Re Lobo and Department of Immigration and Citizenship
[2011] AATA 705
•11 October 2011
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/0947
GENERAL ADMINISTRATIVE DIVISION )Re:PHILLIP LOBO
Applicant
And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM TO DECISION [2011] AATA 705
The Tribunal amends its decision and reasons for decision of 11 October 2011 as follows:
1.in paragraph 392(2) by deleting from the second and third lines “that the distinctions between an” and by substituting in place of the deleted words “these are irrelevant under s 45.”.
S A Forgie
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/0947
GENERAL ADMINISTRATIVE DIVISION )Re:PHILLIP LOBO
Applicant
And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM TO DECISION [2011] AATA 705
The Tribunal amends its decision and reasons for decision of 11 October 2011 as follows:
2.in paragraph 2(1) of its decision:
(a)by changing the reference to document 231 to document 213 of Category 19; and
(b)by deleting the reference to document 285 of Category 23 which is found to be exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act);
3.in paragraph 2(2) of its decision:
(a)by deleting the reference to document 261 of Category 18 which was found to be exempt under s 41(1) of the FOI Act;
4.by joining paragraph eight with paragraph nine and numbering this joined paragraph as nine;
5.there are two paragraphs numbered seven, the second of these (located under the heading BACKGROUND) is to be changed to paragraph eight; and
6.by deleting the references in the decision and reasons for decision to the following documents as they were not in dispute:
documents of Category 1 numbered: 798, 853 and 977;
document of Category 6 numbered: 346;
documents of Category 7 numbered: 139, 333, 344, 597, 636, 739, 741, 763, 864, 865 and 998;
documents of Category 9 numbered: 475, 564, 571, 577, 608, 620, 640, 643, 644, 723, 859, 875, 876 and 1029;
documents of Category 12 numbered: 112, 962 and 963;
documents of Category 13 numbered: 98 and 99;
document of Category 15 numbered: 1018;
document of Category 16 numbered: 956;
documents of Category 17 numbered: 286, 287 and 997; and
documents of Category 23 numbered: 140 and 321.
S A Forgie
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION –
applicant former CEO and chief administrator of Sydney International College of Business - provider of education and training to overseas students under general skilled migration program – allegations of providing false qualifications - investigation by New South Wales Fraud Control Section of the Department of Immigration and Citizenship – exemptions claimed under ss 33(1)(a)(iii), 33(1)(b), 37(1)(b), 37(2)(b), 40(1)(d), 41(1) and 45(1).
WORDS AND PHRASES – “would, or could reasonably be expected to” – “the enforcement or administration of the law” – “would, or would be reasonably likely to” – “prejudice the effectiveness” – “substantial adverse effect” and “proper and efficient conduct of the operations of an agency” – “personal information” and “unreasonable disclosure” – “found an action” and “breach of confidence.”
PRACTICE AND PROCEDURE – public interest - provisions of FOI Act state when public interest to be considered and how it is to be considered - whether disclosure is in the public interest or whether disclosure is contrary to the public interest - other provisions not requiring a public interest test can in themselves be in the public interest – such as the public interest in protecting personal information from unreasonable disclosure.
PRACTICE AND PROCEDURE - confidential sources of information not satisfied by witness or potential witness providing statements nor by evidence that communications were of a kind “customarily made in confidence.”
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DECISION AND REASONS FOR DECISION [2011] AATA 705
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/0947
GENERAL ADMINISTRATIVE DIVISION )
Re:PHILLIP LOBO
Applicant
And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 11 October 2011
Decision: The Tribunal decides:
1.in relation to those documents or parts of documents which have been marked as “Exempt” under one or more of the exemptions listed in Attachment J to these reasons being:
(1)Category A documents 1-798, 853 and 977; 5-152, 153, 238, 728, 737, 745, 762 and 991; 6-346; 7-139, 597, 509, 596 and 1019; 9-87, 553, 564, 571, 577, 579, 620, 635, 640, 643, 644, 723, 731, 734 and 1029; 12-112, 962 and 963; 13-98 and 99; 15-1018; 16-894 and 956; 23-140, 321 and 285;
(2)Category C documents 6-399 and 1001; 7-523 and 1016; 9-53, 469, 472, 482, 483, 485, 527, 547, 549, 570, 650, 692, 693, 1017 and 1020; 18-60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 263, 1023, 1074, 1083, 1084 and 1089; and
(3)Category D documents 19-401, 1054, 1055, 1056, 1057, 1058, 1059 and1060;
to affirm the decision.
2.in relation to those documents or parts of documents considered under only one exemption and marked as “Not exempt” in relation to that exemption listed in Attachment J to these reasons being:
(1)Category B Documents 9-267, 271, 290, 322 and 1009; 9-486, 662 and 1099; 16-397 and 1062; 16-870; 19-231, 214; 272 and 376; 23-140, 321 and 285; and
(2)Category C documents 9-550 and 18-261;
to
(3)set aside the decision under review in relation to those documents or parts of the documents; and
(4)substitute a decision that those documents or those parts of the documents are not exempt from disclosure under the Freedom of Information Act 1982;
3.in relation to those documents or parts of documents marked as “Adjourned …” under one or more of the exemptions listed in Attachment J to these reasons being:
(1)Category A documents 5-152, 153, 238, 728, 737, 745, 762 and 991; 7-139, 333, 344, 597, 636, 763, 864, 739, 741, 865, and 998; 9-475, 608, 209, 695, 725, 760, 898, 900, 556, 577, 620, 640, 643, 723, 731 and 1029; 17-286, 287 and 997; 23-140 and 321; and
(2)Category C documents 9-1017 and 1020; 18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76;
to
(3)adjourn further consideration;
4.in relation to documents 9-859, 875 and 876 in Category A, affirm the decision to delete the material under s 22 of the Freedom of Information Act 1982; and
5.this decision is not to come into operation until the expiration of the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975 as the time within which a person may appeal to the Federal Court of Australia against this decision.
S A Forgie
Deputy President
REASONS FOR DECISION
Mr Lobo was formerly the Chief Executive Officer and Principal Administrator of the Sydney International College of Business (SICB) located in Melbourne and Sydney. The SICB was registered under the Education Services for Overseas Students Act 2000 (ESOS Act) as the provider of education and training to overseas students. In that role, it provided vocational qualifications under the General Skilled Migration Program (GSMP) and concentrated particularly on cooking and hospitality. Together with other providers registered under the ESOS Act, Mr Lobo and SICB have been investigated by the New South Wales Fraud Control Section (FCS) of the Department of Immigration and Citizenship (Department) as part of an operation known as Operation Dachshund and arising from allegations of fraud under the GSMP.
On 14 November 2008, Mr Lobo made two requests under the Freedom of Information Act 1982 (FOI Act) for access to documents held by the Department and relating to him, SICB, its students and an investigation regarding certain activities of SICB and its students. The investigation came to be known as Operation Dachshund. In an earlier decision, I limited the documents under consideration to those in the possession of the Department on or before the date it received his request i.e. 14 November 2008.[1] Those documents numbered 1,115 but the total number of pages was vastly greater. After various discussions between the parties and further reconsideration within the Department, 153 documents remain in dispute. Exemption from disclosure under the FOI Act is claimed for 151 of them, either in whole or in part, under one or more of the exemptions set out in ss 33(1)(a)(iii), 33(1)(b), 37(1)(b), 37(2)(b), 40(1)(d), 41(1) and 45(1). The remaining two are said to be irrelevant to fall outside the scope of Mr Lobo’s request and access has been refused under s 22.
[1] See Re Lobo and Department of Immigration and Citizenship [2010] AATA 583
The amount of work involved in the process of simply organising and recording the material, let alone making decisions about it, compiling it into manageable categories and recompiling it as the matter has progressed through settlements and negotiations has clearly been a vast task painstakingly undertaken. It has assisted Mr Lobo and his advisers to understand the nature of the subject matter for which exemption claims have been made and for the parties to have a basis for negotiations. As a consequence, Schedules numbering 143 pages in 9 point font have been prepared to show the documents to be released in full or in part, those no longer in contention between the parties and those for which exemption continues to be claimed in whole or in part that are no longer in contention. I am left with 20 pages in the same font. The task has still been considerable but much more manageable as a result of the parties’ work.
I have read each document and considered each against the exemption or exemptions claimed in respect of it.[2] In some instances, the claim for exemption has been made in respect of the whole document and in others it has been made in respect of part of it. I have not distinguished between them in giving these reasons although I have noted the distinction in Attachment A. Despite that, I have considered the claim only in relation to that part of the document for which exemption is actually claimed and my decision should be read in that way. In many instances, the Department claimed exemption on more than one ground. I have considered each claim and the outcome of my consideration is set out in summary form in Attachment J. The reasons are given in the body of these reasons. Although I have not found each exemption made out in each instance on which it has been claimed, a decision refusing access to a document under the FOI Act need only be supported by one ground. In most cases, the documents have been supported by at least one ground although not necessarily all of the grounds claimed by the Department. I have adjourned further consideration of some documents to enable me to know whether charges have been laid against certain persons but have set out the decisions I would make if the evidence goes one way or the other. The parties may be able to resolve the matter themselves. Finally, I have stayed the operation or implementation of this decision for the length of the appeal period provided under s 44(2A) of the Administrative Appeals Tribunal Act 1975.[3]
[2] For the reasons I gave in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [147]-[148]; 71-72 and which I adopt, it is not appropriate for a merits review tribunal to take the approach of an appellate court and simply examine “… a representative sample of the documents in question, chosen essentially at random, in order to gauge whether … [the Department’s] interpretation of the various provisions upon which it relied in … [making its] claims for exemption revealed some legal error.” (Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73 at [56]-[60]; 85-86). The Tribunal’s duty is to make a decision under s 43 of the Administrative Appeals Tribunal Act 1975 and to do so on the basis that it is, in the context of this case, the correct decision (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577 at 589 per Bowen CJ and Smithers J). It cannot make the “correct or preferable decision” in this case as s 58(2) provides that it does not have the power to decide that access be given to a document in so far as it contains exempt matter. The Tribunal must carry out its duty. That means that it must work out the law that applies and how it has been interpreted by the courts, read each and every document and apply the law. This is a painstaking and time consuming task for the Tribunal and for those who read it but not one that can be avoided.
[3] In doing so, I rely on the power conferred by s 43(5B) of the Administrative Appeals Tribunal Act 1975.
