Saint and Director of Professional Services Review
[2006] AATA 929
•30 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 929
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/309, 408
GENERAL ADMINISTRATIVE DIVISION ) Re WARREN JOHN SAINT Applicant
And
DIRECTOR OF PROFESSIONAL SERVICES REVIEW
Respondent
DECISION
Tribunal Deputy President S D Hotop Date30 October 2006
PlacePerth
Decision Application No W2005/309
The Tribunal affirms the decision under review.
Application No W2005/408
The Tribunal affirms the decision under review.
.....[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – applicant requested access to documents relating to operations of Professional Services Review Committee – respondent is an agency, being a prescribed authority – Committee is deemed to be comprised within respondent agency – exempt documents – internal working documents – disclosure contrary to public interest – documents subject to legal professional privilege – decisions under review affirmed
Freedom of Information Act 1982 (Cth) s 3, s 4, s 11, s 36, s 42, s 58 and s 61
Bennett v Chief Executive Officer of the Australian Customs Service (2003) 37 AAR 8
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Re Burns and Australian National University (1984) 1 AAR 456
Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Harris v Australian Broadcasting Corporation (1983) 50 ALR 551
Herijanto v Refugee Review Tribunal (2000) 170 ALR 379
Herijanto v Refugee Review Tribunal (No 2) (2000) 170 ALR 575
Re James and Australian National University (1984) 6 ALD 687
Re Kamminga and Australian National University (1992) 26 ALD 585
Mann v Carnell (1999) 201 CLR 1
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301
Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
REASONS FOR DECISION
30 October 2006 Deputy President S D Hotop Introduction
1. The applicant has applied to the Tribunal for review of 2 decisions made by the respondent in respect of requests made by his solicitor on his behalf for access to certain documents under the Freedom of Information Act 1982 (Cth) (“FOI Act”).
2. In each of those decisions the respondent decided to release certain documents to the applicant’s solicitor, and to refuse the applicant’s solicitor access to certain other documents on the ground that those documents were “exempt documents” under various provisions of Part IV of the FOI Act.
The Issue and the Tribunal’s Determination
3. The general issue for the Tribunal’s determination is whether each of the abovementioned documents to which access has been refused is an “exempt document” under Part IV of the FOI Act.
4. For the reasons which follow, the Tribunal has determined that each of those documents is an “exempt document” under Part IV of the FOI Act.
The Relevant Provisions of the FOI Act
5. The object of the FOI Act is set out in s 3 which relevantly provides:
“(1)The object of this Act is 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 by:
...
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
...
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
6. Section 4(1) contains the following relevant definitions:
"agency means a Department, a prescribed authority or an eligible case manager.”
“document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.”
"exempt document means:
(a) a document which, by virtue of a provision of Part IV, is an exempt document;
...”
“prescribed authority means:
...
(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order‑in‑Council; or
...”
Section 4(2) provides:
“An unincorporated body, being a board, council, committee, sub‑committee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purposes of this Act, but shall be deemed to be comprised within that prescribed authority.”
7. Section 11 provides:
“(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.”
8. Part IV of the FOI Act contains provisions relating to various categories of “exempt documents”. The relevant provisions of Part IV are as follows:
“36 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
...”
“40 Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
...
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
...
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”
“42 Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
...”
9. Finally, Part VI of the FOI Act, which deals with review of decisions under that Act, contains (inter alia) the following relevant provisions in respect of review by the Tribunal:
“58 Powers of Tribunal
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
...”
“61 Onus
(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
...”
The Statutory Context in which the Relevant Documents were Created
10. The relevant documents were created in the context of the “Professional Services Review Scheme” established by Part VAA of the Health Insurance Act 1973 (Cth) (“the HI Act”) – that is, “a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice”: see s 80(2).
11. Section 83 authorises the Minister to appoint a medical practitioner to be the Director of Professional Services Review. Section 84 establishes the Professional Services Review Panel which consists of practitioners appointed by the Minister, and s 85 authorises the Minister to appoint Panel members to be Deputy Directors of Professional Services Review.
12. Section 93 authorises the Director to set up a Committee in accordance with Division 4 and make a referral to the Committee to investigate whether the person under review engaged in “inappropriate practice” (as defined in s 82) in providing specified services.
13. Division 4 deals with Professional Services Review Committees set up under s 93. Section 95 provides for the constitution of such Committees as follows:
·a Committee consists of a Chairperson (who is a Deputy Director) and 2 other Panel members appointed by the Director;
·the Chairperson and the other Panel members must be practitioners who belong to the profession in which the relevant practitioner was practising when the relevant services were rendered;
·the other Panel members must belong to the same category within the relevant profession (eg specialist in relation to a particular specialty, general practitioner) as the relevant practitioner.
