other person who has applied to the Tribunal to be made a party to the complaint and the SCT decides that the person should be a party to the complaint.[174] Section 24A provides for other parties to be joined when a complaint under s 14 concerns the payment of a death benefit. Within 28 days of receiving notice of the complaint, the trustee must give written notice to persons whom it believes, after reasonable enquiry, may have an interest in the outcome of the complaint.[175] The notice given under s 24A(3) must give details of the complaint and advise that the person might wish to apply to be joined as a party to the complaint.
[173] SRC Act, s 17(1) I note that s 22A permits the SCT to refer a complaint to another body having power to deal with it, or part of it, and being prescribed for the purposes of s 22A(1) to do so. If it does so, it must comply with s 63 and inform the parties accordingly. The effect of referral is that the complaint to the SCT is treated as withdrawn to the extent it has been referred: SRC Act, s 22A(2). I am not aware of any body’s having been prescribed under s 22A(1).
[174] SRC Act, s 18(1)
[175] SRC Act, s 24A(1)
When it receives a notice of a complaint given under s 17, the trustee has 28 days within which to give the Tribunal a copy of all documents, or parts of documents, in its possession or under its control and that it considers are relevant to the complaint.[176] A similar obligation falls upon the person joined as a party under s 18 i.e. an insurer or decision-maker.[177] The SCT may allow a trustee or other decision-maker to give a summary of all documents or relevant parts of documents that it is required to give under s 24(1) in response to a notice under s 17.[178]
[176] SRC Act, s 24(1)
[177] SRC Act, ss 18(2) in relation to a complaint made under s 14
[178] SRC Act, s 24(4)
SCT’s notice to FTC was dated 12 August 2008. It enclosed a copy of the complaint, referred to FTC’s obligations under s 24 and asked it to:
“Please note that, in the interests of procedural fairness and for the purposes of dealing with the complaint, all information/documentation provided to the Tribunal may be given to all parties to the complaint [sic] or their representatives.”[179]
[179] Exhibit 4 at 1
I note that s 25(1) gives the SCT power to require a person, who has produced copies or summaries of documents under ss 24 or 24A, to produce the original documents from which the copies or summaries were made. Section 25(2) gives it power to require the person whose decision or conduct has been complained about to produce further information or documents. It has the same power in relation to other persons under s 25(3) if it believes they have information or documents relevant to the complaint. Section 25(4) sets out what the SCT may do with the documents and how long it may keep them. It may keep them for as long as it is necessary to do so for the purposes of dealing with the complaint.[180] While it:
“… is keeping the documents the Tribunal must permit a person who would be entitled to inspect any one or more of them if they were not in the possession of the Tribunal to inspect at all reasonable times such of the documents as that person would be so entitled to inspect.”[181]
[180] SRC Act, s 25(4)(b)
[181] SRC Act, s 25(4)(c)
Between them, ss 25(5) and (6) provide that a person must neither refuse nor fail to comply with a requirement made by the SCT under ss 25(1), (2) and (3). A penalty of 30 penalty units is imposed for breach of either provision. Section 25(8) provides:
“Subsections (5) and (6) do not apply to the extent that the person has a reasonable excuse.”
