Re Moore and Military Rehabilitation and Compensation Commission
[2006] AATA 425
•17 May 2006
Administrative
Appeals
Tribunal
ORDER AND REASONS FOR ORDER [2006] AATA 425
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/422
VETERANS’ APPEALS DIVISION ) Re NATHANIAL MOORE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
ORDER
Tribunal Senior Member B J McCabe Date17 May 2006
PlaceBrisbane
In relation to the summons directed to Wing Commander Bartetzko and the summons directed to the Director of Records, Department of Defence the Tribunal makes the following directions pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975:
1. The respondent’s solicitor and counsel and the applicant’s solicitor and counsel be granted access to documents contained in the report of Squadron Leader McIvor which relate to the following matters:
1.1.The applicant’s reporting of illicit drug use at RAAF Amberley to relevant authorities;
1.2.Documents commenting upon the evidence provided by the applicant to investigating RAAF officers;
1.3.Documents relating to discussions between investigating officers and XY regarding the alleged assault upon the applicant by XY;
1.4.Cultural issues within the Royal Australian Air Force relating to the alleged harassment of the applicant.
2. The respondent’s solicitor and counsel and the applicant’s solicitor and counsel be granted access to documents held by the Director of Records, Department of Defence which relate to the following matters:
2.1.Psychologist’s reports in relation to XY’s alleged propensity to violence;
2.2.Medical records and reports relating to XY’s alleged propensity to violence;
2.3.Records of disciplinary proceedings involving XY and relating to XY’s alleged propensity to violence.
3. The solicitors for the Department of Defence are to extract documents falling within the above classes of documents from the records held by Wing Commander Bartetzko and the Director of Records and make the extracted documents available for inspection by the respondent’s solicitor and the applicant’s solicitor and counsel.
4. The extracted documents are to be inspected at the offices of the solicitors for the Department of Defence on a date to be agreed with the applicant’s solicitors and the respondent’s solicitors.
5. The respondent’s solicitor and counsel and the applicant’s solicitor and counsel are permitted to make notes from those documents for the purpose of preparing for the hearing of this application.
6. The respondent’s solicitor and counsel and the applicant’s solicitor and counsel are not to disclose the contents of the extracted documents to the applicant, or any other person without the leave of the Tribunal.
7. This order applies until further order.
............[Sgd]...........
BJ McCabe
SENIOR MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE – return of summons – objection to produce material covered by the summons – relevance of class of documents sought by the applicant – public interest immunity – privacy considerations of third parties – confidentiality order under s 35 of AAT Act capable of balancing competing public interest concerns
Administrative Appeals Tribunal Act 1975 s 35, s 40(1A), (1C), s 61
Defence (Inquiry) Regulations 1985 Reg 69
Ajka Pty Ltd and Australian Fisheries Management Authority (1995) 39 ALD 445
Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Hobart Central Child Care Pty Ltd and Commissioner of Taxation (2004) 84 ALD 86
Sankey v Whitlam (1978) 142 CLR 1
Trade Practices Commission v Arnotts (1989) 88 ALR 90
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corporation [1997] FCA 578
WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175
WRITTEN REASONS FOR ORDER
17 May 2006 Senior Member B J McCabe introduction
1. Mr Nathanial Moore is the applicant in these proceedings. He was formerly a member of the Royal Australian Air Force (the RAAF). He claims he suffers from a psychiatric condition and a jaw condition. He says the respondent is liable to compensate him under the Safety Rehabilitation and Compensation Act 1988 because the conditions arose out of the circumstances of his employment.
2. The applicant’s solicitor asked the Tribunal to issue summonses seeking information from the Department of Defence. In particular, the applicant seeks access to the following documents:
·A copy of a report by Squadron Leader McIvor into allegations of illegal drug use in the Airfield Defence Wing. That document is held by Wing Commander Mark Bartetzko.
·A copy of the personnel file of a member of the RAAF who shall be identified in these reasons as XY. That document is held by the Director of Records within the Department of Defence.
3. The Department of Defence opposes the release of these records. It has asked the Tribunal to relieve the Department of the obligation to produce the documents, or to at least impose a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975. The respondent explained in its letter of 6 March 2006 that it did not wish to make any submissions in relation to the summons, although Mr Crethary (on behalf of the respondent) raised questions at the return of summons hearing over the relevance of the documents that were being sought. I do not propose to address further requests for summonses in these reasons. These reasons relate to the two documents referred to above.
THE MATERIAL BEFORE THE TRIBUNAL
4. The Department filed the affidavits of Air Commodore Cameron and Geoffrey John Early, Inspector General Australian Defence Force.