STRUCTURE OF THESE REASONS
Whenever an application for review under the FOI Act relates to a number of documents and several exemptions, the reasons for decision quickly become lengthy and unwieldy. I continue to experiment with structures that will make them more readable not only by the parties, to whom they are of immediate concern, but to others be they the Federal Court on appeal or other administrative decision-makers. On this occasion, I have decided to set out the requests, a broad description of the categories of documents coming within the ambit of those requests, the events preceding and relating to Operation Dachshund and my consideration of the exemptions in the body of these reasons. Set out in Attachments, but no less a part of my reasons, are descriptions of the more specific categories into which the documents have been grouped, a grouping of those specific categories by reference to the broader categories and my understanding of the law relating to the exemptions claimed. The first of those Attachments, Attachment A, contains a more detailed index to the reasons. A broader indication is:
| Paragraph | Attachment | Subject |
| 5 | The requests | |
| 58 | The decision | |
| 59 | Attachment A | Documents and claimed exemptions |
| (i) 60-87 (ii) 88-89 | Attachment B | Exemption claimed under s 33(1)(a)(ii) (i) law (ii) application of law |
| (i) 90-94 (ii) 95 | Attachment C | Exemption claimed under s 33(1)(b) (i) law (ii) application of law |
| (i) 96-152 (ii) 153-205 | Attachment D | Exemption claimed under s 37(1)(b) (i) law (ii) application of law |
| (i) 206-214 (ii) 215-220 | Attachment E | Exemption claimed under s 37(1)(2)(b) (i) law (ii) application of law |
| (i) 221-249 (ii) 250-284 | Attachment F | Exemption claimed under s 40(1)(d) (i) law (ii) application of law |
| (i) 285-331 (ii) 332-388 | Attachment G | Exemption claimed under s 41(1) (i) law (ii) application of law |
| (i) 389-412 (ii) 413-416 | Attachment H | Exemption claimed under s 45(1) (i) law (ii) application of law |
| (i) 417-420 (ii) 421-423 | Attachment I | Deletion of irrelevant material under s 22 (i) law (ii) application of law |
| Attachment J | Table summarising decision on each exemption in relation to each document or part of document in relation to which it is claimed. |
THE REQUESTS
Mr Lobo made two requests to the Department under the FOI Act. They were for:
“All documents and files created and held by the Department relating to me since May 2007.”[4]
[4] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 149
“All documents and files of whatsoever nature and kind in regard to Philip Lobo, SICB and the NSW Investigations and the students attending who have attended SICB, on the basis of which the Investigation is proceeding.”[5]
[5] T documents at 157
DOCUMENTS and EXEMPTIONS CLAIMED
The documents in issue in this matter, can be grouped under five main subject headings. Those categories, together with the exemptions claimed are:
| Category Exemptions claimed in whole or in part | Description |
| Category A s 37(1)(b) – confidential source s 40(1)(d) – proper and efficient conduct of operations s 41(1) – personal information | Documents containing information identifying witnesses, Departmental informants and other third parties |
| Category B s 37(2)(b) – lawful methods of investigation etc s 33(1)(a)(iii) – international relations s 33(1)(b) – confidential communications with foreign government | Documents disclosing methods for preventing, detecting, investigating or dealing with breaches of the law Correspondence with the US State Department |
| Category C s 37(1)(b) – confidential source s 40(1)(d) – proper and efficient conduct of operations s 41(1) – personal information s 45(1) – breach of confidence | Documents containing information provided solely for the purposes of the Department’s investigation and/or on the basis that it would remain confidential |
| Category D s 33(1)(a)(iii) – international relations s 33(1)(b) – confidential communications with foreign government | Correspondence with the US State Department |
They are set out in greater detail in Attachment A.
BACKGROUND
In this section of my reasons, I set out my findings of fact on matters relating to Operation Dachshund and associated matters. I have referred to the evidence on which I rely but only in general terms where the findings are uncontroversial. Ms Pettit’s history in the Department is an example. I have dealt with the evidence further in considering the claims for exemption.
Ms Pettit, Manager Investigations-Strategy and Coordination, FCIS
The events surrounding Operations Dachshund were the subject of both oral and affidavit evidence by Ms Elizabeth Joy Pettit.[6] Ms Pettit holds a Bachelor of Arts and a Bachelor of Law degree and has worked in the Commonwealth public service for some 23 years. She has worked in the Department since 1991. Her first seven years were spent assessing claims for protection visas made by applicants within Australia’s migration zone. She then became an investigator with the Fraud Control and Investigation Section in New South Wales (FCIS) in 1998. That Section is part of the Department’s Operational Integrity Branch. Ms Pettit held that position for the following seven years before becoming a Team Leader in the same section in 2005.
[6] Exhibit 2
In 2005, Ms Pettit became the Manager Investigations – Strategy and Coordination at FCIS. In her current role, she works with the Manager Operations in FCIS to oversee the investigations undertaken by the section. Her duties include strategic planning and reporting, working with those holding the same position in other States to ensure consistency of their investigation methods and priorities and liaising with other sections located in the Branch within which FCIS is also located i.e. the NSW Operational Integrity Branch.
Investigation and enforcement of alleged breaches of the Migration Act 1958
The Department is responsible for matters arising under the Migration Act 1958 (Migration Act), which is administered by the Minister for Immigration and Citizenship.[7] One of its responsibilities is to ensure the proper administration of the Migration Act in so far as it and associated regulations provide for visas permitting those who are not Australian citizens to enter the country and remain in it on either a temporary or permanent basis. That, in turn, carries with it the responsibility of investigating any allegations that the Migration Act has not been complied with in the procurement of a visa in a particular case or of visas more generally.
[7] Administrative Arrangements Order
The Department has categorised the allegations it receives by reference to whether they relate to contrived relationships, identity fraud, illegal work, people smuggling, overstaying a visa and other criminal activities. Categorisation was given by reference to the 2004-2005 year but I accept Ms Pettit’s evidence that they are representative of other years.
The Department regards as an “allegation” any information that it is given by the public, external agencies or any of its programme areas and that relates to possible fraudulent activity by an individual or organisation. The Department maintains a dedicated toll-free telephone number on which members of the public may tell it of their concerns regarding compliance with the Migration Act. That telephone number is known as the Immigration Dob-In Line. Information that members of the public are encouraged to give is found on the Department’s website.[8] It ranges from the name of the person suspected of working or living illegally in Australia and the basis of the suspicion to a sponsor’s mistreating a sponsored overseas worker. The information that the Department maintains about the Dob-In Line advises that:
“The department will treat any information provided by members of the public about people working or living illegally in Australia and 457 sponsors who are not meeting their obligations in the strictest confidence.”[9]
[8] Exhibit EJP-2 to Exhibit 2; Exhibit EJP-2 to Exhibit 2 at 2
While contrived relationships are the subject of most allegations accounting for almost 50%, allegations of identity fraud follow at a little over a quarter of the total. On the basis of the figures referred to by Ms Pettit, I find that over 60% of allegations relate to conduct of the visa applicant with the remaining allegations generally relating to the conduct of one or other of the sponsor, migration agent (whether registered or unregistered), education industry, illegal worker and employer.
The Department finds almost 40% of allegations to be unsubstantiated. It refers a handful to another agency such as the Australian Federal Police and another handful of matters to the Commonwealth Director of Public Prosecutions (CDPP) to consider whether criminal charges should be laid. The majority of cases, something under 60%, result in the Department’s taking administrative action such as the refusal of a visa application or the cancellation of a visa already issued.
The Fraud Control and Investigations Section
Having regard to Ms Pettit’s affidavit and to the Commonwealth Fraud Control Guidelines issued by the Minister for Home Affairs,[10] I find that most agencies are required to:
“… refer all instances of potential serious or complex fraud offences to the AFP[[11]] in accordance with the AGIS[[12]] and the AFP referral process published on the website …”.[13]
This follows as a consequence of the fact that “The AFP has the primary law enforcement responsibility for investigating serious or complex fraud against the Commonwealth...”.[14] Exceptions are made in relation to the manner of referral where particular legislation sets out the requirements for referrals of a particular nature or by a particular class of bodies or agencies. Further exceptions are made “…where agencies have the capacity and the appropriate skills and resources needed to investigate criminal matters and meet the requirements of the AFP and CDPP in gathering evidence and preparing briefs of evidence. …”[15] The Department is regarded as an agency with the appropriate skills and resources to undertake the investigative tasks and prepare the brief of evidence. Even so, it may still choose to refer a matter to the AFP where it deems it appropriate to do so.[16]
[10] Financial Management and Accountability Regulations 1997, r 16A(1). That regulation provides:
“(1) The Minister for Home Affairs may issue guidelines (to be called Fraud Control Guidelines) about the control of fraud, dealing with fraud risk assessments, the preparation and implementation of fraud control plans and reporting of fraud.”
[11] Australian Federal Police
[12] Australian Government Investigation Standards
[13] Commonwealth Fraud Control Guidelines at [10.11]
[14] Commonwealth Fraud Control Guidelines at [10.11]
[15] Commonwealth Fraud Control Guidelines at [10.11]
[16] Commonwealth Fraud Control Guidelines at [10.11]
In conducting an investigation, the FCIS is required to observe the requirements of the Privacy Act 1988 (Privacy Act) regarding the collection and disclosure of personal information. Information Privacy Principle 11.1(e) under s 14 of the Privacy Act allows a record-keeper who has possession or control of personal information to disclose that information to another when believing “the disclosure of information is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue”.
FCIS must also comply with the restrictions imposed by s 336E of the Migration Act regarding the disclosure of identifying information. Except in very limited circumstances relating to the need to prevent or lessen a serious and imminent threat to the life or health of a person,[17] a person commits an offence if his or her conduct causes disclosure of identifying information when that disclosure is not a permitted disclosure.[18] Section 336E(2) sets out a number of disclosures that are permitted. Among them is “… a disclosure that …is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory”,[19] disclosure of certain personal identifiers to selected individuals in certain circumstances for the purposes of identifying or locating a person in connection with the administration of the Migration Act[20] and disclosure to the general public in similar circumstances.[21]
[17] Migration Act, s 336E(1A)
[18] Migration Act, s 336E(1)
[19] Migration Act, s 336E(2)(ea)
[20] Migration Act, ss 336E(2)(j) and 336FA
[21] Migration Act, ss 336E(2)(k) and 336FC
Allegations of serious or organised fraud alleged to have occurred in New South Wales are referred to FCIS. It investigates whether breaches of the Migration Act have occurred and, where it concludes that offences have been committed, prepares briefs of evidence for referral to the CDPP. Under the Commonwealth Fraud Control Guidelines issued by the Minister for Home Affairs,[22] FCIS is regarded as a body with “… the capacity and the appropriate skills and resources needed to investigate criminal matters and meet the requirements of the AFP and CDPP in gathering evidence and preparing briefs of evidence”.[23] The consequence of that is that, unlike most agencies, it need not refer all instances of potential serious or complex fraud offences to the AFP in accordance with the AGIS and the AFP referral process. It may, instead, investigate allegations and, where it finds evidence of the commission of an offence, prepare a brief of evidence for referral to the CDPP.[24]
[22] Financial Management and Accountability Regulations 1997, r 16A(1). That regulation provides:
“(1) The Minister for Home Affairs may issue guidelines (to be called Fraud Control Guidelines) about the control of fraud, dealing with fraud risk assessments, the preparation and implementation of fraud control plans and reporting of fraud.”
[23] Commonwealth Fraud Control Guidelines at [10.11]
[24] Commonwealth Fraud Control Guidelines at [10.11]
On the basis of Ms Pettit’s written evidence, I find that FCIS makes a preliminary assessment of any allegation referred to it. It does so in order to determine whether an offence has occurred and whether, having regard to its resources and the Department’s priorities, there is a sufficient basis to warrant an investigation. The assessor decides whether to recommend that an investigation should proceed or that it should not and refers the recommendation to the manager of FCIS.