14. Sections 97-106F deal with the proceedings of Committees. Section 97 provides for the Chairperson to convene meetings of the Committee. Section 98 provides that:
·the Committee may regulate the proceedings of its meetings as it thinks fit;
·meetings must be held in private;
·the Committee may (subject to other provisions) inform itself in any way it thinks fit.
Section 101 provides for the Committee to hold a hearing at which evidence is given, and/or documents are produced to the Committee. Section 102 requires the Committee to give to the person under review written notice of a proposed hearing, and s 103 sets out the rights of a person under review at a hearing, including the right to legal representation, the right to call witnesses and to question any person giving evidence, and the right to make a final address to the Committee. Sections 106-106EA deal with the conduct of hearings and miscellaneous related matters. Section 106F deals with the protection of Committee members, representatives and witnesses at hearings and relevantly provides:
“(1) A Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court.”
15. Sections 106G-106N provide for the action to be taken by Committees. Section 106KD requires the Committee to prepare a written draft report of its preliminary findings, and to give to the person under review a copy of the draft report together with a notice inviting the person to make to the Committee, within 1 month, written submissions suggesting changes to the draft report. Section 106L requires the Committee, after taking into account any submissions made by the person under review, to prepare a final report setting out its findings, and to give a copy of the final report to the person under review, the Director and the “Determining Authority”.
16. Division 5 provides for the “Determining Authority” to make determinations to deal with “inappropriate practice” found by a Committee.
17. Division 6 contains various provisions relating to the Director, Panel members, staff and consultants, the Determining Authority, and the provision of services to a Committee or to the Authority. Section 106ZM(1) provides:
“The staff necessary to assist the Director are to be persons engaged under the Public Service Act 1999.”
Section 106ZPL provides:
“(1) It is the duty of the Director to arrange for the provision of services to every Committee and to the Determining Authority for the purpose of the performance of the functions or the exercise of the powers of the Committee or Authority under this Part.
(2) The Director must not arrange for a person who has provided services other than clerical or administrative services to the Director in connection with a Director’s review:
(a) to provide services other than clerical or administrative services to a Committee in connection with matters arising out of a referral resulting from the review; or
(b) to provide services other than clerical or administrative services to the Authority in connection with the consideration by the Authority of:
(i) an agreement entered into as a result of the review that is referred to the Authority by the Director for ratification; or
(ii) a report by a Committee to the Authority as a result of the Committee’s consideration of a referral resulting from the review.
(3) The Director must not arrange for a person who has provided services other than clerical or administrative services to a Committee in connection with matters arising out of a referral to the Committee to provide services other than clerical or administrative services to the Authority in connection with the consideration by the Authority of a report by the Committee in respect of those matters.
(4) A person who provides services to a Committee or the Authority under an arrangement made by the Director under subsection (1) is not subject to the direction of the Director in connection with the provision of those services.
(5) In this section:
services includes:
(a) clerical or administrative services; and
(b) investigative services; and
(c) advisory services provided by a practitioner; and
(d) legal services.”
18. Finally, Division 7 contains miscellaneous provisions including:
“106ZR Disclosure of Committee deliberations etc.
(1) A person must not disclose to another person:
(a) any of the deliberations or findings of a Committee; or
(b) any information or evidence given to the Committee in the course of its deliberations;
unless the disclosure is required or permitted under this Act or is necessary in connection with the performance of the firstmentioned person’s functions or duties under this Act.
Penalty: Imprisonment for 12 months.
(3) This section does not prevent a person from making a disclosure:
(a) to a lawyer for the purpose of obtaining legal advice or representation relating to a matter involving the deliberations or findings of the Committee; or
(b) if the person is a lawyer—for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client.
(4) In this section:
lawyer means a barrister or solicitor.”
19. The documents which are the subject of the present proceedings comprise certain documents which were created in connection with the operations of a particular Professional Services Review Committee (Professional Services Review Committee No 204), and certain documents which were created in relation to the operations of such Committees in general under Part VAA of the HI Act.
The Evidence
20. The evidence before the Tribunal comprised the “T Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in Application No W2005/309 (T1-T18, pp 1-66) and Application No W2005/408 (T1-T14, pp 1-64), Exhibits A1-A9 tendered by the applicant and Exhibits R1-R3 tendered by the respondent, and the oral evidence of Anthony David Webber and John Herbert Jenner.
The evidence of Anthony David Webber
21. Dr Webber is presently the Director of Professional Services Review, his appointment having commenced on 14 February 2005.
22. Dr Webber made the decision, dated 29 June 2005, which is presently under review in Application No W2005/309. An affidavit sworn by Dr Webber on 30 January 2006, which outlines the relevant request for access to documents, the decision-making process and the decision in relation to that request, and a subsequent decision made by him on 8 December 2005 in relation to that request, was tendered in evidence (Exhibit R1).