5. The Department also produced to the Tribunal a copy of each of the documents sought by the applicant. Copies were not given to the applicant or his counsel. It was agreed between the parties that I should have regard to the documents in the course of making my decision.
6. The Department was represented by Mr North, SC and Ms Ford of counsel.
7. The applicant produced a number of documents that were apparently released under the Freedom of Information Act 1982. He was represented by Mr Harding of counsel.
a brief history of the proceedings
8. The reviewable decision is found at document T90 of the s 37 documents. The reviewable decision notes the applicant lodged two claim forms: one related to a psychiatric condition and the other related to a jaw condition. The claim form in relation to the psychiatric condition (document T4) suggests the condition arose in the following circumstances:
Since reporting illegal drug activity at RAAF base Amberley I have been subjected to harassment, death threats, physical assaults.
9. The claim form in relation to the jaw condition (document T5) says the injury arose because the applicant was assaulted following “my reporting illegal drug use at RAAF base Amberley”. The applicant says he was assaulted by XY on 29 July 2002 at the applicant’s residence.
10. The reviewable decision notes the Australian Federal Police did not regard the applicant as a confidential informant. It also points out the Queensland Police apparently believed the assault arose out of a dispute over the applicant’s former girlfriend, rather than anything to do with allegations of illicit drug use. The decision-maker accepted the applicant suffered from a jaw condition and a psychiatric condition but she decided the applicant’s conditions were not connected with his employment. The respondent was not liable to pay compensation as a result.
11. During the course of the hearing, counsel for the respondent and the Department of Defence claimed the applicant’s case was changing. They said the applicant appeared to be developing an argument that even if he was not harshly dealt with as a result of his whistle-blowing activities, the RAAF was nonetheless in breach of a duty owed to the applicant as an employee because his supervisors knew the airman who committed the assault was dangerous. Mr Harding, for the applicant, did not resile from this suggestion: he insisted it was legitimate for an applicant to reframe its case as fresh information emerged. He said the applicant was entitled to have access to documents that might yield additional information even if that resulted in the applicant emphasising different aspects of his case. The respondent and the Department of Defence suggested the applicant was engaged in a fishing exercise. They also argued the documents were irrelevant to the applicant’s case as disclosed in his claim forms.
the relevant law
12. The Tribunal’s power to issue a summons is set out in s 40(1A). It is a discretionary power: the Tribunal is not obliged to issue a summons, or issue it in a particular form, just because a party asks the Tribunal to do so. A person who fails to comply with a summons is guilty of an offence: s 61. Section 40(1C) empowers the Tribunal to excuse a person from producing documents in compliance with a summons.
13. The Act does not offer any express direction as to how the power to issue a summons or excuse production should be exercised. One must look to the cases for guidance. The leading authority on the Tribunal’s powers in relation to summonses is arguably Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432. In that case, an applicant in Tribunal proceedings sought production of certain books and documents by a third party. The Tribunal struck out portions of the summonses. On appeal, Spender J proceeded on the basis that the general principles applicable to the issue of a summons in the Tribunal were the same as those applicable to the issue of a subpoena in a court. His Honour said that one important consideration is relevance. His Honour cited with approval the decision of Beaumont J in Trade Practices Commission v Arnotts (1989) 88 ALR 90. Beaumont J said (at 103) one must look to whether the material sought has “apparent relevance” in the sense that the information “could possibly throw light on the issues in the…case”.
14. Spender J took the same approach in Cosco, but cautioned (at 439) that the word “possibly” in Arnotts “is not used in any speculative sense.” His Honour warned (at 440): “It is not a question of looking at the documents to see if the documents might permit a case to be made.” That would amount to a fishing expedition. After referring to WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 at 181 and Treasurer of the Commonwealth of Australia v Canwest Global Communications Corporation [1997] FCA 578, his Honour said (at 441) a request for documents that is “essentially speculative in nature” would qualify as a fishing expedition.
15. Relevance is not the only criterion. There might be other situations where the Tribunal is justified in not issuing a summons, or where it could excuse a party from complying. The Department of Defence said it should be excused from producing the McIvor report in particular on the basis of public interest immunity.
16. Public interest immunity was discussed by the High Court in Sankey v Whitlam (1978) 142 CLR 1. In Sankey, Gibbs ACJ explained (at 38):
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.
17. Sankey dealt with important state documents like cabinet papers and Executive Council minutes. But there are other situations where a court might refuse to compel the disclosure of documents. The respondent says there is a public interest in maintaining the confidentiality of investigative processes like those undertaken by Squadron Leader McIvor.