If the manager refers the matter to an investigator, that investigator prepares an Investigation Plan outlining the nature of the allegations, the nature of the offences and the persons suspected of being involved in the alleged offences, the evidence gathered to date and any additional evidence the investigator hopes to collect through investigation. Once the Investigation Plan has been approved, the investigation begins.
Methods of investigation that FCIS may choose to use in an investigation include obtaining and verifying documentary evidence and interviewing witnesses and persons suspected of having committed an offence. FCIS might also work with the AFP and with other State and Commonwealth agencies in gathering evidence.
Once an investigation has been concluded, the investigator submits a brief of evidence to the CDPP so that it may decide whether there is a reasonable prospect of securing a conviction should charges be laid.
General Skilled Migration Program
Under Part 2 of the Migration Act, the Minister may grant a non-citizen[25] permission either to travel to and enter Australia, to remain in Australia for a specified or indefinite period or to both travel and enter and remain. The permission is known as a “visa”.[26] A non-citizen who wants a visa must apply for a visa of a particular class.[27]
[25] A “non-citizen” means a person who is not an Australian citizen: Migration Act, s 5(1).
[26] Migration Act, ss 29(1), (2) and (3)
[27] Migration Act, s 45(1)
Putting aside whether they also permit a person to travel to and enter Australia, there are two kinds of visas. One permits its holder to remain in Australia indefinitely and is known as a permanent visa.[28] The other permits its holder to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status.[29] Visas may also be categorised into classes. There are prescribed classes of visas as well as those classes specified in particular sections of the Migration Act.[30] The prescribed classes of visa are found in Schedule 1 of the Migration Regulations 1994 (Regulations). Those classes of visa may be of a class for which provision is made in the Migration Act itself.[31]
[28] Migration Act, s 30(1)
[29] Migration Act, s 30(2)
[30] Migration Act, ss 31(1) and (2)
[31] Migration Act, s 31(3)
Visas are sometimes referred to by reference to the types of skills that are a pre-condition to a person’s being granted a visa. Visas permitting a person who has skills in one or more of a number of specified occupations who does not have an employer-sponsor are referred to as coming under GSMP. Applicants are assessed for eligibility for such a visa by reference to a Points Test. They must achieve a threshold score. Points are awarded for their English language skills, age, work experience and qualifications. Further points are awarded for work experience gained in Australia and qualifications gained from an Australian educational institution. Until February 2010, applicants under GSMP received further additional points if their occupation was included on a list maintained by the Department of Employment, Education and Workplace Relations (DEEWR). That list was known as the Migration Occupations in Demand List (MODL). Occupations on the list included information technology, engineering and accountancy together with cooking, hairdressing and hospitality. Since February 2010 when MODL was revoked, it has been replaced by a new list known as the Skilled Occupation List.
Before an applicant may apply for a visa under the GSMP, he or she must demonstrate that his or her skills have been assessed as suitable for their nominated occupation by the relevant assessing authority. When an applicant relies on cooking skills, the assessing authority is Trades Recognition Australia (TRA), which is part of DEEWR. In order to demonstrate that he or she has the requisite skills, knowledge and experience and that they meet Australian standards, the applicant will give TRA evidence of his or her qualifications and of his or her work experience. TRA assesses the evidence and decides whether the applicant’s skills, knowledge and experience are equivalent to Australian standards.
Regulation of Australian education providers
In Australia, education providers who provide vocational education and training to overseas students are governed by the Education Services for Overseas Students Act 2000 (ESOS Act). The effect of Part 2 of the ESOS Act is that all providers of education and training to overseas students must be registered on the Commonwealth Register for Institutions and Courses of Overseas Students (CRICOS). DEEWR and relevant State accreditation authorities regulate compliance with the ESOS Act. In New South Wales, the relevant State accreditation body is the Vocational Education and Training Association Board (VETAB). The Department, DEEWR and VETAB meet regularly to discuss matters of mutual concern.
Ms Pettit’s involvement with Operation Dachshund
Ms Pettit was not responsible for Operation Dachshund but she did assist the officer then holding her current position of Manager Investigations, Ms Olga Wynne, and the Case Officer with principal responsibility for the investigation, Ms Alison Gibberd, with aspects of the investigation. On the basis of Ms Pettit’s affidavit evidence, I find that both Ms Wynne and Ms Gibberd have left the Department. On the basis of her oral evidence, I find that Ms Gibberd left the Department in 2009. Also on the basis of her oral evidence, I find that Ms Pettit had led a team interviewing visa applicants when a team leader was absent overseas. She had interviewed one visa applicant as part of the investigation, helped others and sought legal advice for them.
In this section of my reasons, I will refer to the categories by reference to which the Department has grouped the documents. The same categories are referred to under the following section of my reasons when I group the claims for exemption by reference to the categories of documents in dispute. I have also set the categories out in numerical order in the attachment to these reasons.
Operation Dachshund
A. The allegations
I accept the evidence of Ms Pettit regarding the manner in which Operation Dachshund was conducted and the focus of its investigation. I do so for three reasons. The first is that there is no evidence that contradicts her evidence or calls it into question. The second is that it is not inherently implausible or illogical. The third is that it has not been queried by the applicant either in cross examination of Ms Pettit or, if it were feasible, by leading other evidence that throws doubt upon it. That Mr Twigg did not do so on behalf of Mr Lobo is probably a consequence of its not being inherently implausible or illogical. The fourth is that it is a subject on which Ms Pettit has demonstrated her knowledge and basis for her having that knowledge.
On the basis of Ms Pettit’s evidence, I find that, in late 2005 and early 2006, the Department received a series of allegations regarding SICB and two unregistered migration agents. In some instances, they were made anonymously but not so in others. The allegations were to the effect that they were providing false qualifications that could be used by visa applicants under GSMP. Specific examples of the allegations made are:
(1)A member of the public alleged that an unregistered migration agent was charging visa applicants, who had not been students at SCIB, a sum between $10,000 and $20,000 to obtain certificates SCIB to the effect that they had completed cookery courses at the college. The allegation was made to the Department’s Student Compliance Section on 20 April 2006.
(2)An unnamed source alleged that two students, who did not study at SCIB, had applied for visas under GSMP after paying their migration agent approximately $30,000 for certificates in cookery from SCIB. The allegation was made to FCIS on 30 May 2006.
(3)An anonymous source alleged that students at SCIB were able to buy its certificates from migration agents without attending the course. The allegation was made to the Department’s Business Centre in early June 2006 and then referred to its Student Compliance Section.
Documents concerning all allegations of this sort are grouped under Categories 5 and 7.
At or about the same time that the Department was receiving allegations of this sort, it was also receiving other allegations about the conduct of the unregistered migration agents who were alleged to be involved in some way in the purchase of SCIB certificates. Allegations included:
(1)Allegations that they, as unregistered migration agents, were giving migration assistance for a fee contrary to ss 280 to 284[32] of the Migration Act. Documents concerning all allegations of this sort are grouped under Category 8.
(2)An allegation was made to the Migration Agents Registration Authority by a solicitor representing a visa applicant in the Federal Court. The allegation was to the effect that the visa applicant, had paid one of the unregistered migration agents approximately $40,000 for immigration assistance including enrolment fees at the Sydney International College. Documents concerning all allegations of this sort are grouped under Category 6.
[32] In outline, these sections restrict those who may, and circumstances in which, immigration assistance may be given and immigration representations made.
B. Initial response to, and investigation of, the allegations
The Department’s Adelaide based Skilled Processing Centre (ASPC) is responsible for processing all visa applications under GSMP. As a result of the Department’s having received allegations of this sort, ASPC decided to review 71 Skilled Independent Overseas Student visa applications that had been based on a trade qualification from SICB. It allocated the task to its Integrity Branch also based in Adelaide (AIB). On 27 June 2006, AIB completed a preliminary report in which it identified what it saw as a number of inconsistencies and irregularities in the 71 applications. It recommended that investigators visit the premises of SICB to establish the authenticity of the qualifications. AIB’s report is grouped under Category 3 together with its later reports.
That recommendation was adopted and implemented on 27 July 2006 when investigators visited the offices of SICB. They asked SICB for verification of the cookery certificates that had been presented to the Department by 108 visa applicants under GSMP and purported, on their face, to have been issued. Some days later, on 3 August 2011, they were sent 108 certificates by facsimile. The certificates bore consecutive numbers and the order of those numbers matched the order in which the names of the 108 visa applicants appeared on the list.
On 15 September 2006, Ms Alison Gibberd of FCIS prepared an assessment of the allegations against the unregistered migration agents and SICB. She recommended that the matter be allocated to the investigator for a complete investigation on the basis that the allegations appeared to involve organised fraud against the GSMP. Ms Gibberd’s assessment and other documents relating to the conduct of the investigation are grouped under Category 23.
In the meantime, AIB had completed its assessment of the 108 certificates sent to it by SICB. On 29 September 2006, AIB issued a report which included the following two recommendations. The first was that thought be given to interviewing each of the 108 visa applicants as part of an assessment of the genuineness of their qualifications from SICB. The second was that there be a further visit to SICB to determine whether it had in place the relevant infrastructure, skills and resources to ensure that its students were trained to an appropriate level. The AIB’s report is grouped under Category 3.
Between the time AIB issued its report and February 2007, the Department received further allegations regarding the unregistered migration agents and SCIB. AIB identified a further 162 cases of concern so that there were now 270 cases of concern in all. It issued a further report in February 2007 to the effect that the scale of the potential fraud was now too large to be dealt with administratively. It needed to be dealt with as a criminal investigation. Again, AIB’s report is grouped under Category 3.
At or about the same time, ASPC decided that it would no longer process applications that appeared to have any links to the unregistered migration agents or to SICB. Instead, it would refer them to FCIS.
C. Preparation and approval of an Investigation Plan
On 23 April 2007, Ms Gibberd and Ms Wynne prepared an Investigation Plan summarising the allegations made against the unregistered migration agents and SCIB, identified the offences of which they were suspected of having committed and set out options that would enable FCIS to work with the AFP in gathering evidence for the purpose of the investigation. The Investigation Plan was submitted to the Deputy Director of the Department’s State Office in New South Wales for approval. This was an unusual step for most Investigation Plans were submitted to the Manager of FCIS for approval. Operation Dachshund, though, was regarded by the Department as an investigation that would be on a scale not previously undertaken. After the Investigation Plan was approved, an investigation team was formed.
The Investigation Plan had two focal points. One concerned the activities of Mr Lobo and of SICB. The other concerned the activities of the two unregistered migration agents. The Investigation Plan and its approval are grouped under Category 23.