23. Dr Webber gave oral evidence about the operations of Professional Services Review Committees. He said that typically the medical practitioner under review would bring his/her records to the Committee hearings, and the members of the Committee would question him/her on 5 or 6 services in detail, after which the members of the Committee would discuss those services. Present at that discussion would be the 3 members of the Committee and the Committee secretary, but not the medical practitioner or his/her representative. The role of the Committee secretary is to record the findings of the Committee.
24. Dr Webber confirmed that a Committee is then required to produce a draft report and, subsequently, a final report. He confirmed that there is a standard format for such a report comprising a “standardised sequence of sections” in which comments about the particular practitioner, the subject of the report, are inserted. As regards the production of a draft report, Dr Webber said that the secretary types a draft which is then circulated to the members of the Committee for comment and such comments are received by the Chairperson who forwards them to the secretary for incorporation in the draft report. He confirmed that there are often several drafts of the draft report before it is in the form of the draft report which is sent to the practitioner under review for comment. As regards the production of the final report, Dr Webber said that its contents will also include further comments made by the Committee in relation to the submissions received from the practitioner under review, and that when those contents are settled the final report will be typed by the secretary.
25. Dr Webber was asked to explain the references, in some of the documents in issue in these proceedings, to a person identified as Dr Robin Bell. He explained that Dr Bell was a lawyer employed by Minter Ellison, Lawyers, who was provided by Minter Ellison to the Professional Services Review for the purpose of providing legal advice. He added that, although Dr Bell’s office was located in the offices of the Professional Services Review, he was not an employee of the Professional Services Review.
26. In cross-examination Dr Webber confirmed that Dr Bell’s role was to provide legal advice to him and his staff, and also, from time to time, to Professional Services Review Committees.
27. Dr Webber was asked to outline the tasks usually performed by members of Professional Services Review Committees. His evidence was as follows:
“Initially, it would be one of review, this is before a hearing process, would have been reviewing the documentation, the medical records, being fully acquainted with the material, that's the first step, certainly. The second step would be generally to meet as a committee before a hearing to discuss the aspects of the case, to discuss what were the significant issues, which particular member of the committee was going to deal with which consultations, just the administrative arrangements in the hearing process. There may have been, and I'm not sure about this particular committee, but in other committees there's often a teleconference associated with that or sometimes a face to face meeting, depending on where people are around Australia and then in the committee process, once the committee is sitting formally, a committee member’s role is to conduct questioning and usually, not always, but usually that's done for convenience, say in blocks of five consultations and the chairperson may designate one committee member to, say, go through one set of questioning on five consultations and the other committee member's role would be to take notes while he's doing so and then the role would swap around. Generally when there are breaks in the proceeding, morning tea or toilet stops or whatever, there's a time to then discuss as a committee each individual consultation and come to an understanding or come to a consensus view of what the findings were, to often make notes as one does so, but also to ensure that the committee's secretary has recorded accurately the committee's views and in doing that, it's my experience that the chair will ask the committee secretary to read back to them what she's written and to make sure the committee is happy with what she has written in note form. At the end of the proceedings, the committee or the chair will generally outline to the practitioner under review a preliminary finding of the committee. At that stage, the committee secretary's role is to collate all this data right up into some sort of draft of a draft, circulate that around the committee and that can sometimes be at a meeting, it can sometimes be by mail, sometimes there is need for a teleconference to discuss the issues, sometimes there's not. It depends on the complexity of the issues and the case involved and how much involvement the chair has. Some chairs would appear to be more active in that process, others are less active. It's hard to be specific because there's such a variety of ways people do it.” (Transcript, p 24)
28. Dr Webber was asked to state his understanding of the role that the secretariat should play in relation to the Professional Services Review Committees. His evidence was as follows:
“It's a role that encompasses many things. Apart from the procedural aspects of arranging clients, booking rooms, organising the physicality of the hearing, co-ordinating ‑ ‑ ‑
The role is also to arrange and co-ordinate a group of three or more doctors and believe me that can be like herding cats. It's extraordinarily difficult to get three doctors to agree to actually have a time to have a teleconference let alone a hearing. So that there's quite a bit of organisational work involved in that. She also has a role to explain to the committee members any problems that they have with their understanding of their role so that they understand quite clearly their role because ... it might be their first committee hearing, they might not have had a committee hearing for a couple of years so often there's a need for a bit of a refresher as to the role and expectations. That's usually done in conjunction with the chair. So apart from that organisational role her role in the hearing is to take down as accurately as possible the findings of the committee when they're discussing each group of services and feed that back to the committee and the chair to make sure she has that accurately. Her role then is when back in the office to put the bare bones of the draft report together with all the sections that are normally involved, certainly to send that out to the committee members, to, if necessary, have further conferences with the committee as a whole and not uncommonly to respond to telephone queries by either the chair or individual members of the committee if they're unclear on a particular requirement or have any other questions and once the copies of the draft, etcetera, having to collate all that into a draft to send that out again to be sure that everyone is in agreement with it and then to organise the sending of the draft report to the practitioner.” (Transcript, pp 28, 29)
The evidence of John Herbert Jenner
29. Mr Jenner is the Executive Officer, Professional Services Review, and he is the person who made the decision, dated 7 December 2005, which is presently under review in Application No W2005/408. An affidavit sworn by Mr Jenner on 14 March 2006, which outlines the relevant request for access to documents, and the decision-making process and the decision in relation to that request, was tendered in evidence (Exhibit R3).
