Saleam -v- Director General, Department of Community Services and Ors

[2002] NSWADTAP 30

Appeal Panel

CITATION:	Saleam -v- Director General, Department of Community Services and ors [2002] NSWADTAP 30
PARTIES:	APPELLANT James Saleam 1. RESPONDENT Director General, Department of Community Services 2. RESPONDENT Premier (as Minister Administering the Freedom of Information Act 1989) 3. RESPONDENT BZ
FILE NUMBER:	029016
HEARING DATES:	05/08/02
SUBMISSIONS CLOSED:	08/05/2002
DATE OF DECISION:	08/30/2002
DECISION UNDER APPEAL:	Saleam -v- Director General, Department of Community Services and ors [2002] NSW ADT 41
BEFORE:	Hennessy N (Deputy President); Britton A - Judicial Member; Bolt M - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003145
DATE OF DECISION UNDER APPEAL:	03/25/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Freedom of Information Act 1989
CASES CITED:	Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Re Green and Australian and Overseas Telecommunications Commission (1992) 28 ALD 655 Saleam -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 Lovelock and Queensland Health Department [2001] QICmr 2
REPRESENTATION:	APPELLANT In person 1. RESPONDENT D Hewitson, solicitor 2. RESPONDENT No appearance
ORDERS:	Appeal dismissed.

Introduction

1 This is an appeal against a decision made by the Tribunal affirming the decision of the Director General, Department of Community Services (the agency) not to grant Mr Saleam access to 151 documents which he had requested under the Freedom of Information Act 1989 (FOI Act).

Jurisdiction

2 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Mr Saleam applied to the Tribunal for the appeal to be extended to a review of the merits of the Tribunal's decision. That application is dealt with at the end of these reasons.

3 The agency submitted that as a threshold question the Appeal Panel must be satisfied that the appeal raises questions of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. The approach that the Tribunal has consistently adopted in relation to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.
4 We have adopted this approach in the present case.

Motivation for FOI application

5 Mr Saleam told the Appeal Panel that his primary motivation in seeking access to the disputed documents was to have a number of past convictions overturned through an application to the Supreme Court under s 474D and E of the Crimes Act 1900. Section 474D of the Crimes Act 1900 states that:

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

6 Section 474E(2) and (3) state that:
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the repealed provisions, and


(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (Emphasis added.)
7 In relation to s 474E(3)(b) Mr Saleam wanted to use the documents he had requested, and more particularly any comments or recommendations a Tribunal member may have made, to support his submission to the Supreme Court that there are “special facts or special circumstances that justify the taking of further action.” Mr Saleam’s purpose was to uncover information which may demonstrate that evidence given by Mrs BZ in criminal proceedings concerning Mr Saleam was unreliable, that she had lied and that she may have had a motive to fabricate her evidence.

8 Mr Saleam’s application related to documents which refer to:

(i) the alleged Spanish nationality of BZ;

(ii) the mental health of BZ;

(iii) the paternity of three children C1, C2 and C3, specifically whether the first two are fathered by man 'a' and the third by man 'b', or whether only the first is man 'a' and the other two by 'b'; 'a' is M1; 'b' M2 whether named or not;

(iv) the given age of BZ on any document;

(v) any document which refers to me and a legal proceeding in which BZ was a witness against me; and

(vi) any document which on its face adversely affects the credit or credibility of a person (BZ) if it was called upon in a legal proceeding (i.e. evidence of criminal, improper or immoral - perverse conduct).

Tribunal’s decision

9 The Tribunal affirmed the agency’s decision not to release any of the documents requested by Mr Saleam. The Tribunal concluded that all the disputed documents were exempt in accordance with Clause 6 to Schedule 1 of the FOI Act relating to personal affairs. That provision states that:

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

10 In relation to certain documents sought, namely four Intake Reports, the Tribunal was also satisfied that the exemptions in Clause 4(1)(b) (law enforcement); Clause 12(1) (secrecy); and Clause 13(b) (confidential material), applied.

Premier’s submissions

11 The Premier did not wish to be heard in relation to the substance of the appeal, but filed written submissions in relation to the meaning of s 57 and the existence of any overriding discretion to release documents under s 25 of the FOI Act. As neither of these matters was raised by the appellant, we have not dealt with them in this decision.

Grounds of Appeal

12 In his oral submissions to the Tribunal, Mr Saleam set out the crux of his appeal. He submitted that the Tribunal should have admitted into evidence a draft document which he says he intends to file in the Supreme Court in support of his application under s 474D of the Crimes Act 1900. He says that after admitting this document into evidence, the Tribunal should then have decided whether any of the material in the disputed documents might lead to a Supreme Court judge having a “sense of disquiet” about his convictions. Mr Saleam then submitted that even if the Tribunal decided that the material should not have been released to him, it should have issued “some form of certificate in respect of the exempt matter” so that a Justice of the Supreme Court would call for the documents when considering his application under the Crimes Act 1900.

13 In our view, this ground of appeal is fundamentally misconceived for several reasons. Mr Saleam was not seriously challenging the Tribunal’s decision not to release the documents. He would have been satisfied with a qualified release of the documents to the Supreme Court. The Tribunal has power to affirm, vary or set aside the agency’s decision to refuse access to the documents. (See s 63 of ADT Act.) It does not have the power to release documents exclusively to a third party.

14 After dealing comprehensively with relevant authorities, the Tribunal agreed with the approach adopted by the Administrative Appeals Tribunal in Re Green and Australian and Overseas Telecommunications Commission (1992) 28 ALD 655. The Tribunal concluded at [46] and [47], that:

Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 is invoked. . .