D. Gathering evidence
On 29 May 2007, FCIS formally asked the AFP for its assistance in the investigation. The request is grouped under Category 23. That assistance took the form of the AFP’s executing search warrants at the offices of SCIB and those of two unregistered migration agents as well as at Mr Lobo’s home. The search warrants had been issued under s 3E of the Crimes Act 1914 (Crimes Act). Section 3E provides that an issuing officer, and so a magistrate, Justice of the Peace or other person authorised to issue search warrants or warrants for arrest,[33] may issue a warrant to search premises if satisfied that there are reasonable grounds for suspecting that there is or, within the next 72 hours, will be evidential material at the premises. The issuing officer decides whether he or she is satisfied of that on the basis of information given on oath. Copies of the warrants and the affidavit in support of the application for them are grouped under Category 24.[34]
[33] Crimes Act, s 3C(1)
[34] Category 24 documents are no longer in dispute between the parties.
The AFP executed the search warrants on 25 June 2007 with the assistance of investigators from FCIS, including Ms Pettit. They were executed simultaneously at the officers of SICB and of the two unregistered migration agents. Evidence was seized. Later in the day, a search warrant was executed at Mr Lobo’s home. The FCIS investigators and AFP officers involved made statements regarding the day’s events. These are grouped under Category 26.[35]
[35] Category 26 documents are no longer in dispute between the parties.
Following the execution of the search warrants, officers in FCIS logged and copied the documents and electronic material seized under the warrants. Mr Lobo was given a copy of the documents and electronic material seized from his home and from SICB. The officers then reviewed the material and began to interview witnesses. Among the witnesses were many visa applicants who had submitted qualifications from SICB in support of their applications for a visa. Current and former students and staff of SICB were also interviewed. Interviews extended over several months. Witnesses were first contacted by telephone and then interviewed in person either at their homes or places of work or, failing that, at the Department’s premises. Interviews were conducted on the understanding that they were confidential and that the information provided would be used only for the purpose of the investigation or any prosecution that might follow from it. Some of those interviewed told investigators that they did not want their names disclosed to Mr Lobo. Witness statements are grouped under Category 18.
Part of FCIS’s efforts were directed to investigating whether applicants had obtained accreditation for their qualifications from TRA by fraudulent means. Officers spoke with the owners of the businesses where the work experience was said to have been gained and visited their premises. They did so in order to verify the accuracy or otherwise of the information that various visa applicants had given to the TRA in support of their applications for a skill assessment and regarding their work experience. A number of business owners made statements. The documents relating to this part of the investigation are grouped under Categories 11[36] and 16.
[36] Category 11 documents are no longer in dispute between the parties.
Officers interviewed six visa applicants who were found to have provided false work references to the TRA and another four who had not genuinely obtained their qualifications. Others were invited to an interview but declined and withdrew their visa applications. Where visa applications were found to be supported by genuine qualifications and the work experience had been verified, they were returned to ASPC for processing.
As part of the investigation, all information had to be verified regardless of whether it was provided by suspects, witnesses or third parties of any description. Documents relating to those searches are grouped under Category 19 as are those relating to enquiries made by FICS of the immigration authorities in the United States of America (USA) about Mr Lobo. At times, verification required company and business name searches to be conducted. Documents relating to those searches are grouped under Category 22.[37] Investigations were also made into a company of which Mr Lobo was the Managing Director, Data Generale Pty Ltd. That company had sponsored a number of staff to come to Australia under GSMP. FCIS made enquiries of the immigration authorities in the USA regarding Mr Lobo. Documents relating to this aspect of the investigation are grouped under Category 14.[38]
[37] Category 22 documents are no longer in dispute between the parties.
[38] Category 14 documents are no longer in dispute between the parties.
Documents relating to the investigation of the allegations relating to SICB and Mr Lobo are grouped under Category 9. Those concerning the unregistered migration agents are grouped under Category 10.[39]
[39] Category 10 documents are no longer in dispute between the parties.
H.Steps taken by TRA and VETAB
In June 2006, the Department learned of further allegations about SICB and the unregistered migration agents when it met with TRA and VETAB at one of their regular meetings. These allegations had been made directly to either DEEWR or VETAB. Documents relating to the discussions among the three agencies are grouped under Categories 17 and 18.
FCIS notified DEEWR that some visa applicants who had presented suspect qualifications from SICB had also presented qualifications which were suspect and which appeared to have been given by other education providers. Documents relating to communications between FCIS and DEEWR are grouped under Category 16.
On 17 October 2007, VETAB advised FCIS that it had suspended SICB’s approval under the ESOS Act for a number of courses relating to Hospitality (including Cookery), Hospitality management and Hairdressing. As a consequence, SICB was prohibited from recruiting or enrolling overseas students in these courses. Four months later, on 18 February 2007, VETAB cancelled SICB’s approval and registration as a Registered Training Organisation under the ESOS Act. VETAB’s decisions were affirmed by the New South Wales Administrative Decisions Tribunal when it reviewed them on 7 July 2008.
Reports on FCIS’s investigation
Throughout its investigation, FCIS reported regularly on its progress. It made those reports to the Department’s management. Within FCIS, Operation Dachshund was recorded on its Manager’s Case Management Board List, which was updated monthly. That List records all current investigations, their status and the issues each raises. Extracts from that List are grouped under Category 25.
The Department maintains a Sensitive Cases Report regarding investigations and prosecutions relating to its programmes. Operation Dachshund is included in that report. It is also included in the list of fraud and investigations prepared by Investigations in the Department’s National Office and used to brief the Minister. These documents are grouped under Category 27.
J.The Department’s reports and briefings arising from Operations Dachshund
If there is media interest in its investigations, the Department prepares an Incident Report summarising the likely interest and summarising the status of the investigation. Incident Reports were prepared in relation to:
(1)a story broadcast on 8 October 2007 on Today Tonight regarding unregistered migration agents and mentioning one of the unregistered migration agents under investigation in Operation Dachshund;
(2)articles published on 28 November and 5 December 2007 in The Australian newspaper regarding SICB and Mr Lobo and mentioning that SICB was being investigated in relation to the sale of qualifications to foreign students applying for General Skilled Migration visas;
(3)an article published on 9 January 2008 in the Sydney Morning Herald regarding allegations against SICB; and
(4)the suspension and later cancellation of SICB’s approval and registration as a Registered Training Organisation under the ESOS Act.
Incident reports are grouped under Category 4.[40]
[40] Category 4 documents are no longer in dispute between the parties.
The Department also prepared an Information Brief for the Minister regarding Operation Dachshund and a list of questions he might be asked in Parliament (PPQs). These documents are grouped under Categories 1 and 2.
K. Conclusion of the investigation
Following FCIS’s investigation, it submitted seven briefs of evidence to the CDPP between May and July 2009:
(1)Four of the briefs concerned visa applicants who were alleged to have presented false qualifications in support of their visa applications. The Department recommended that charges be laid against each under ss 234(1)(a) and (b)[41] of the Migration Act and Division 137[42] of the Criminal CodeAct 1995 (Criminal Code).
(2)Two briefs concerned unregistered migration agents. They recommended that charges be laid against each under ss 280(1)[43] and 281(1)[44] of the Migration Act as well a further charge under s 284(1)[45] against one of them.
(3)One brief of evidence concerned Mr Lobo. The Department recommended that charges be laid against him under s 300(2) of the Crimes Act1900 (NSW) (Crimes Act).[46] Following discussions between the Department and the CDPP, the Department withdrew this brief of evidence. In its place it submitted another recommending that charges be laid against Mr Lobo under s 300(1)[47] of the Crimes Act. The brief of evidence also recommended that charges be laid against him under s 110 of the ESOS Act.[48]
[41] Among other things and in summary, s 234(1)(a) prohibits a person from presenting a forged or false document to a person performing functions under the Migration Act in relation to a visa application. Section 234(1)(b) prohibits the making of a false or misleading statement in the same circumstances when the statement is, to the person’s knowledge, false or misleading in a material particular.
[42] Division 137 of the Criminal Code establishes offences relating to false or misleading information or documents.
[43] “Subject to this section, a person who is not a registered migration agent must not give immigration assistance.” In summary, “a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant …”: Migration Act, s 276(1)
[44] “Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.” That section does not prohibit a lawyer from asking for or receiving a fee for giving immigration legal assistance or for another asking for or receiving a fee for a lawyer’s giving immigration legal assistance. “Immigration legal assistance” is given by a lawyer within the meaning of s 277.
[45] “Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance.” Exceptions are made in relation to Parliamentarians, lawyers and officials acting as officials: Migration Act, ss 284(2), (3) and (4).
[46] At the time the brief of evidence was given, s 300(2) specified an offence where “A person uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person’s, prejudice, is liable to imprisonment for 10 years.”
[47] “A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice, is liable to imprisonment for 10 years.”
[48] “(1) A person is guilty of an offence if: (a) the person intentionally provides, purports to provide or offers to provide a course to overseas students; and (b) the course is not genuine; and (c) in engaging in the conduct mentioned in paragraph (a), the person intends to facilitate, or is reckless as to facilitating, a breach of one or more conditions of any of the students’ visas (whether or not a breach in fact occurs).
The Department prepared reports regarding the remaining 266 visa applicants whose circumstances were not referred to the CDPP. In relation to some of those, the investigators concluded that they had provided genuine documents. In relation to others, it decided that administrative action was more appropriate than prosecution. Consequently, the relevant reports were referred to the Departmental officer or officers in ASPC responsible for making decisions on the visa applications. They are grouped under Category 12.
L. Action by the CDPP
The CDPP subsequently issued a Court Attendance Notice[49] specifying the offence alleged and its particulars and requiring each of the four visa applicants to attend court. It did not issue a Court Attendance Notice to Mr Lobo and subsequently, on 19 July 2010, notified the Department that it would not proceed with charges against him. In so far as the charges against Mr Lobo were concerned, the CDPP had decided that it did not regard the evidence as sufficient to prove the fault elements of the offences, which I have set out in [55(3)] above.
[49] Criminal Procedure Act 1986 (NSW), s 175
DECISION
For the reasons I have given, I have decided:
(1)in relation to those documents or parts of documents which have been marked as “Exempt” under one or more of the exemptions listed in Attachment J to these reasons being:
(a)Category A documents 1-798, 853 and 977; 5-152, 153, 238, 728, 737, 745, 762 and 991; 6-346; 7-139, 597, 509, 596 and 1019; 9-87, 553, 564, 571, 577, 579, 620, 635, 640, 643, 644, 723, 731, 734 and 1029; 12-112, 962 and 963; 13-98 and 99; 15-1018; 16-894 and 956; 23-140, 321 and 285;
(b)Category C documents 6-399 and 1001; 7-523 and 1016; 9-53, 469, 472, 482, 483, 485, 527, 547, 549, 570, 650, 692, 693, 1017 and 1020; 18-60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 263, 1023, 1074, 1083, 1084 and 1089; and
(c)Category D documents 19-401, 1054, 1055, 1056, 1057, 1058, 1059 and1060;
to affirm the decision.