30. Mr Jenner was referred to Australian Public Service Position Profile documents (Exhibit A1) in respect of the positions of Secretariat Officer, Professional Services Review (APS Level 6), Senior Secretariat Officer, Committee Section, Professional Services Review (Executive Level 1), and Senior Committee Secretary, Professional Services Review, (Executive Level 1). Mr Jenner confirmed that such positions were occupied by certain persons involved in the creation of certain documents which are in issue in these proceedings, namely, Ms K Horler and Ms J Walton. Mr Jenner added that another such person, namely, Ms A Selvidge, is the Manager of the Committees Unit, Professional Services Review, and occupies an Executive Level 2 position.
31. Mr Jenner also gave evidence about the role of Committee secretaries as follows:
“Secretaries to the committees carry out the whole range of functions right through from arranging travel for committee members, arranging accommodation if they're required to travel interstate, meeting rooms, Auscript through to providing what we call a secretariat function for the committee for meetings and hearings and that includes preparation of documentation towards meetings and hearings and then following that reports, both the draft and the final reports.
Just if I can clarify that; when you say preparation of the draft and final reports, preparation from what?‑‑‑Preparation of a draft report. During a committee hearing there will be breaks and adjournments during the day/days of hearings. During those breaks the committee will discuss amongst themselves the particular services that have been discussed prior to that adjournment and they will then come to findings on individual services and they will talk about the reasons for those findings and it's from those discussions that the secretariat, on instructions from the committee, will prepare a draft report.” (Transcript, p 49)
Analysis and Findings
32. It is common ground that the Director of Professional Services Review is an “agency” (as defined in s 4(1) of the FOI Act) for the purposes of the FOI Act, being a “prescribed authority” (as also defined in s 4(1) of the FOI Act – see para (c) of that definition). As regards the status of a Professional Services Review Committee established under s 93 of the HI Act, the Tribunal finds that, by reason of s 4(2) of the FOI Act, such a Committee is “deemed to be comprised within” the Director of Professional Services Review and is, accordingly, “deemed to be comprised within” an “agency” for the purposes of the FOI Act.
Application No W2005/309 – the categories of “exempt documents” within which the relevant documents are claimed by the respondent to fall
33. The relevant documents are numbered 52, 61-64, 68-70, 72, 78, 82-86, 91, 92, 96, 99 and 143. The respondent claims that:
·each of those documents is an “exempt document” by virtue of s 36(1) of the FOI Act (“internal working documents”);
·each of those documents – with the exception of Document 92 – is an “exempt document” by virtue of s 40(1)(d) of the FOI Act;
·each of Document 68, Document 85 and Document 91 is an “exempt document” by virtue of s 42(1) of the FOI Act (“documents subject to legal professional privilege”).
Section 36(1) of the FOI Act – Internal working documents
34. A document will be an “exempt document” by virtue of s 36(1) of the FOI Act if its disclosure under that Act would (relevantly):
·“disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”; and
·“be contrary to the public interest”.
35. As regards the former requirement, the classic statement of principle was enunciated by the Tribunal in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at 606:
“58 As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36(1)(a) come into play.”
In Re James and Australian National University (1984) 6 ALD 687 the Tribunal reiterated the abovementioned statement in Re Waterford and went on to say (at 694):
“65 In my view, however, there is nothing in the language of s 36(1)(a) to require that a document must be a communication from one person to another before it can be found to fall within that paragraph. The protection that s 36 potentially affords to documents relating to the deliberative processes involved in the functions of an agency should not, in my view, be constrained by any attempt to construe the words of the section otherwise than according to their natural and ordinary meaning. With respect to deliberative process documents, Parliament itself has cast the net very wide. It is sufficient to bring a document within s 36(1)(a) if the disclosure of the document would disclose matter in the nature of or relating to opinion, advice or recommendations obtained, prepared or recorded or consultation or deliberation that has taken place, in the course of or for the purposes of the deliberative processes involved in the functions of the agency. The care that has been taken to describe in the most ample terms the deliberative process documents that are to be comprehended as falling within s 36(1)(a) militates against any narrow or pedantic construction of the ambit of that paragraph.” (original emphasis)
36. As regards the latter requirement, as the Tribunal pointed out in Re Burns and Australian National University (1984) 1 AAR 456 at 458:
“The question of course is not whether disclosure would be in the public interest. It is whether disclosure would be contrary to the public interest, requiring analysis of the public interest in the matter.”