Section 60 of the SRC Act is relevant in considering the application of s 25. It applies if a notice given by the SCT under s 25 requires a “lawyer” to give information or produce a document and “giving the information would involve disclosing, or the document contains, as the case may be, a privileged communication made by, or on behalf of or to the lawyer in his or her capacity as a lawyer.”[182] The lawyer is entitled to refuse to comply with the requirement to produce in accordance with the notice given under s 25 unless the person to whom, or by or on behalf of whom, the communication was made consents to the lawyer’s complying with the requirement. In the case of a body corporate under administration or being wound up, the exception applies if the administrator or liquidator gives consent.[183] If the lawyer does refuse to comply with the requirement, he or she must give the SCT written notice of the name and address of the person to whom the communication was made, and, if there is a document containing the communication, sufficient details to identify that document.[184]
[182] SRC Act, s 60(1)
[183] SRC Act, s 60(2)
[184] SRC Act, s 60(3)
If the parties to a complaint reach agreement at a conciliation conference on terms of settlement that would be acceptable to them, the complaint will be treated as withdrawn if a copy of the terms of their settlement is signed by each of them and lodged with the SCT.[185]
[185] SRC Act, s 31
If conciliation is unsuccessful, the SCT must set a time and date for a review meeting.[186] A review meeting is held in private. The Tribunal may give directions as to those who may be present at a review meeting and may give directions prohibiting or restricting the disclosure of documents or information relating to a review meeting. In giving those directions, the SCT “… must have regard to the wishes of the parties in relation to the complaint and the need to protect their privacy.”[187]
[186] SRC Act, s 32(1)
[187] SRC Act, s 38(4)
Under s 32(2), the SCT is required to invite the parties to make written submissions. The date specified for the meeting must be such as to allow a reasonable period for the parties to make written submissions. Section 33 permits written submissions to be made but oral submissions may be made at a review meeting only if the SCT makes an order under s 34(2) allowing them. Whether oral submissions may be made to the SCT at the review meeting is a matter within its discretion.[188] For the purpose of reviewing a decision, the SCT must have regard to the matters set out in s 36 of the SRC Act. Among them is the requirement that it have regard to the interests of all of the members of the fund if the complaint relates to a fund.[189] Section 30 restricts reference being made to certain matters raised at the conciliation conference when it provides:
“At a review meeting in relation to the complaint, unless the parties otherwise agree, evidence must not be given and statements must not be made about any word spoken or act done at a conciliation conference if the word or act related to a question to be determined by the Tribunal.”
Otherwise, the SCT may inform itself on any matter relevant to the review as it thinks appropriate.[190]
[188] SRC Act, ss 34 and 35
[189] SRC Act, s 37(b)
[190] SRC Act, s 37(c)
In reviewing a decision, the SCT has all the powers and discretions of the trustee and, if an insurer or another decision-maker has been joined as a party, of that insurer or decision-maker that are relevant to the decision that is the subject of the complaint.[191] The SCT must make a determination affirming the decision, remitting the matter to the trustee or other decision-maker for reconsideration in accordance with its directions, varying the decision or setting it aside and substituting another.[192] It may only exercise that power, however:
“… for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee’s decision that is the subject of the complaint no longer exists.”[193]
[191] SRC Act, s 37(1)
[192] SRC Act, s 37(3)
[193] SRC Act, s 37(4)
If the SCT is satisfied that the decision in relation to a matter other than a death benefit is, in its operation in relation to the complainant, fair and reasonable, it must affirm the decision.[194] If the complaint relates to the payment of a death benefit, the SCT must affirm the decision if it considers it fair and reasonable in the circumstances in relation to the complainant and any person (other than a trustee, insurer or decision-maker) who is a party to the complaint and either has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit.[195] As Ms Denehy submitted:
“… Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee … s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s 37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.”[196]
[194] SRC Act, s 37(6)(a)
[195] SRC Act, s 37(6)(b)