18. The House of Lords considered whether there might be a public interest in maintaining the confidentiality of investigative processes in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. In that case, the Society was charged under a statute with responsibility for investigating complaints about the treatment of children. An inspector of the Society carried out an investigation which failed to detect any wrongdoing. When wrongdoing subsequently came to light, the mother of the child in question sued the Society for negligence. In the course of the proceedings, she sought discovery of certain records. The Society resisted on the basis its mission would be compromised unless it could maintain the confidentiality of its records.
19. The House of Lords held the documents should not be disclosed. Their Lordships recognised the Crown had a legitimate interest in the protection of children from abuse. Parliament gave effect to that interest by enacting legislation authorising the Society to assume certain protective functions. Lord Diplock explained the public interest to be protected in that case was the “effective functioning of an organisation authorised under an Act of parliament to bring legal proceedings for the welfare of children”: at 220-221. Their Lordships declined to limit the immunity to departments or organs of the state.
20. Deputy President Forgie concluded in Hobart Central Child Care Pty Ltd and Commissioner of Taxation (2004) 84 ALD 86 that it was possible to claim the immunity in appropriate cases in the Tribunal: cf Ajka Pty Ltd and Australian Fisheries Management Authority (1995) 39 ALD 445. I agree.
21. My discussion of the law would not be complete without reference to the Tribunal’s power under s 35 to restrict the publication of material. Section 35(2) permits the Tribunal to make an order limiting the publication of material or limiting access to the hearing where it is desirable to do so “by reason of the confidential nature of any evidence or matter or for any other reason”. Section 35(3) points out the Tribunal must have regard to the desirability of conducting its proceedings in the open when deciding whether or not to make an order under s 35(2).
22. The existence of the power in s 35 must be taken into account when the Tribunal considers whether or not the recipient of a summons ought to be excused from producing a document on the basis of the public interest. If an order limiting disclosure can be made that adequately protects the public interest while enabling the applicant to access documents that are otherwise relevant to his or her case, the Tribunal should carefully consider making an order under s 35(2) in preference to non-disclosure.
the summons directed to wing commander bartetzko
23. I turn now to the summons directed to Wing Commander Bartetzko requiring production of a bundle of documents including the report of Squadron Leader McIvor. The McIvor report was commissioned by Air Commodore Cameron on 23 October 2002 following a Queensland police raid on the home of a serving member of the RAAF the preceding month. Squadron Leader McIvor was appointed as an investigating officer pursuant to Regulation 69 of the Defence (Inquiry) Regulations 1985 (the Regulations). The Regulations were made under the Defence Act 1903.
(a) relevance and fishing
24. At first glance, the subject matter of the McIvor report is relevant in the sense that part of it at least may shed light on the matters in issue in these proceedings. The report examines allegations of illegal drug-taking at Amberley airbase, where the applicant was stationed. It comments on the culture of the people serving there. It refers to some of the protagonists in this case, including the applicant. But Spender J warned in Cosco that more was required before a court would compel disclosure. An applicant must have some reason for believing the document sought will yield evidence that supports a case he has made. It is not enough for him to cast about seeking documents that will enable a case to be made: Cosco at 440.
25. It follows it is necessary to begin by identifying with some precision the case being advanced by the applicant. That task is made more difficult in the absence of a statement of facts and contentions. After hearing the applicant’s representatives, examining the reviewable decision and the claim forms and perusing the correspondence from the applicant, the applicant’s principal claim appears to be as follows: while in the employ of the RAAF at Amberley, he became concerned about illicit drug use. He reported his concerns to the authorities, and ultimately to the Queensland police. The police action that followed against another member of the RAAF led to an investigation. He says the fact he provided information to the authorities became known amongst other members at some point, and he was (a) assaulted by one or more of the individuals who were affected by the police action (albeit that he was assaulted before the police action took place) and (b) he was harassed by other members of the RAAF.
26. I have had the opportunity to peruse the McIvor report and the associated documents that were handed to me by Mr North on behalf of the Department of Defence. The author of the report comments on the value of the evidence provided by the applicant. He includes notes on conversations with XY about the alleged assault and its motivation. The author also comments on cultural issues within the RAAF that might shed some light on the question of whether or not harassment is likely to have occurred. While it is unclear whether the report assists the applicant’s case, a number of the matters therein appear to go to the heart of the case the applicant has made thus far. I am satisfied the documents are relevant and, subject to what follows, they must be produced.
(ii) public interest immunity
27. Does the public interest require that the McIvor report and associated documents not be disclosed even though they are relevant to the proceedings before the Tribunal? The Department of Defence says it should be excused from producing the document because disclosure would compromise its ability to conduct investigations and maintain discipline in the future.