In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 Beaumont J said (at 561):
“In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (see Sankey v Whitlam (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 52).”
Similarly, in Re Kamminga and Australian National University (1992) 26 ALD 585 the Tribunal said (at 588):
“Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant’s right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306; Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant’s personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551;...”
More recently, in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Tamberlin J said (at 75-76):
“The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.”
Finally, in McKinnon v Secretary, Department of Treasury [2006] HCA 45 Gleeson CJ and Kirby J said (at para 5):
“A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above [the object stated in s 3(1)(b) of the FOI Act], which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).” (original emphasis)
37. The Tribunal now turns to consider whether each of the documents in issue is an “exempt document” by virtue of s 36(1) of the FOI Act. In so doing, the Tribunal notes that the requirement prescribed by s 36(1)(a) will be satisfied where disclosure of the particular document would disclose matter either “in the nature of” or, more generally, “relating to”, inter alia, “consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”: see Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301 at 307, 309.
Document 52
38. Document 52 is described in the “Schedule of Documents for which Exemptions have been Claimed” (“the Schedule”) tendered by the respondent (Exhibit R2) as an email from Dr W Ruse, Chairperson of Professional Services Review Committee No 204, to Ms J Walton, Committee Unit, Professional Services Review, dated 17 February 2002, “providing comments about medical services rendered by Dr Saint which were under consideration by the Committee”. The Tribunal, having inspected this document, would describe it as a draft report of a hearing conducted by the Committee and the opinions subsequently formed by the Committee regarding medical services rendered by a medical practitioner to various patients, together with a covering email from Dr Ruse to Ms J Walton requesting that it be sent to the other members of the Committee.
39. The Tribunal is satisfied, and finds, that Document 52 satisfies para (a) of s 36(1) of the FOI Act.
40. As regards para (b) of s 36(1) of the FOI Act, the respondent submitted that disclosure of Document 52 (and, indeed, all of the other abovementioned documents in issue), would be contrary to the public interest on the following grounds:
·Section 106ZR of the Health Insurance Act 1973 makes it a criminal offence for a person to disclose to another person any of the deliberations or findings of a Professional Services Review Committee or any information or evidence given to a Professional Services Review Committee in the course of its deliberations, unless the disclosure is required or permitted under the Health Insurance Act or is necessary in connection with the performance of the firstmentioned person’s functions or duties under that Act. The existence of this section clearly indicates that the legislature does not regard disclosure of Committee deliberations to be in the public interest. Part VAA provides for the person under review to be furnished only with a copy of the Committee’s draft report (and subsequently with a copy of the Committee’s final report).
·The notes of members of an adjudicative body made in relation to matters on which they are statutorily bound to reach a reasoned finding in a draft report on which the person under review is given a legal entitlement to comment should not be disclosed. The Health Insurance Act specifically provides for the draft report alone of the PSR Committee to be provided to the person under review for comment. Members of a Committee would be severely inhibited in their task if their hearing notes or preliminary drafts or parts of a draft report or correspondence passing between the Committee Secretary and members as to how findings in the draft report should be formulated were disclosed.
·Members of Professional Services Review Committees have, in the performance of their duties, the same protection and immunity as a Justice of the High Court: see s 106F(1) of the Health Insurance Act. It would be contrary to the public interest if the immunity of Committee members from disclosing any aspect of their decision-making process – an immunity which is “required to ensure freedom of thought and independence of judgment” – were rendered illusory by that process being disclosed by other means such as disclosure under the FOI Act: see Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 at 383; Herijanto v Refugee Review Tribunal (No 2) (2000) 170 ALR 575 at 576, 577.
41. The Tribunal accepts the respondent’s submission. In the Tribunal’s opinion, the considerations referred to in the respondent’s submission are of such overriding significance (McKinnon at FCR 76 per Tamberlin J) as to render disclosure of Document 52 contrary to the public interest. The Tribunal finds, therefore, that Document 52 also satisfies para (b) of s 36(1) of the FOI Act.
42. Accordingly, the Tribunal finds that Document 52 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Document 61
43. Document 61 comprises an “In Confidence” draft of the Draft Report of Professional Services Review Committee No 204, dated 15 May 2003, created by Ms J Walton (Committee Unit, Professional Services Review) and provided by her to her supervisor, Ms A Selvidge (Committee Unit, Professional Services Review) for her comments. The document contains a handwritten note from Ms Walton to Ms Selvidge commenting on the Committee’s deliberations, and handwritten comments by Ms Selvidge.
44. The applicant submitted that this document was created by Ms Walton, not by the Committee, and that there is “no indication that there was any input into this document by any member of the Committee”, and that it accordingly does not satisfy para (a) of s 36(1) of the FOI Act.