[196] Lykogiannnis v Retail Employees Superannuation Pty Limited [2000] FCA 327; (2000) 97 FCR 361 at [48]; 372 per Mansfield J and see also National Mutual Life Association of Australia Ltd v Jetovic (1997) 217 ALR 316 at 321
Ms Denehy referred me also to the judgement of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker[197] when he described the SCT’s task:
“The Tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.”[198]
[197] [2001] FCA 1330; (2001) 48 ATR 359
[198] [2001] FCA 1330; (2001) 48 ATR 359 at [31]; 367
The Full Court of the Federal Court approved this passage in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme.[199] It also approved the approach taken:
“… In Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484 Mansfield J acknowledged (at [17]) that the role of the Tribunal under s 37 of the Act was not to decide for itself the correct or preferable decision because it had to affirm a decision if it was satisfied that the operation of the decision the subject of its review was fair and reasonable in the circumstances. His Honour said (at [19]):
… the Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances. But it is necessary to make such findings of fact only for that purpose. It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made. It does not, in that sense, simply stand in the shoes of the primary decision-maker.”[200]
[199] [2003] FCAFC 214; (2002) 130 FCR 122 at [43]; 133; Whitlam, Kiefel and Dowsett JJ
[200] [2003] FCAFC 214; (2002) 130 FCR 122 at [42]; 133
If the SCT determines a review, it must give a copy of its determination and reasons for it to each party to the complaint. If the review was conducted as a result of a complaint under s 14 and its determination was made in relation to a particular member or former member, it might direct the trustee to inform all or any of the other members, or former members, of the superannuation fund.[201]
[201] SRC Act, ss 44(1) and (2)
Section 63 applies to a person who is or has been a Tribunal member or a member of the staff of ASIC who has been made available to the SCT under s 62(2). Subject only to exceptions relating to references of breaches of legislative provisions and the like to appropriate authorities, s 63(2) provides that:
“… the person must not directly or indirectly:
(a)make a record of, or disclose to any person or court, any information acquired by the first-mentioned person in connection with a complaint made to the Tribunal under this Act or the review under this Act of a decision or conduct in respect of which such a complaint was made; or
(b)produce to any person or court a document so acquired.
Penalty:10 penalty units.”
The word “court” includes any tribunal, authority or person having power to require the production of documents or the answering of questions. The meanings of the word “produce” include that of “permit access” and the word “production” has corresponding meanings.[202]
[202] SRC Act, s 63(5)
The prohibition in 63(2) is subject to several exceptions. It does not, for example, prevent the Tribunal from disclosing information in a way that does not enable the identification of the parties to a complaint.[203] Disclosure of information or production of a document to a particular party to a complaint is not prohibited if the person who provided the information or document to the Tribunal consents in writing to its doing so.[204] Section 63(2) does not apply to the extent to which a person makes a record of information, discloses the information, or produces the document for the purposes of the SRC Act.[205]
[203] SRC Act, s 63(4)
[204] SRC Act, s 63(3)(b)
[205] SRC Act, s 63(2B)
The prohibition does not prevent the SCT from disclosing information or producing a document to ASIC or, if requested to do so by APRA, to APRA.[206] The prohibition in s 63(2) is also subject to ss 64, 64A and 65, which require the SCT or its Chairperson or members to refer matters to ASIC or APRA on becoming aware that certain contraventions of the law or governing rules of a superannuation fund might have occurred.
[206] SRC Act, ss 63(3)(a) and (aa)
Sections 63(3A) and (3B) apply to complaints referred to a complaint-handling body prescribed for the purposes of s 22A(1). The effect of those two provisions is that the SCT and its members and staff are not prohibited from disclosing a complaint or information or material relating to that complaint to the complaint-handling body but may only reveal personal information relating to an individual if that individual has consented in writing to their doing so.
ATTACHMENT C
189.
THE DOCUMENTS IN DISPUTE[207]
[207] Before the hearing, Ms Denehy indicated that she did no longer sought access to Documents 4, 5, 6, 7, 9, 11, 19, 22 and 23 or, apart from Folio 623, Document 8. The SCT’s position is shown in the sixth column with the FTC’s position in italicised bold script immediately underneath. Where the FTC’s position is not shown, it accords with that of the SCT.