(2)in relation to those documents or parts of documents considered under only one exemption and marked as “Not exempt” in relation to that exemption listed in Attachment J to these reasons being:
(a)Category B Documents 9-267, 271, 290, 322 and 1009; 9-486, 662 and 1099; 16-397 and 1062; 16-870; 19-231, 214; 272 and 376; 23-140, 321 and 285; and
(b)Category C documents 9-550 and 18-261;
to
(c)set aside the decision under review in relation to those documents or parts of the documents; and
(d)substitute a decision that those documents or those parts of the documents are not exempt from disclosure under the Freedom of Information Act 1982;
(3)in relation to those documents or parts of documents marked as “Adjourned …” under one of more of the exemptions listed in Attachment J to these reasons being:
(a)Category A documents 5-152, 153, 238, 728, 737, 745, 762 and 991; 7-139, 333, 344, 597, 636, 763, 864, 739, 741, 865, and 998; 9-475, 608, 209, 695, 725, 760, 898, 900, 556, 577, 620, 640, 643, 723, 731 and 1029; 17-286, 287 and 997; 23-140 and 321; and
(b)Category C documents 9-1017 and 1020; 18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76;
(4)in relation to documents 9-859, 875 and 876 in Category A, affirm the decision to delete the material under s 22 of the Freedom of Information Act 1982; and
(5)this decision is not to come into operation until the expiration of the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975 as the time within which a person may appeal to the Federal Court of Australia against this decision.
ATTACHMENT A
THE DOCUMENTS and EXEMPTIONS
Apart from the three documents (Documents 859, 875 and 876) said to be “exempt” under s 22(1)(a)(ii) on the basis that they are irrelevant to the request, the remaining 151 documents in dispute before the beginning of the hearing fell into four categories. A brief description of the type of information appearing in each of the four categories, an indication of the essence of the exemptions claimed in respect of all or parts of the documents in each category, the number of documents in issue and the particular documents which are claimed to be exempt in each category appears in the following table. It is based on my examination of the documents together with the categorisation of documents shown in the affidavit of Ms Pettit[50] and Attachment A to the Department’s written submissions as amended at the hearing and confirmed subsequently by the lodgement of a further copy on 20 January 2011.
[50] Exhibit 2, Attachment A
| CATEGORY A DOCUMENTS | |||||||
| Broad categorisations of documents | Exemptions | Number of documents claimed as exempt in full or in part | |||||
| Documents containing information identifying witnesses, Departmental informants and other third parties | s 37(1)(b) – confidential source s 40(1)(d) – proper and efficient conduct of operations s 41(1) – personal information | 47 (exemption claimed for parts) 18 (exemption claimed for all) | |||||
| Sub-categorisation of Category A documents | |||||||
| Sub-categorisation | Description of category of document | Documents claimed exempt in part | Documents claimed exempt in full | ||||
| 1 | PPQs | 798, 853, 977 | |||||
| 5 | Initial allegations against SICB | 152, 153, 238, 728, 737, 745, 762, 991 | |||||
| 6 | Allegations re “Sydney International College” | 346 | |||||
| 7 | Other allegations against SICB | 139, 333, 344, 597, 636, 739, 741, 763, 864, 865, 998 | 509, 596, 1019 | ||||
| 9 | Documents created as part of investigation into SICB | 475, 564, 571, 577, 608, 620, 640, 643, 644, 723, 859, 1029 | 87, 209, 553, 556, 579, 635, 695, 725, 731, 734, 760, 898, 900 | ||||
| 12 | DIAC investigation reports | 112, 962, 963 | |||||
| 13 | Third party personal information | 98, 99 | |||||
| 15 | Communications with VETAB | 1018 | |||||
| 16 | Communications with DEEWR | 956 | 894 | ||||
| 17 | Communications with VETAB and DEEWR | 286, 287, 997 | |||||
| 23 | Investigation plans | 140, 321 | 285 | ||||
| CATEGORY B DOCUMENTS | |||||||
| Broad categorisations of documents | Exemptions | Number of documents claimed as exempt in full or in part | |||||
| Documents disclosing methods for preventing, detecting, investigating or dealing with breaches of the law | s 37(2)(b) – lawful methods of investigation etc | 7 (exemption claimed for parts) 8 (exemption claimed for all) | |||||
| Sub-categorisation of Category B documents | |||||||
| Sub-categorisation | Description of category of document | Documents claimed exempt in part | Documents claimed exempt in full | ||||
| 9 | Documents created as part of investigation into SICB | 267, 271, 290, 322, 1009 | 486, 662, 1099 | ||||
| 16 | Communications with DEEWR | 397, 1062 | 870 | ||||
| 19 | Information requests | 213, 214, 272, 376 | |||||
| CATEGORY C DOCUMENTS | |||||||
| Broad categorisations of documents | Exemptions | Number of documents claimed as exempt in full or in part | |||||
| Documents containing information provided solely for the purposes of the Department’s investigation and/or on the basis that it would remain confidential | s 37(1)(b) – confidential source s 40(1)(d) – proper and efficient conduct of operations s 41(1) – personal information s 45(1) – breach of confidence | 63 (exemption claimed for all) | |||||
| Sub-categorisation of Category C documents | |||||||
| Sub-categorisation | Description of category of document | Documents claimed exempt in part | Documents claimed exempt in full | ||||
| 6 | Allegations re “Sydney International College” | 399, 1001 | |||||
| 7 | Other allegations against SICB | 523, 1016 | |||||
| 9 | Documents created as part of investigation into SICB | 53, 469, 472, 482, 483, 485, 527, 534, 547, 549, 550, 570, 650, 692, 693, 1017, 1020 | |||||
| 18 | Witness statements and related documents | 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76 60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261, 263, 1023, 1074, 1083, 1084, 1089 | |||||
| CATEGORY D DOCUMENTS | |||||||
| Broad categorisations of documents | Exemptions | Number of documents claimed as exempt in full or in part | |||||
| Correspondence with the US State Department | s 33(1)(a)(iii) – international relations s 33(1)(b) – confidential communications with foreign government | 8 (exemption claimed in full) | |||||
| Sub-categorisation of Category D documents | |||||||
| Sub-categorisation | Description of category of document | Documents claimed exempt in part | Documents claimed exempt in full | ||||
| 19 | Information requests | 401, 1054, 1055, 1056, 1057, 1058, 1059, 1060 | |||||
ATTACHMENT B
EXEMPTION: section 33(1)(a)(iii)
The exemption
Section 33(1)(a)(iii) provides that:
“A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)…
(ii)…
(iii) the international relations of the Commonwealth.”
A.“would, or could reasonably be expected to”
I must first consider when disclosure of a document under the FOI Act “would, or could reasonably be expected to” have the outcome identified in s 33(1)(a)(iii) i.e. “damage … to the international relations of the Commonwealth.” Without having regard to previous authority interpreting the expression, it suggests that the evidence must either establish that disclosure must as a logical or necessary consequence have the ability to cause that damage (so that it “would” do so) or that there is a sensible or rational basis for thinking that the damage is likely to be a consequence . The word “could” is “used to express a possibility”.[51] That is also inherent in the word “expect” which means “to think of something as likely to happen or come ….”[52] It is more nebulous than the word “would”, which is used “to express a probability”,[53] but it is not without its constraints. The word “reasonably” anchors possibility and expectation in what “could … be” securely to what is “sensible; rational; showing reason or good judgment … [and] in accordance with reason”.[54]
[51] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[52] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[53] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[54] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
What of the authorities? There are several for the expression “would, or could reasonably be expected to” appears in other provisions of the FOI Act. I will begin with the expression “could reasonably be expected to”. The Full Court of the Federal Court considered that expression in Attorney-General’s Department v Cockcroft[55] when it considered s 43(1)(c)(ii) of the FOI Act. That provision exempts from disclosure that information which concerns certain business or professional matters and which “could reasonably be expected to” prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency. Bowen CJ and Beaumont J said:
“ In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J).”[56]
[55] (1986) 64 ALR 97
[56] (1986) 64 ALR 97 at 106
In that case, Sheppard J made it clear that:
“… stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[57]
[57] (1986) 64 ALR 97 at 112
Cockcroft’s case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another.[58] It said:
“In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.”[59]
[58] (1992) 108 ALR 163; 36 FCR 111
[59] (1992) 108 ALR 163; 36 FCR 111 at 176; 123
While I realise that s 33(1)(a)(iii) uses the expression “would, or could reasonably be expected to” (emphasis added) to describe the outcome of disclosure, I will look also to the authorities that have considered the expression “could be reasonably likely” (emphasis added). I will do so for to “expect” is to “to think of something as likely to happen…” and both the expectation and the likelihood must be reasonably based.
I note that one of the earliest authorities to consider the word “likely” was Australian Telecommunications Commission v Krieg Enterprises Pty Ltd[60] (Krieg) decided by Bray CJ. His Honour considered the meaning of the word “likely” in the context of whether an employee of the respondent had reasonable cause to believe that the doing of certain work was likely to interfere with or damage property under the control of the Postmaster-General. Bray CJ said, in part:
“ As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word ‘probable’ and both words mean … that there is an odds-on chance of the thing happening. That is the way in which statutes containing the words have usually been construed: see, for example, Re Bayer Products Ltd’s Application [1947] 2 All ER 188, per Lord Green M.R. at p.191, per Asquith L.J. at p. 193” Dowling v South Canterbury Electric Power Board [1966] N.Z.L.R. 676, Transport Ministry v. Simmonds [1973] 1 N.Z.L.R. 359. Particularly is this so when the statute is a penal statute (see Transport Ministry v Simmonds [1973] 1 N.Z.L.R. 359), or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.