45. The Tribunal does not accept the applicant’s submission. Although Document 61 was physically created by Ms Walton (not a member of the Committee) and contains handwritten comments by her and by Ms Selvidge (also not a member of the Committee), that document purports to be – and the Tribunal accepts that it is – a draft of a Draft Report of the Committee’s deliberations and preliminary findings made in accordance with s 106KD of the HI Act. The Tribunal is satisfied that disclosure of Document 61 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
46. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of Document 61 “would be contrary to the public interest”, within the meaning of s 36(1) (b) of the FOI Act.
47. The Tribunal finds, therefore, that Document 61 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 62 and 63
48. Documents 62 and 63 were created by Ms K Horler (Committee Unit, Professional Services Review) and comprise draft appendices to the draft of the Draft Report of Professional Services Review Committee No 204 which contain summaries of the Committee’s findings and reasons in relation to “MBS Item 36 services” provided by Dr Saint.
49. The Tribunal is satisfied that disclosure of each of Document 62 and Document 63 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of agency”, within the meaning of s 36(1)(a) of the FOI Act.
50. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of each of Document 62 and Document 63 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
51. The Tribunal finds, therefore, that each of Documents 62 and 63 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 64, 68-70, and 72
52. Document 64 comprises an “In Confidence” draft of the Draft Report of Professional Services Review Committee no 204, dated 1 September 2003. Document 68 comprises an “In Confidence” draft of the abovementioned Draft Report and a covering memorandum from Ms K Horler to Dr R Bell, dated 1 September 2003, attaching the draft for his “review”. Documents 69, 70 and 72 each comprise an “In Confidence” draft of the abovementioned Draft Report and a covering letter dated 1 September 2003 from Ms K Horler to the Chairperson or a member (as the case may be) of the Committee enclosing the draft for their “review and comment”, and each document includes handwritten comments by the recipient.
53. The Tribunal is satisfied that disclosure of each of Documents 64, 68, 69, 70 and 72 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
54. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of each of Documents 64, 68, 69, 70 and 72 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
55. The Tribunal finds, therefore, that each of Documents 64, 68, 69, 70 and 72 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Document 78
56. Document 78 is described in the Schedule (Exhibit R2) as follows:
“Chart breaking down issues raised by Dr Saint in his submissions about the Draft Report of the Committee into his rendering of medical services. Sets out proposed tasks for the Committee and the secretariat in terms of further investigation, deliberation and other action as a result of the submissions.”
Document 78, however, also contains comments, views and preliminary findings previously expressed by the committee for the purpose of, or in the course of, preparing the Draft Report. That being the case, the Tribunal is satisfied that disclosure of Document 78 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
57. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of Document 78 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
58. The Tribunal finds, therefore, that Document 78 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 82-84
59. Documents 82, 83 and 84 comprise comments by the Chairperson (Document 84), and by each of the other 2 members (Documents 82 and 83), of Professional Services Review Committee No 204 in response to Dr Saint’s submissions in relation to the Draft Report of the Committee.
60. The Tribunal is satisfied that disclosure of each of Documents 82, 83 and 84 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
61. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of each of Documents 82, 83 and 84 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
62. The Tribunal finds, therefore, that each of Documents 82, 83 and 84 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 85 and 86
63. Document 86 comprises the draft response of Professional Services Review Committee No 204 to Dr Saint’s submissions in relation to the Committee’s Draft Report. Document 85 contains the same matter as Document 86 but also contains handwritten comments by Dr R Bell.
64. The Tribunal is satisfied that disclosure of each of Documents 85 and 86 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
65. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of each of Documents 85 and 86 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
66. The Tribunal finds, therefore, that each of Documents 85 and 86 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 91, 92, 96 and 99
67. Each of Documents 91, 92, 96 and 99 contains a draft of the Final Report of Professional Services Review Committee No 204. Document 91 also contains a covering memorandum from Ms K Horler to Dr R Bell, dated 22 April 2004, requesting Dr Bell to review the draft, and handwritten comments by Dr Bell. Document 92 also contains a covering memorandum from Ms K Horler to Ms A Selvidge, dated 22 April 2004, requesting Ms Selvidge to review the draft, and handwritten comments by Ms Selvidge.
68. The Tribunal is satisfied that disclosure of each of Documents 91, 92, 96 and 99 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
69. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of each of Documents 91, 92, 96 and 99 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
70. The Tribunal finds, therefore, that each of Documents 91, 92, 96 and 99 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Document 143
71. Document 143 comprises various documents which contain the working notes and worksheets of members of Professional Services Review Committee No 204, a draft of the Draft Report, and a draft of the Final Report, of the Committee.
72. The Tribunal is satisfied that disclosure of Document 143 “would disclose matter in the nature of, or relating to,... deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency”, within the meaning of s 36(1)(a) of the FOI Act.
73. The Tribunal is also satisfied, for the reasons referred to in paragraphs 40-41 above, that disclosure of Document 143 “would be contrary to the public interest”, within the meaning of s 36(1)(b) of the FOI Act.