DOCUMENTS SUBJECT OF SCT’S DECISION ON INTERNAL REVIEW
| Document No. (FTC No.) | Folios | Description of document | Decision on internal review by SCT | Disclosure made to Ms Denehy under FOI Act | SCT’s position in Tribunal (FTC’s position in Tribunal) |
| 1 (1) | 281-283 | Trustees’ Minutes of Dispute Committee Meeting 29 May 2009 | Released in part Exemption claimed: ss 41, 43(1)(c)(i) | Released in part except for the following: Folio 283: ∙ names of parties present, apologies and in attendance; and ∙ names of persons under heading “Minutes of Meeting”. Folio 281: ∙ paragraph 4 after the words “… matters before the committee”; and ∙ the text item numbers 3. and 3.1 | Release in full (Exempt in part: s 43(1)(c)(i) All exempt other than: Folio 281: text under “Closure” Irrelevant material: s 22 Folio 283: text under “Committee Administration” |
| 2 (2) | 285-302 | Trustee’s Proposed Resolution for Dispute Committee Meeting 27 August 2008 | Released in part Exemption claimed: s 43(1)(c)(i) | Released in part except for the following: Folio 302: ∙ names of persons above the heading “Executive Opinion”; and ∙ sub-paragraph 1. Folio 298: ∙ under the heading “Spouse”, the italicised paragraphs after the words “the deceased’s spouse states”; and ∙ under the heading “Request for Information”, the second paragraph. Folio 296: ∙ the italicised paragraphs commencing with the words “On 13 March 2008” to “prior to his death.” Folio 295: ∙ the italicised paragraphs above the heading “Claim staking”. Folio 293: ∙ under the heading “Disputes Committee”, the final words of paragraph 1 (after the words “reach a decision”) and paragraph 2; and ∙ under the heading “Additional Information”, the first sentence. Folio 291: ∙ the italicised paragraphs after the words “to the deceased’s spouse:” Folios 290 and 289: ∙ exempt in full. Folio 288: ∙ paragraphs 3 and 4 (commencing with “While reviewing” to “are summarised below”. Folio 286: ∙ the heading and two paragraphs after the words “to support her arguments”. | Release in part subject to the following redactions: Section 41 Folios 289-291; Folio 295: first paragraph Section 42 First sentence in last paragraph on folio 293 (Exempt in part: s 42 Folio 293: last three paragraphs Exempt in part: s 43(1)(c)(i) All exempt other than: Folios 286-285: text under “Relevant Provisions of the Trust”) |
| 3 (3) | 304-324 04/07/08 | Advice from TurksLegal to Trustee | Exempt in full | Nil released | Exempt in full Section 42 (Exempt in full: s 42) |
| 8 | 613-623 14/09/07 | Letter and attachment from Carol Denehy to Trustee | Access refused Exemption claimed: s 41 | Nil released | Ms Denehy requests access to letter from Carol Denehy only: Folio 623. Exempt in full Section 41 |
| 10 (18) | 710-733 15/09/08 | Letter and attachment from Trustee to SCT about Carol Denehy | Access refused Exemption claimed: s 43(1)(c)(i) | Nil released | Release in part subject to the following redactions: Section 41 Folio 732: Item 2 after the words “property, however” and before the sentence commencing with “A copy of this letter”; Item 5 in full; Folio 727: Two paragraphs under the heading “Provisions of the Will”. (Exempt in part: s 42: Folio 729: last paragraph Folio 712: last paragraph Exempt in part: s 43(1)(c)(i) All exempt other than: Folios 713-712: text under “Relevant provisions of the Trust Deed”) |
| 12 | 767-778 19/09/08 | Letter and attachment from Trustee to SCT | Access refused Exemption claimed: s 41 | Exempt in full Section 41 | |
| 13 | 1107 19/11/08 | Email from Carol Denehy to Trustee | Access refused Exemption claimed: s 41 | Nil released | Exempt in full Section 41 |
| 14 | 1108 19/11/08 | Email from Trustee to Carol Denehy | Access refused Exemption claimed: s 41 | Nil released | Exempt in full Section 41 |
| 15 | 1109 19/11/08 | Email from Trustee to Carol Denehy | Access refused Exemption claimed: s 41 | Nil released | Exempt in full Section 41 |