28. The Department’s concerns are outlined in the affidavit of Air Commodore Cameron. He pointed out (as did Mr North, in his submissions) that inquiries under the Regulations must not be held in public (Reg 72). Members of the Defence Force are compelled to answer questions (Reg 74) although they are not required to give evidence on oath (Reg 73). The records and report of an Investigating Officer are treated in the same way as the records and report of a Court of Inquiry for certain purposes: Reg 78. One consequence is that it is an offence to disclose the contents of a report or a record of an investigation under the Regulations without authority, or unless the disclosure occurs in the course of a person’s duty: Reg 63.
29. Mr North says the Regulations evidence a clear intention that documents like those sought by the applicant were to remain confidential. It is not hard to imagine why that might be so: persons being interviewed by an Investigator are more likely to be frank if they are confident the information they provide will not be widely disseminated. Investigating Officers might also be more forthright in making their recommendations.
30. I accept there is a public interest in maintaining the confidentiality of records and reports generated in the course of investigations under the Regulations. As in D v National Society for the Prevention of Cruelty to Children, public disclosure of the McIvor report and associated documents might compromise the effective performance of a task required by statute.
31. It does not necessarily follow that any disclosure of the material is unacceptable. The Regulations plainly contemplate disclosure in some cases and for some purposes. I think it is possible to fashion an order under s 35(2) that would permit the records and the report to be used for the limited purpose of proving (or disproving) the applicant’s claim in these proceedings without undermining the integrity of the investigative process under the Regulations. An order under s 35(2) limiting access to the documents to the applicant’s solicitor and Mr Harding (but not to the applicant) for use in connection with these proceedings would enable the Tribunal to balance the public interest in maintaining the confidentiality of investigative process with the (sometimes competing) public interest in informed decision-making by the Tribunal.
the summons directed to the director of records
32. The applicant has also asked the Department to produce the personnel file of XY. Mr Harding says the file is relevant to the applicant’s claim that he was assaulted and harassed by other members of the RAAF. It was also relevant to the emerging claim that the RAAF should not have exposed him to someone with XY’s propensities and history.
(a) relevance and fishing
33. I have perused XY’s personnel file. I note it contains portions of the McIvor report. There is a great deal of material that has nothing to do with these proceedings. That is unsurprising. But there is also some material – psychologists’ reports and other documents – that may shed some light on XY’s state of mind and behaviour towards the applicant and others. Records of disciplinary proceedings might also shed some light on the issues in the case.
34. I am satisfied Mr Moore is not seeking access to the personnel file in the hope of identifying some documents that will enable him to make a case against the respondent. He is at least generally aware of reports that XY experienced behavioural problems. The applicant’s lawyers are presumably trying to prove that the RAAF knew about those problems. The obvious place to look for evidence of that knowledge is the personnel file of the individual in question. The applicant and his lawyer are not merely speculating about what XY may have done, or how the RAAF may have responded.
35. In those circumstances, I accept that portions of XY’s file that refer to the applicant or which suggest a propensity to violent behaviour are relevant to the proceedings. Subject to what follows, they ought to be disclosed in response to the summons.
(ii) public interest immunity
36. There is an obvious public interest in maintaining the confidentiality of personnel records. Privacy is an important value in and of itself. A lukewarm commitment to privacy on behalf of the Department might cause those preparing reports appearing on the file to be less frank. It might also diminish the trust of members of the Defence Forces in their managers, which could lead to inefficiency and other operational problems. Public interest in maintaining the confidentiality of personal information is evident in the provisions of the Freedom of Information Act 1982 and the Privacy Act1988.
37. I am deeply troubled that XY’s privacy – and perhaps the privacy of some of his supervisors and others – will be compromised if any part of the personnel file is released. But I must balance that concern against the knowledge that the applicant may be frustrated in his attempt to argue the merits of his case before the Tribunal if I do not permit disclosure. In the circumstances, I propose making an order requiring that those portions of the personnel file referring to the applicant or which suggest a propensity to violent behaviour be disclosed to Mr Harding and the applicant’s solicitor (but not to the applicant) for use in connection with these proceedings.
conclusion
38. I invited the parties to make submissions on the precise forms of orders under s 35(2) of the Administrative Appeals Tribunal Act 1975 in accordance with these reasons. Mr North tendered a draft set of orders. The applicant’s representatives agreed the orders were in an appropriate form. The orders are appended to these reasons.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe
Signed: .................................................................
Associate Adam RyanDate of Hearing 29 March 2006
Date of Decision 17 May 2006
The applicant was represented by Mr Harding of counsel.
The respondent was represented by Mr Crethary.
The Department of Defence was represented by Mr North SC and Ms Ford of counsel.
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