74. The Tribunal finds, therefore, that Document 143 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Sections 40(1)(d) and 42(1) of the FOI Act
75. Having regard to the Tribunal’s findings that each of the documents in issue in Application No W2005/309 is an “exempt document” by virtue of s 36(1) of the FOI Act, it is unnecessary for the Tribunal to consider whether any of those documents is an “exempt document” by virtue of s 40(1)(d) or s 42(1) of the FOI Act.
Application No W2005/408 – the categories of “exempt documents” within which the relevant documents are claimed by the respondent to fall
76. The relevant documents are numbered 1, 3-5, and 7-12. The respondent claims that:
·each of those documents is an “exempt document” by virtue of s 36(1) of the FOI Act;
·each of those documents is an “exempt document” by virtue of s 42(1) of the FOI Act.
77. The applicant concedes that each of Documents 3, 4, 5, 7, 8 and 9 is an “exempt document” by virtue of s 42(1) of the FOI Act – a concession which, in the Tribunal’s opinion, was rightly made – and the Tribunal so finds.
78. Accordingly, the only documents which remain in issue are Documents 1, 10, 11 and 12.
Section 36(1) of the FOI Act
79. The general principles relating to the scope and application of s 36(1) of the FOI Act were set out in paragraphs 35-36 above.
Section 42(1) of the FOI Act
80. A document will be an “exempt document” by virtue of s 42(1) of the FOI Act if it is “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. In order to determine whether a document falls within the ambit of s 42(1), the Tribunal should apply the common law test for determining the applicability of legal professional privilege: Re Sullivan and Department of Industry, Science and Technology (1997) 49 ALD 743 at 754.
81. That common law test was revised by the High Court of Australia in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. In that case it was held that the test is whether the relevant communication was made for the dominant purpose of providing or obtaining legal advice or providing or obtaining legal services including representation in legal proceedings. See also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552.
Document 1
82. Document 1 is an email from Dr R Bell to the Professional Services Review, dated 22 February 2001. In that email Dr Bell, a lawyer employed by Minter Ellison, Lawyers, provided advice regarding the form of a statement which was to be included in certain documents (which were not specified) prepared in connection with the processes of Professional Services Review Committees, in the light of the decision of the Federal Court of Australia in the Pradhan case.
83. The Tribunal is satisfied that Document 1 constitutes a communication which was made by Dr Bell for the dominant purpose of providing legal advice to the Professional Services Review, and that, accordingly, that document is “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”, within the meaning of s 42(1) of the FOI Act.
84. The applicant submitted, however, that, if legal professional privilege did attach to that document, that privilege had been waived by the Professional Services Review by reason of the following passage which appeared in the Director’s Report contained in the Professional Services Review Annual Report 2000-2001 (Exhibit A5):
“However, there are still some important matters before the Federal Court. A legal challenge to one of the first referrals following the amendments to the Scheme, effective from 1 August 1999, has caused considerable delay in processing referrals. On 25 January 2001 the Federal Court in Adelaide granted an interlocutory injunction to Dr J S Pradhan restraining a PSR Committee from proceeding with its hearing on his referral which had been scheduled for early February 2001.
As a result of this Federal Court action, Senior Counsel engaged by the PSR advised that PSR Committee consideration of eight other similar adjudicative referrals should be suspended pending resolution of legal issues in the Pradhan case. The substantive Federal Court hearing in Pradhan commenced in May 2001 and is to continue in September. A fuller discussion of this case is included at pages 18-19 of this report. However, the case demonstrates that significant delays can occur in the PSR process when legal issues are raised.”
85. As regards the issue of waiver of legal professional privilege, the position at common law is that such privilege may be waived only by the person who is entitled to the benefit of it – that is, the client, not the lawyer: Mann v Carnell (1999) 201 CLR 1 at 13. Whether waiver of legal professional privilege attaching to a document by a client, however, will necessarily mean that that document is not an exempt document under s 42(1) of the FOI Act is a matter on which different views have been expressed by the Tribunal. In Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 12 ALD 251 the Tribunal (Jenkinson J) said (at 252):
“In my opinion the operation of s 42(1) is unaffected by any conduct which, in legal proceedings, would be regarded as having constituted waiver of legal professional privilege. The sub-section does not require that the document would be privileged from production, but that the document be ‘of such a nature that it would be privileged’. The criterion of exemption, so expressed, is in my opinion framed by reference to acts and events which precede or are contemporaneous with the making of the document: the nature of the document is determined by what occasioned, and by what went into, its making and is unaffected, in my opinion, by subsequent events of the kind which might constitute waiver of legal professional privilege.”