In the present case, consideration of the applicant’s purpose would require the agency and the Tribunal (on review) to engage in an elaborate collateral inquiry before it could form any considered view on the reasonableness or otherwise of the applicant’s claim that his conviction and sentence in 1988 may have been tainted because of the non-availability of information relevant to Mrs BZ’s mental health. (Emphasis added.)

15 Mr Saleam submitted that examining the documents in dispute in order to form a view about the strength of his intended Supreme Court proceedings would not involve the Tribunal in “an elaborate collateral inquiry”. By focusing on this phrase, Mr Saleam has missed the fundamental point on which the Tribunal based its conclusion. That point was that the motive of the applicant is ordinarily not relevant to the assessment of reasonableness under Clause 6 to Schedule 1 of the FOI Act. Mr Saleam did not challenge this aspect of the Tribunal’s decision. Even if he had, we find that no error is disclosed.

16 Mr Saleam submitted that the Tribunal made an error of law by not examining the strength of his intended Supreme Court case and by not commenting in its decision, on the strength of that case. Mr Saleam could not point to any duty on the part of the Tribunal, other than a supposed moral duty, to examine the strength of his proposed Supreme Court case and comment on it. In our view the Tribunal correctly applied the law in relation to the exemption for personal affairs in Clause 6 to Schedule 1. This ground of appeal is dismissed.

17 All the other grounds of appeal can be dealt with shortly because they involve no question of law.

18 Mr Saleam’s next ground of appeal was that the Tribunal did not apply the law relating to s 474 D and E of the Crimes Act 1900. This Tribunal has no jurisdiction to make any findings in relation to an application under the Crimes Act 1900. This ground of appeal is dismissed.

19 Mr Saleam submitted that the Tribunal denied him procedural fairness. Many of the matters listed under this heading do not allege breaches of procedural fairness. One relates to the refusal of the Tribunal to admit into evidence the draft application Mr Saleam told us he intends to file in the Supreme Court in relation to his application under s 474E of the Crimes Act 1990.

20 Under s 73 of the ADT Act, the Tribunal “is not bound by the rules of evidence.” The Tribunal is, however, bound to provide procedural fairness. Given the issues that the Tribunal had to determine under the FOI Act, there was no procedural unfairness to Mr Saleam in not admitting the draft application into evidence.

21 Mr Saleam also pointed to a different approach taken by the Tribunal in a case where the Commissioner of Police was the respondent. (Saleam -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 40) In that case the Tribunal admitted Mr Saleam’s draft s 474E application into evidence and examined the disputed documents in the light of Mr Saleam’s intended application to the Supreme Court. In that case the Tribunal commented, by way of comfort to Mr Saleam, that “I do not believe there are any documents that would assist him in his proposed Supreme Court criminal inquiry application.”

22 It does not follow that because the Tribunal, as constituted in respect of one matter, admitted certain evidence and came to a conclusion on a non-essential issue, that a differently constituted Tribunal has fallen into error by not adopting the same approach.

23 Mr Saleam submitted that the Tribunal failed to apply the “rationale and facts” in other cases involving him such as R v Saleam (1989) 16 NSWLR 14. Those matters are unrelated to any issue in dispute in Mr Saleam’s FOI application and consequently there is no error of law in not applying them in the present case.

24 Mrs BZ was a party to the hearing before the Tribunal and the Appeal Panel. She objected to any documents containing personal information about herself or her children being released to Mr Saleam. Mr Saleam submitted that the Tribunal “failed to apply correctly information provided orally and in submissions” from Mrs BZ. These matters dealt with factual matters, the credit of witnesses or the acceptance or rejection of submissions made by other parties. None raises a question of law.

25 Mr Saleam submitted that the Tribunal misapplied the decision in Lovelock and Queensland Health Department [2001] QICmr 2. According to Mr Saleam, that decision “encouraged the position that some inquiry into the material in the files and its relevance to a criminal trial that resulted in conviction, was necessary. Further, the decision supported the position that the Tribunal should weigh the competing public interests in favour of determining whether the material would assist in overturning criminal convictions.”

26 The Tribunal did not fail to take into account the public interest in Mr Saleam having access to the documents when determining whether disclosure was “unreasonable” under Clause 6 of Schedule 1. The Tribunal took these matters into account but did not consider that they outweighed the interests of the third parties in keeping their personal affairs confidential. The Tribunal said, at [55] that:

. . . this (the possibility that the documents may help him to overturn his conviction) is not a sufficient basis for allowing a person to be given access to child protection files with the result that the information can be used by the access applicant as he or she sees fit.
27 Mr Saleam alleged that the Tribunal “failed to consider the documents individually.” The Tribunal said at [56], “I have examined all the documents.” In light of this comment, any ground of appeal based on a premise that the documents were not individually considered must fail.

28 Mr Saleam submitted that President O’Connor, “should have excused himself from the conduct of this case on the basis of apprehended bias by the applicant.” Mr Saleam told the Appeal Panel that he had not raised this issue before the Tribunal because he had not realised that President O’Connor was formerly the Privacy Commissioner with the Human Rights and Equal Opportunity Commission. Had he known at the time of the hearing that President O’Connor had held that position, he would have applied for him to disqualify himself on the ground of apprehended bias. The alleged ground for the bias was that President O’Connor had been a member of the Human Rights and Equal Opportunity Commission when it published a report which referred to Mr Saleam.

29 In our view no reasonable bystander could entertain an apprehension of bias on the part of the Tribunal arising out of the circumstances outlined by Mr Saleam.

Extension to the merits

30 As no error of law has been identified, the Tribunal does not grant leave to extend the appeal to the merits of the decision.

Costs

31 In this case no application for costs was made by the agency, however Mr Saleam should understand that he is at risk of having an order for costs made against him on the Tribunal’s own motion, if not on the application of another party, if he continues to prosecute unmeritorious appeals.

Order

32 Appeal dismissed.