| 16 (27) | 1122-1125 Undated | Minutes of Trustee Dispute Committee Meeting 29 October 2008 | Released in part Exemption claimed: ss 41, 43(1)(c)(i) | Released in part except for the following: Folio 1125: ∙ names under the headings “Present” and “In attendance”. Folio 1124: ∙ first paragraph, reference to legal advice after the words “reviewed in this dispute”; and ∙ third paragraph from the bottom of the folio, after the words “of their financial dependency”. Folio 1123: ∙ the sixth dot point after the words “from the Complainant” and ∙ the paragraph above the heading “Resolved”. | Release in full (Exempt in part: s 42: Folio 1124: first paragraph Exempt in part: s 43(1)(c)(i) All exempt other than: |
| 17 (28) | 1126-1133 | Proposed resolution for Trustee Committee Meeting 29 October 2008 | Released in part Exemption claimed: ss 41, 43(1)(c)(i) | Released in part except for the following: Folio 1133: ∙ names of persons above the heading “Executive Opinion”; and ∙ sub-paragraph 1. | Release in full (Exempt in part: s 42: Folio 1132: second and third paragraphs Folio 1126: first paragraph Exempt in part: s 43(1)(c)(i) All exempt other than: Folio 1126: paragraphs under “Relevant Provisions of the Trust Deed”) |
| 18 (31) | 1271-1301 | Letter and attachments from Trustee to SCT | Access refused Exemption claimed: s 43(1)(c)(i) | Nil released | Exempt in full Sections 41 and 43(1)(c)(i) Section 42: Folio 1274, 3rd paragraph (Exempt in part: s 42 Folio 1294: last paragraph Folio 1274: third paragraph Exempt in part: s 43(1)(c)(i) All exempt other than: Folio 1126: paragraphs under “Relevant Provisions of the Trust Deed”) |
190.
ADDITIONAL DOCUMENTS IDENTIFIED DURING TRIBUNAL HEARING
| Document No. | Folios | Description of document | Disclosure made to Ms Denehy under FOI | Reason | SCT’s position in Tribunal |
| 20 | 269-274 | Trustee Submissions for Board meeting of 31 May 2006 | Nil released | Exemption claimed: s 43(1)(c)(i) | Exempt in full Section 43(1)(c)(i) |
| 21 (10) | 276-279 | Trustee Minutes of Disputes Committee Meeting 27 August 2008 | Nil released | Exemption claimed: ss 42, 43(1)(c)(i) and 22 | Release in part except for: Section 42 ∙ references to legal advice obtained by FTC (the Trustee) from TurksLegal; ∙ paragraphs 2 and 3; and ∙ four dot points under paragraph 3 Section 43(1)(c)(i) Folio 277-276 ∙ Discussion of the general business of FTC, unrelated to Ms Denehy’s complaint; ∙ information under the headings “List of Disputes and Complaints on Hand” and “Committee Meetings”. (Exempt in part: s 42: Folio 278: references to legal advice in first three paragraphs Exempt in part: s 43(1)(c)(i) All exempt other than: Folio 276: text under “Closure” Irrelevant material: s 22 Folio 279: text under “Committee Administration” Folios 277 and 276: text under “Disputes Register” and “Committee Meetings”) |
| 24 (4) | 1342 | Email from Trustee to SCT regarding provision of legal advice to SCT | Nil released | Release in full (Exempt in part: s 42 References to legal advice) | |
| 25 (44) | 1345-1346 | Email from Trustee to SCT regarding the provision of legal advice to SCT | Nil released | Release in full (Exempt in part: s 42 Folio 1346: references to legal advice) | |
| 26 | 1358 | SCT File Note – Request for advice | Released in part (as part of the Tribunal’s decision dated 12 May 2011) | Exemption claimed: s 42 paragraph commencing with the word “Note” and ending with “F.324.306” | Release in full (Exempt in part: s 42 Folio 1358: references to legal advice) |
I certify that the preceding one hundred and ninety paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Date of Hearing 2 August 2011
Date of Decision 10 September 2012
ApplicantEmma Denehy
Counsel for the Respondent Elena Arduca
Solicitor for the Respondent Kasper Maat
Australian Government Solicitor
Counsel for the Joined Party Fiona McKenzie
Solicitor for the Joined Party Kristin Watkins
Holding Redlich
3
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