I think that is the meaning which should be attached to the word ‘likely’ in sub-s. (1)(a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned Special Magistrate, therefore, I think that ‘likely’ in the sub-sections means ‘probable’ and I think that that means that there is a more than fifty per cent chance of the thing happening.”[61]
[60] (1976) 14 SASR 303; 27 FLR 400
[61] (1976) 14 SASR 303; 27 FLR 400 at 312-313; 410
In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others[62] (Tillmanns Butcheries) the Full Court of the Federal Court considered whether certain conduct had the likely effect of causing substantial loss or damage to the business of the appellant in the context of the Trade Practices Act 1974. Bowen CJ, with whom Evatt J agreed, reviewed the authorities but was not prepared to prefer one interpretation of “likely” to another. Deane J reviewed the authorities and concluded:
“The conclusion which I have reached is that, in the context of s 45D(1), the preferable view is that the word ‘likely’ is not synonymous with “more likely than not” and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage. Whether or not such conduct is likely (in that sense) to have that effect is a question to be determined by reference to well-established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, it will be relevant that the persons engaging in the conduct did so with the purpose of causing such loss or damage.”[63]
[62] (1979) 27 ALR 367; Bowen CJ, Evatt and Deane JJ
[63] (1979) 27 ALR 367 at 382
Franki J in Trade Practices Commission v TNT Management Pty Ltd[64] was concerned with the meaning of the words “is likely to have” in connection with the words “significant effect on competition” as they appeared in s 45(4) of the Trade Practices Act 1974. His Honour’s consideration took place in the context of penal proceedings brought under that Act. He canvassed previous authorities and said
“In my opinion, it is desirable to note the warning given by Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union (supra), and not to place a gloss on the section by preferring one meaning of ‘likely’ rather than another if that is not necessary for the determination of a particular case. If, however, I am required to adopt a view, I consider that the word in s 45(2) now under consideration is to be read with due regard to the fact that it appears in a penal statute, that it is linked with the word ‘significant’ and that this means that, whilst the meaning need not be restricted to a situation where the odds are greater than equally balanced or somewhat less than equally balanced, the probability must be something not very far short of ‘more probably than not’, except in unusual circumstances ...”[65]
[64] (1985) 6 FCR 1
[65] (1985) 6 FCR 1 at 49
The Tillmanns Butcheries case was again referred to by the High Court in Boughey v The Queen[66] (Boughey). The High Court considered s 157(1) of the Tasmanian Criminal Code which provided that culpable homicide was murder if committed, inter alia, by means of an unlawful act or omission which the person “... knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person”. Gibbs CJ said
“It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word ‘likely’ in ss.156 and 157 of the Criminal Code Act means ‘probable’ and not ‘possible’. That is its natural meaning. It is the meaning which a draftsman, familiar with the common law rules regarding malice aforethought, might be expected to attribute to it. In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject. If ‘likely’ in s.157(1)(c) were regarded as meaning ‘possible’, that provision would have a very drastic operation, since it would treat as murder a culpable homicide caused by any unlawful act which the offender knew would possibly cause death. A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder.”[67]
[66] (1986) 161 CLR 10; Gibbs CJ, Mason, Wilson and Deane JJ, Brennan J dissenting
[67] (1986) 161 CLR 10 at 14-15
Mason, Wilson and Deane JJ referred to previous authorities, including Tillmanns Butcheries, and concluded that, in their view, the word “likely” was used with what they:
“... apprehend(ed) to be its ordinary meaning, namely, to convey the
notion of a substantial – a “real and not remote” - chance regardless
of whether it is less or more than 50 per cent: cf Sheen v Fields Pty
Ltd (51 ALR 345 at 348) and Waugh v Kippen (1986) 160 CLR 156 at
pp166-167.There is a further reason why one should not superimpose upon the word ‘likely’ in either s.156(2) or s.157(1) of the Code refinements of meaning which the word does not convey as a matter of ordinary language. A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary: see Jolowicz, Historical Introduction to the Study of Roman Law (1939), pp.491-492; Gray, The Nature and Sources of the Law (1909), pp.176-177. The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty. To bury the word ‘likely’ in s.157(1) of the Code beneath the gloss of ‘more likely than not’ and the explanation of ‘a more than 50 per cent’ or an ‘odds on' chance would be to succumb to that danger. It would also, in our view, be to attribute to the word ‘likely’ a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s.157(1) of the Code.”[68]
[68] (1986) 161 CLR 10 at 21-22
This approach was adopted by the Tribunal in Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd.[294] The Tribunal found the Australian Technology Group Pty Ltd, whose shares were owned solely by the Commonwealth and which could be wound up by the Commonwealth without any difficulty, was a public body and so required to establish detriment in the terms described by Mason J in John Fairfax.[295]
[294] [1997] AATA 192; Senior Member Bayne
[295] [295] [1997] AATA 192 at [27]-[35]
The principles in John Fairfax are not directly applicable to the disclosure of information where the claim for exemption is not centred on a claim by the Commonwealth government (or of a public body of the sort referred to in Esso) that information is confidential. Detriment, though, may still have relevance for s 45 is not concerned with whether disclosure of any sort would found an action for breach of confidence. Instead, it is concerned with whether disclosure “under this Act” would found that action. That is disclosure made in a legislative framework that reflects what Parliament considers is a proper balance of the public interest in disclosure and the public interest in protecting essential public interests and private and business affairs of persons dealing with the Commonwealth and its agencies.
The public interest grounds are not relevant to an action by a person who is not a public body of the sort considered in Esso. If, detriment is a necessary element in an action founded by such a person then, as Mason J said in John Fairfax, detriment may be that disclosure of information relating to his or her affairs will expose his or her actions to public discussion and criticism. It is apparent, though, from Fullagar J’s judgment in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd that there is more than one basis upon which breach of confidence may be established in equity. In analytical terms, one is to protect property, and information is regarded as property. The other is, in effect, to ensure that the confidant acts in a way that is consistent with good conscience and not unconscionably. If that is the case, the detriment may be the disclosure itself in circumstances in which the disclosure is neither consented to nor otherwise justified. That disclosure may be accompanied by embarrassment, distress or the like or by tangible loss or it may simply be unconscionable.
This analysis would seem to be consistent with the later judgment of Gummow J in the case of Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health[296] when he said:
[296] (1990) 22 FCR 73; 95 ALR 87
“…The basis of the equitable jurisdiction to protect obligations of confidence lies, as the present case illustrates, in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained: Moorgate Tobacco Co Limited
v Philip Morris Ltd (No. 2) at 438. The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss. To look into a related field, when has equity said that the only breaches of trust to be restrained are those which would prove detrimental to the beneficiaries?”[297]
On appeal, the Full Court adopted a similar approach.[298]
E.6Is it necessary to have regard to possible defences to an action for breach of confidence?
[297] (1990) 22 FCR 73; 95 ALR 87 at 112; 126
[298] Smith Kline & French Laboratories (Aust) Ltd and Ors v Secretary, Department of Community Services and Healthand Another [1991] FCA 150; (1991) 28 FCR 291at [51]; 304
I note that, in B and Brisbane North Regional Health Authority[299] (B and B) which considered s 46 of the Freedom of Information Act 1992 (Qld) (QldFOI), Information Commissioner Albietz considered:
“… that it is consistent with the general scheme of the Act (in which public interest considerations, and the balancing of competing public interest considerations are predominant …) that s. 46(1)(a) should be interpreted as requiring defences to an action for breach of confidence to be taken into account. …”[300]
Section 46(1)(a) of QldFOI provides that “Matter is exempt if – (a) its disclosure would found an action for breach of confidence …”.
[299] [1994] QICmr 1; (1994) 1 QAR 279; FN Albietz, Information Commissioner
[300] [1994] QICmr 1; (1994) 1 QAR 279 at [119]; 330
The defences to which the Information Commissioner turned were:
1.there is just cause or excuse for disclosing the information i.e. where it is in the public interest to use or disclose the information in that way;[301]
2.it is in the public interest to disclose the information where that disclosure reveals evidence of a crime, serious wrongdoing or matters injurious to the public health; and
3.as the person who would bring an action of the sort referred to in
s 46(1)(a) of the QldFOI would have to do so with “clean hands”, the action can be resisted on the basis that the person does so with “unclean hands”.[302]
Information Commissioner Albeitz expanded upon the circumstances in which these defences may be made out.
[301] [1994] QICmr 1; (1994) 1 QAR 279 at [123]-[124]; 331-332
[302] [1994] QICmr 1; (1994) 1 QAR 279 at [119]-[133]; 330-335
Gummow J also analysed the defence of unclean hands in Corrs Pavey where the person who had given the information to the respondent was called to give evidence. He expressly rejected any notion that what he called a “public interest defence” in the sense used in the English cases, could be considered. The English authorities to which he referred extended the unclean hands defence to “… cases where the plaintiff’s misconduct has operated to the prejudice of third parties, especially where some general public interest is involved …”.[303]
[303] (1987) 74 ALR 428 at 451
If I am correct in my view that the founding of an action is separate and apart from the defences to that action, I would also come to the view that it is irrelevant to consider them under s 45. I would so for another reason as well and will refer to a maxim to illustrate it. That maxim is described as meaning “… that when a plaintiff whose conduct has been improper in a transaction seeks relief in equity that relief will be refused”.[304] It has been considered in a variety of contexts but one example will suffice:
“… in Harrigan v Brown [1967] 1 NSWR 342, which concerned the manager of a group of entertainers who sought an injunction restraining them from employing a rival manager, in breach of their contract with him. He failed because he had kept his accounts in a most improper manner, contrary to his agreement with the troupe, although Street J specifically held that his breach of contract was not of the kind which amounted to a repudiation of it such as would entitle the defendants to rescind. …”[305]
[304] Meagher R, Heydon D and Leeming M, Equity Doctrines & Remedies, 4th edition, Butterworths, 2002[305] Meagher, Heydon and Leeming at [3-125]
In Meyers v Casey,[306] a member of the Victorian Racing Club was being threatened with expulsion after he attended a race meeting while a disqualified person. He sought an injunction on the basis that he had not been given an adequate opportunity to defend the charge. Isaacs J said:
“ But the maxim, even where the plaintiff is forced to resort to equity for its assistance, has not an unrestricted application. In the leading case of Dering v. Earl of Winchelsea …[ 1 Cox, 318] , at p. 319 Lord Chief Baron Eyre, with reference to an objection that the plaintiff had been guilty of misconduct, said:--‘It is not laying down any principle to say that his ill conduct disables him from having any relief in this Court. If this can be founded on any principle, it must be, that a man must come into a Court of equity with clean hands; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense.’
In that case, the Lord Chief Baron thought the plaintiff was the moral author of his own wrong, but not legally, and therefore did not refuse the relief. Now, in attempting to apply the principle as laid down in that case, we find that the rights asserted by the appellant, namely, membership of the club and public right under the by-laws to enter the racecourse, of course exist, if at all, by reason of circumstances wholly independent of the alleged misconduct; the wrong he complains of, namely, his condemnation by an incompetent and unauthorized tribunal in the one case, and a disregard of natural justice in the other, are equally independent of any misconduct by him. It is therefore impossible to say, in the Lord Chief Baron’s words, that his alleged misconduct has ‘an immediate and necessary relation to the equity sued for,’ or that it was ‘a depravity in a legal as well as in a moral sense.’
It is altogether different from the cases where the right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim. As an illustration, see Cadman v. Horner …[18 Ves,10]. Not only these considerations, but one other which should be specially mentioned in justice to the appellant, show that the maxim is not applicable here. That other reason is this: that the issue of whether the appellant was or was not in fact guilty of misconduct is in no way raised for the Court’s determination, whereas the misconduct in respect of which the maxim is always applied is equally with all the other matters an issue within the Court’s sphere of determination. If the racing tribunals had, or are to be taken to have had, the requisite authority, and to have acted within their powers, the finding of guilt must stand; if not, he has never been tried, and must be considered innocent until he is condemned by the proper tribunal--which was not the Supreme Court, and is not this Court. …”[307]
[306] (1913) 17 CLR 90; 19 ALR 537; Barton ACJ, Isaacs, Powers and Rich JJ
[307] (1913) 17 CLR 90; 19 ALR 537 at 123-124; 550
It is apparent that a defence of unclean hands requires examination of far more than the information contained in a document which is in the possession of an agency and which is requested under the FOI Act. It would require more than an examination of the views of the person who confided the information. Indeed, it may be that, as far as that person is concerned, he or she has observed every propriety in dealing with others and has the cleanest of hands. Whether the person seeking a remedy for a breach of confidence has clean or unclean hands depends in part on the person whom he or she alleges is in breach. The impropriety complained of under the defence of unclean hands must have an immediate and necessary relationship with, in the case of an action for breach of confidence, that breach. It is difficult to see how that immediate and necessary relationship can ever exist in the context of the FOI Act. As a person’s right of access under the FOI Act is unaffected by his or her reasons for requesting that access, the application or otherwise of the exemption is not assessed by reference to a particular person or in a particular context other than that of the FOI Act. It is whether disclosure “under this Act” would found an action for breach of confidence and not whether disclosure to a particular person in particular circumstances would do so. The defence of unclean hands is dependent upon disclosure by a particular person in particular circumstances. It cannot apply.