In Re Sullivan (above), however, the Tribunal (Senior Member PJ Bayne) expressed the view that, in determining the application of s 42(1) of the FOI Act, it is relevant to address the issue of waiver of legal professional privilege. The Tribunal continued (at 756):
“It is hard to see any policy which would justify reading s 42 in a contrary way. This exemption is designed to ensure that the Act is not a vehicle for causing the disclosure of matter which is of such a nature that the relevant client might make a successful claim of privilege in some other context. It has been said that ‘[T]he primary rationale for the privilege is to enhance the functioning of the adversarial system of litigation’ (Odgers S, Uniform Evidence Law (2nd ed, 1997) at 201) and see Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 480; 69 ALR 31 per Gibbs CJ. The FOI Act should not be used to undermine the workings of the adversarial system in this respect, but once the client has waived the privilege, s 42 has no purpose to serve.”
In Bennett v Chief Executive Officer of the Australian Customs Service (2003) 37 AAR 8 the Federal Court of Australia (Madgwick J) (at 16) preferred the view expressed in Re Sullivan. Although an appeal from Madgwick J’s judgment was allowed by the Full Court of the Federal Court of Australia – see Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 – the issue of the relevance of waiver of legal professional privilege to the operation of s 42(1) of the FOI Act was not considered and determined by the Full Court.
86. Because of the uncertainty attending this issue, the Tribunal will consider whether the Professional Services Review has waived legal professional privilege in relation to Document 1 (as submitted by the applicant).
87. In Mann v Carnell (above) the majority of the High Court said (at 13):
“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality; not some overriding principle of fairness operating at large.”
In Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 the Full Federal Court held that, for the purpose of determining whether there has been a waiver of legal professional privilege attaching to legal advice:
·a distinction should not be drawn between the conclusion expressed in the legal advice and the reasons for that conclusion;
·the voluntary disclosure of the gist or conclusion of the legal advice constitutes waiver in respect of the whole advice, including the reasons for the conclusion.
88. In the Tribunal’s opinion, having regard to the abovementioned principles, the Professional Services Review did not impliedly waive the legal professional privilege attaching to Document 1 by publishing in its 2000-2001 Annual Report the passage quoted in paragraph 84 above, for the following reasons:
·although the above-quoted passage in the Annual Report and the legal advice contained in Document 1 relate to the same general matter, and their contents are consistent in that respect, the passage in the Annual Report does not refer specifically to the legal advice contained in Document 1;
·the passage in the Annual Report refers to the author of the relevant legal advice as “Senior Counsel engaged by the PSR”, whereas the author of Document 1 is Dr Bell, who at the relevant time, was a solicitor employed by Minter Ellison, Lawyers, and (the Tribunal understands) not a barrister who had been appointed as a Senior Counsel;
·the contents of Document 1 extend beyond the legal advice regarding the suspension of the operations of Professional Services Review Committees pending resolution of legal issues in the Pradhan case which was referred to in the passage in the Annual report.
89. In the Tribunal’s opinion, the publication by the Professional Services Review of the above-quoted passage in its 2000-2001 Annual Report was not inconsistent with the maintenance of the confidentiality of Document 1, and did not constitute waiver of the legal professional privilege attaching to that document.
90. Accordingly, the Tribunal finds that Document 1 is an “exempt document” by virtue of s 42(1) of the FOI Act.
91. Having regard to that finding, it is unnecessary for the Tribunal to consider whether Document 1 is an “exempt document” by virtue of s 36(1) of the FOI Act.
Documents 10, 11 and 12
92. Documents 10, 11 and 12 are identical in terms to, respectively, Documents 68, 85 and 91 in Application No W2005/309 (see paragraphs 52, 63 and 67 above). The only difference between Documents 10, 11 and 12 and Documents 68, 85 and 91 is that the former documents comprise double-sided typed pages, whereas the latter documents comprise single-sided typed pages.
93. The Tribunal has found that each of Documents 68, 85 and 91 is an “exempt document” by virtue of s 36(1) of the FOI Act (see paragraphs 55, 66 and 70 above).
94. Accordingly, the Tribunal finds that each of Documents 10, 11 and 12 is also an “exempt document” by virtue of s 36(1) of the FOI Act.
95. Having regard to that finding, it is unnecessary for the Tribunal to consider whether each of Documents 10, 11 and 12 is an “exempt document” by virtue of s 42(1) of the FOI Act. The Tribunal would add, however, that, were it necessary for it to do so, it would have no difficulty in finding that each of Documents 10, 11 and 12 is an “exempt document” by virtue of s 42(1) of the FOI Act.
Decision
96. For the above reasons each of the decisions under review is affirmed.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .........[Sgd S da Motta]............................
AssociateDate/s of Hearing 12 May 2006
Date of Last Submissions 5 June 2006
Date of Decision 30 October 2006
Counsel for the Applicant Mr M Rynne
Solicitor for the Applicant Summerslegal
Counsel for the Respondent Mr J Allanson
Solicitor for the Respondent Minter Ellison
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