The inapplicability of the defence is underlined by the lack of particular provision made in the FOI Act for consultation in relation to s 45.[308] In only three instances has the FOI Act prescribed a formal process of consultation. One occurs in relation to a request in respect of documents likely to affect Commonwealth-State relations and so possibly exempt under s 33. It is found in
s 26A. Another is found in s 27A in relation to a request for documents containing personal information and possibly subject to the exemption in s 41. The third is found in s 27 in relation to a request for documents containing information relating to business affairs and possibly subject to the exemption in s 43.[308] This is quite apart from the informal processes of consultation that may occur. There is no question that, in relation to some exemptions and in some circumstances at least, an agency or Minister will wish to consult with those who have supplied information to it. Whether it does so or not will be determined by whether the document concerned clearly falls within or without an exemption or whether the application of the exemption is unclear. Some exemptions will, for all practical purposes, require the agency to whom the request is directed to consult with another. Cabinet documents of the sort described in s 34 may provide an example of that. Others will require an agency or Minister to look within to determine whether or not a document is exempt. Section 40 is an example of that.
Had it been thought that it relevant to consider possible defences in deciding whether or not disclosure would found an action for breach of confidence within the meaning of s 45, it would have been expected that the FOI Act would have prescribed a formal process of consultation of some sort. That it has not done so in relation to s 45 when it has done so in relation to ss 26A, 27 and 27A is a recognition that it is not required by the terms of s 45.
I realise that this appears to be a conclusion contrary to that favoured by Gummow J in Corrs Pavey. I am not bound by his judgment, given as it is in relation to an earlier version of s 45 and then in dissent. Even so, in the context of the development of s 45, I regard it with a considerable amount of respect. On the unclean hands defence, though, I note that his Honour has considered that defence only in the context of cases in the general law. His attention does not appear from his judgment to have been drawn to the particular context in which disclosure is made under the FOI Act and it is disclosure under the FOI Act to which s 45 refers. It seems to me that the context of the FOI Act is an important difference and one which permits me to distinguish his Honour’s judgment in Corrs Pavey.
The exemptions and the documents
A.Category C documents
Category 7 documents: 523 and 1016
Category 9 documents: 53
Document 523 is an email from what is described in the Schedule as a “third party” to an investigator working on Operation Dachshund. It contains an express statement that the information it provided “is to be confidential”. That information is the information within the email. I am satisfied that it is capable of being confidential. It is not publicly available. It is clear from the text of the email that it has been communicated in confidence. On the basis of the evidence of Ms Pettit regarding the manner in which the information was collected, I am satisfied that information communicated in confidence was received on that basis. It has been given and received in circumstances that create an obligation of confidence from the Department to the third party. Although there is no specific evidence on the point, I am satisfied from its subject matter and the circumstances in which it was given that to disclose the information would bring at least embarrassment or discomfort to the third party. If detriment is required, that would be the detriment.
Having regard to all of these matters, I am satisfied that disclosure of Document 523 would found an action for breach of confidence by the third party. It follows that it is exempt under s 45 of the FOI Act.
Document 1016 comprises a chain of emails between the Department and another person regarding teachers at the SICB. Exemption is claimed for the name and contact details of the person communicating with the Department on the basis that the person is a “departmental informant”. For the reasons that Document 523 is exempt, so too is this document. It contains information of the sort found in Document 523. In so far as it contains additional information, that information reflects that in Document 523. Disclosure of that information would be equally subject to an obligation of confidence and disclosure under the FOI Act would be a breach of confidence. I am satisfied that Document 1016 is exempt under s 45.
Document 53 is a file note written as part of Operation Dachshund regarding a telephone conversation with a person said to be a “confidential informant”. I am not satisfied that the document is exempt under s 45 as a whole or at all. I have already decided that certain parts are exempt under s 40(1)(d) but I am not satisfied that the information it records has been communicated in confidence or is capable of being regarded as confidential information. It has not been communicated in circumstances that give rise to an obligation of confidence and disclosure of it under the FOI Act would not found an action for breach of confidence. Document 53 is not exempt under s 45 of the FOI Act.
ATTACHMENT I
DELETION: section 22
The provision
Section 22 provides for the deletion of exempt matter or irrelevant material. In this instance, it is relied upon only for the deletion of what is claimed to be irrelevant material. Therefore, I have set out its provisions only in so far as they relate to that. Section 22(1) provides:
“Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is not an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i)would not be an exempt document; and
(ii)would not disclose such information; and
(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”
Section 22 does not provide for an exemption
A claim that s 22 applies is often framed in terms of documents’ being exempt under s 22 or that an exemption under s 22 is claimed. This is not accurate. Section 22 is a tool and not a barrier. It is a tool that must be used if it is reasonably practical to use it in the sense understood in s 22(1)(c) and if the outcome will be a document that does not contain exempt matter or information irrelevant to the request.
The term “exempt matter” is a reference to “… matter the inclusion of which in a document causes the document to be an exempt document.”[309] An “exempt document” means “a document which, by virtue of a provision of Part IV, is an exempt document”,[310] “a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act”[311] or “an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[312] Section 22 is not a provision of Part IV coming, as it does, in Part III. It comes into consideration when documents are assessed as exempt but that does not make it an exemption provision itself. A decision that a document is exempt is made under the relevant provision or provisions of Part IV. A decision that information in a document is irrelevant to the request is made under s 15. Both are decisions refusing to grant access in accordance with a request and are reviewable under s 54.
[309] FOI Act, s 4(1)
[310] FOI Act, (a) of definition in s 4(1)
[311] FOI Act, (b) of definition in s 4(1)
[312] FOI Act, (c) of definition in s 4(1)
In the meantime, the tool in s 22 enhances the object of the FOI Act to “… extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth …”.[313] If it were not available, those requesting access to a document that contained some exempt matter and some that is not would be denied access to the whole document. The same would be true of irrelevant matter. This comes about because a person’s legally enforceable right to obtain access to a document in accordance with that legislation is, in the case of an agency, limited to a document of an agency, “other than an exempt document” be it of a document of an agency or an official document of a Minister.[314] It is a right that is, subject to the provisions of the FOI Act circumscribed by the request that is made under s 15. That request must provide “… such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”.[315] By deleting the exempt matter and the irrelevant matter, the document becomes a document, to which the person making the request has a right of access.
[313] FOI Act, s 3(1).
[314] FOI Act, s 11(1)
[315] FOI Act, s 15(2)(b)
The provision and the documents
Two of the three documents said to be irrelevant to Mr Lobo’s request are Documents 875 and 876 in Category 9. These documents comprise different snapshots of the same chain of emails. Mr Lobo has been given access to those parts of the information in those emails that relate to him, SICB or students who have attended SICB. That was the information he sought in the documents that he requested under s 15.[316] The remaining content of those documents does not. I am satisfied that they are irrelevant to the documents he requested and that the content has been properly deleted from the documents to which he has been given access under the FOI Act.
[316] See [6] above
Document 859 is a printout from a computerised record and headed “Search Results”. Having read the documents in the four volumes of documents in dispute, I am satisfied that the Department has properly deleted the names and identifying information of several people. Those people do not feature in any of the other documents and I am satisfied that there is no basis for considering that they bear any relationship to Mr Lobo or to SICB, the investigation or the students attending SICB.
In relation to some exemptions in relation to some documents for which exemption has been claimed in part, I have addressed the obligations that arise under s 22 in relation to the deletion of exempt matter. I have come to a conclusion on those documents. I have also considered the issue in relation to all of the documents for which partial exemption was claimed but, rather than setting out my reasons in relation to each, I decided to give them for all at once. I am satisfied that the decisions made as a consequence of s 22 are the correct decisions. I have made specific reference to instances in which non-exempt material has been interwoven and it would not be reasonably practicable to separate it from the exempt material. On other instances, I am satisfied that only that material for which exemption has been claimed has been properly deleted.
ATTACHMENT J
DECISION
| DOCUMENT | EXEMPTIONS | SECTION 22 | ||||||
| 33(1)(a)(iii) | 33(1)(b) | 37(1)(b) | 37(2)(b) | 40(1)(d) | 41(1) | 45(1) | ||
| Category A[317] | ||||||||
| 1-798, 853 and 977 | Not exempt[318] | Exempt[319] | Exempt[320] | |||||
| 5-152 | Exempt in respect of two line passage on folio 202 and first third of folio 201 and second half of folio 202. [321] | Exempt re person giving information[322] Not exempt re names migration agents[323] or visa applicants[324] | Exempt re identifiers of those giving information[325] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[326] | |||||
| 5-153 | Exempt respect of name or names and details, including contact details, of the informant or informants.[327] | Exempt re person giving information[328] Not exempt re names migration agents[329] or visa applicants[330] | Exempt re identifiers of those giving information[331] Adjourned re identifiers of migration agents/agencies under investigation[332] | |||||
| 5-238 | Not exempt[333] | Exempt re person giving information[334] Not exempt re names migration agents[335] or visa applicants[336] | Exempt re identifiers of those giving information[337] Adjourned re identifiers of migration agents/agencies under investigation[338] | |||||
| 5-728, 737 and 745 | Exempt[339] | Exempt re person giving information[340] Not exempt re names migration agents[341] or visa applicants[342] | Exempt re identifiers of those giving information[343] Adjourned re identifiers of migration agents/agencies under investigation[344] | |||||
| 5-762 | Exempt[345] | Exempt re person giving information[346] Not exempt re names migration agents[347] or visa applicants[348] | Exempt re identifiers of those giving information[349] Adjourned re identifiers of migration agents/agencies under investigation[350] | |||||
| 5-991 | Exempt[351] | Exempt[352] | Exempt re identifiers of those giving information[353] Adjourned re identifiers of migration agents/agencies under investigation[354] | |||||
| 6-346 | Not exempt[355] | Exempt re person giving information[356] Not exempt re names migration agents[357] | Exempt[358] | |||||
| 7-139 | Not exempt[359] | Exempt re person giving information[360] Not exempt re names migration agents[361] | Exempt re identifiers of those giving information[362] Adjourned re identifiers of migration agents/agencies under investigation[363] | |||||
| 7-333 and 344 | Adjourned re identifiers of migration agents/agencies under investigation[364] | |||||||
| 7-597 | Not exempt[365] | Exempt[366] | Adjourned re identifiers of migration agents/agencies under investigation[367] | |||||
| 7-636, 763 and 864 | Adjourned re identifiers of migration agents/agencies under investigation[368] | |||||||
| 7-509, 596 and 1019 | Not exempt[369] | Exempt[370] | Exempt[371] | |||||
| 7-739, 741, 865 and 998 | Adjourned re identifiers of visa applicants under investigation[372] | |||||||
| 9-87 | Exempt[373] | |||||||
| 9-475 and 608, 209, 695, 725, 760, 898 and 900 | Adjourned re identifiers of visa applicants under investigation[374] | |||||||
| 9-553 | Exempt re names identified in [361] of reasons[375] | |||||||
| 9-556 | Adjourned re identifiers of visa applicants under investigation[376] | |||||||
| 9-564 | Not exempt[377] | Exempt[378] | Exempt[379] | |||||
| 9-571 | Not exempt[380] | Exempt[381] | ||||||
| 9-577 | Not exempt[382] | Exempt re person giving information[383] Not exempt re names migration agents[384] | Exempt re identifiers of those giving information[385] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[386] | |||||
| 9-579 | Exempt[387] | |||||||
| 9-620 | Not exempt[388] | Exempt re person giving information[389] Not exempt re names migration agents[390] | Exempt re identifiers of those giving information[391] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[392] | |||||
| 9-635 | Exempt[393] | |||||||
| 9-640 and 643 | Exempt re identifiers of those giving information[394] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[395] | |||||||
| 9-644 | Exempt[396] | |||||||
| 9-723 | Exempt[397] | Exempt re identifiers of those giving information[398] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[399] | ||||||
| 9-731 | Exempt re identifiers of those giving information[400] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[401] | |||||||
| 9-734 | Exempt[402] | |||||||
| 9-859, 875 and 876 | Properly deleted[403] | |||||||
| 9-1029 | Exempt re identifiers of those giving information[404] Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[405] | |||||||
| 12-112 | Not exempt[406] | Exempt[407] | ||||||
| 12-962 and 963 | Not exempt[408] | Exempt[409] | Exempt[410] | |||||
| 13-98 and 99 | Exempt[411] | |||||||
| 15-1018 | Exempt[412] | Exempt[413] | Exempt[414] | |||||
| 16-894 | Exempt[415] | |||||||
| 16-956 | Not exempt[416] | Exempt[417] | Exempt[418] | |||||
| 17-286, 287 and 997 | Not exempt[419] | Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[420] | ||||||
| 23-140 and 321 | Not exempt[421] | Exempt re identifiers of those giving information Adjourned re identifiers of migration agents/agencies under investigation[422] | ||||||
| 23-285 | Not exempt[423] | Exempt[424] | ||||||
| Category B | ||||||||
| 9-267, 271, 290, 322 and 1009; 9-486, 662 and 1099; 16-397 and 1062; 16-870; 19-231, 214, 272 and 376 | Not exempt[425] | |||||||
| 23-140, 321 and 285 | Not exempt[426] | |||||||
| Category C | ||||||||
| 6-399 and 1001 | Not exempt[427] | Exempt[428] | Exempt[429] | |||||
| 7-523 and 1016 | Exempt[430] | Exempt[431] | Exempt[432] | Exempt[433] | ||||
| 9-53 | Not exempt[434] | Exempt[435] | Exempt re: (1) names in lines 1-10, 21, 28, 29 and 35 on first page and lines 1, 5, 13, 22, 29 and 31 on second page;[436] and (2) penultimate paragraph and lines 7 and 8 on second page.[437] | Not exempt[438] | ||||
| 9-469 | Exempt | Exempt[439] | Exempt[440] | |||||
| 9-472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693 | Not exempt[441] | Exempt[442] | Exempt[443] | |||||
| 9-550 | Not exempt[444] | Not exempt[445] | ||||||
| 9-1017 and 1020 | Not exempt[446] | Exempt[447] | Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[448] | |||||
| 18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76 | Not exempt[449] | Not exempt[450] | Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[451] | |||||
| 18-60, 64, 65, 70, 78, 81, 82, 83, 84, and 85 | Not exempt[452] | Exempt[453] | Exempt[454] | |||||
| 18-261 | Not exempt[455] | Not exempt[456] | ||||||
| 18-263 | Not exempt[457] | Exempt[458] | ||||||
| 18-1023, 1074, 1083, 1084 and 1089 | Not exempt[459] | Exempt[460] | Exempt[461] | |||||
| Category D | ||||||||
| 19-401, 1054, 1055, 1056, 1057, 1058, 1059 and 1060 | Exempt[462] | Exempt[463] | ||||||
[317] Document’s sub-category noted in bold numbering
[318] See [155]-[159]
[319] See [256]-[263]
[320] See [332]-[335]
[321] See [160]-[167]
[322] See [264]
[323] See [265]
[324] See [266]
[325] See [336]
[326] See [337]-[340]
[327] See [164]
[328] See [264]
[329] See [265]
[330] See [266]
[331] See [341]
[332] See [341]
[333] See [165]
[334] See [264]
[335] See [265]
[336] See [266]
[337] See [336]
[338] See [337]-[340]
[339] See [167]
[340] See [264]
[341] See [265]
[342] See [266]
[343] See [336]
[344] See [341]
[345] See [167]
[346] See [264]
[347] See [265]
[348] See [266]
[349] See [336]
[350] See [337]-[340]
[351] See [167]
[352] See [264]
[353] See [336]
[354] See [337]-[340]
[355] See [168]-[169]
[356] See [264]
[357] See [265]
[358] See [342]-[343]
[359] See [170]-[171]
[360] See [264]
[361] See [265]
[362] See [336]
[363] See [344]
[364] See [345]
[365] See [170]-[171]
[366] See [264]
[367] See [345]
[368] See [345]
[369] See [172]-[174]
[370] See [264]
[371] See [346]
[372] See [347]
[373] See [350]-[354]
[374] See [34]-[349]
[375] See [355]-[361]
[376] See [363]
[377] See [175]
[378] See [264]
[379] See [350]-[354]
[380] See [175]
[381] See [264]
[382] See [175]
[383] See [264]
[384] See [265]
[385] See [357]-[358]
[386] See [355]-[356]
[387] See [362]
[388] See [176]
[389] See [264]
[390] See [265]
[391] See [354]-[356]
[392] See [355]-[356]
[393] See [350]-[354]
[394] See [357]-[358]
[395] See [357]-[358]
[396] See [350]-[354]
[397] See [178]
[398] See [356]-[358]
[399] See [355]-[356]
[400] See [354]-[356]
[401] See [355]-[356]
[402] See [350]-[354]
[403] See [422]-[423]
[404] See [354]-[356]
[405] See [355]-[356]
[406] See [178]-[179]
[407] See [364]-[365]
[408] See [178]-[179]
[409] See [264]
[410] See [364]-[365]
[411] See [366]-[367]
[412] See [181]-[183]
[413] See [264]
[414] See [368]-[369]
[415] See [370]
[416] See [183]-[184]
[417] See [264]
[418] See [370]
[419] See [185]
[420] See [371]
[421] See [186]-[188]
[422] See [372]-[373]
[423] See [186]-[188]
[424] See [374]
[425] See [215]-[220]
[426] See [186]-[189]
[427] See [190]-[191]
[428] See [267]-[269]
[429] See [375]-[376]
[430] See [192]-[193]
[431] See [270]-[271]
[432] See [377]
[433] See [413]-[415]
[434] See [194]
[435] See [272]-[273]
[436] See [378]-[379]
[437] See [380]-[381]
[438] See [416]
[439] See [274]
[440] See [382]
[441] See [196]
[442] See [274]
[443] See [383]-[384]
[444] See [197]
[445] See [275]-[278]
[446] See [198]
[447] See [274]
[448] See [385]
[449] See [200]
[450] See [279]
[451] See [386]
[452] See [201]
[453] See [280]
[454] See [387]
[455] See [202]-[203]
[456] See [281]-[282]
[457] See [202]-[203]
[458] See [283]
[459] See [204]-[205]
[460] See [284]
[461] See [388]
[462] See [88]-[89]
[463] See [95]
I certify that the four hundred and twenty three paragraphs and ten attachments are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi, Associate
Date of Hearing 17 January 2011
Date of Decision 11 October 2011
Counsel for the Applicant Mr J TwiggSolicitor for the Applicant Ms M Jockel
Russell Kennedy
Counsel for the Respondent Mr S Rebikoff
Solicitor for the Respondent Ms M Gangemi
Australian Government Solicitor
Maximum penalty: Imprisonment for 2 years, 100 penalty units or both.
(2) The fault element for paragraph (1)(b) is knowledge.
(3) For the purposes of subsection (1), a course is not genuine if it is provided without serious regard to reasonable standards of education or training (including standards relating to attendance and participation by students) or if the course is a sham.”
“For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of:
(a) witnesses; or
(b)people who, because of their relationship to, or association with, a witness need, or may need, such protection; or
(c) any other people who, for any other reason, need or may need, such protection.”
Those illustrations do not represent the scope of s 40(1)(d) in its entirety but what they do illustrate is that, as Weinberg J said in Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73) (Jorgensen), the reference to the “operations of an agency” in
s 40(1)(d) is not:
“… limited to matters relating to the internal administration of the agency, such as a consultant’s report upon its operations, but extended to the way in which the agency discharged or performed any of its functions. …” ([2004] FCA 143; (2004) 208 ALR 73; at [73]; 88)
Mr Jorgensen had asked the Australian Securities and Investments Commission (ASIC) for access to a report it had prepared after he had complained about the way in which its officers had conducted an investigation into whether he had contravened the Corporations Law. He also asked for access to all material relating to the investigation. Weinberg J held that the Tribunal had made no error in affirming ASIC’s claim to exemption on this ground.
His Honour referred to the earlier case of Searle Australia Pty Ltd v Public Interest Advocacy Centre ((1992) 36 FCR 111; 36 FLR 111; 108 ALR 163; Davies, Wilcox and Einfeld JJ). The Public Interest Advocacy Centre had asked the Department of Health for access to the names of external evaluators who had reported to the Department on applications made by Searle Australia Pty Ltd under the Therapeutic Goods Act 1966. The issue before the Full Court of the Federal Court was whether disclosure under the FOI Act would have a substantial adverse effect on the operations of the Department of Health. It held that the Tribunal had been correct to reject a submission that s 40(1)(d):
“… should be read as limited to matters related to the internal administration of the agency, such as a report by an outside agency or consultant on the operations of the agency. … The Tribunal said:
‘41. As was stated in Re James and Australian National University[173](1984) 2 AAR 327 at 340 the expression “the conduct of the operations of an agency” extends “to the way in which an agency discharges or performs any of its functions”.’
… There is no warrant for importing into the words of the section a limitation along the lines contended for.” ((1992) 36 FCR 111; 36 FLR 111; 108 ALR 163)
“ It must be remembered that all this had to be considered in the context of a complainant who had apparently been willing to go on television to voice her complaints. It is appropriate to note here the observations of the Full Court in Colakovski in which, Lockhart J (with whom Jenkinson and Heerey JJ relevantly agreed), in considering an equivalent provision in the Commonwealth freedom of information legislation, said:
‘For example, a document may contain statements about a person’s private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s “personal affairs”. Such a document would therefore prima facie answer the description of one which relates to the ‘personal affairs’ of a person within s 41(1). Whether any disclosure of the information would be an “unreasonable disclosure” within s 41(1) is a different question. If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an “unreasonable disclosure”...”… [(1991) 29 FCR 429 at 436] (Emphasis added.)’”
Equity Doctrines & Remedies, R Meagher, D Heydon and M Leeming, 4th edition, 2002, Butterworths, Australia (Meagher, Heydon and Leeming)
16
17
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