The Joint Coal Board v Robert Cameron

JUDGMENT No.

0 0 e e k i i k # 6 e ~

.;i.kjw

CATCHWORDS

ADMINISTRATIVE LAW - Freedom of Information Act - Appeal

from Administrative Appeals Tribunal - Joint Coal Board - would involve a breach of confidence.

whether a joint Commonwealth and New South Wales authority

was established "by, or in accordance with, [a Commonwealth]

enactment" so as to be subject to the Freedom of Information

~ c t - discussion of legislative scheme which established the

Administrative Appeals Tribunal Act 1975 (Cth) - s.44

Archives Act 1983 (Cth)

Audit Act 1901 (Cth) - s.26

Coal Industry Act 1946 (Cth) - ss.5, 6, 13, 14, 16, Sch. 1

Coal Industry Act 1946 (NSW) - ss. 5, 10, 13

Freedom of Information Act 1982 (Cth) - ss. 4, 45

Ombudsman Act 1976 (Cth)

Public Accounts Committee Act 1951 (Cth)

Public Works Committee Act 1969 (Cth)

THE JOINT COAL BOARD v. ROBERT CAMERON

No. G1424 of 1988

Davies, Beaumont & Pincus JJ.

26 October 1989

Sydney

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G1424 of 1988

GENERAL

DIVISION

eal from the General

?F=-

A mlnlstrative Division of the

Administrative Appeals Tribunal

BETWEEN:

THE JOINT COAL BOARD

Applicant

AND :

ROBERT CAMERON

Respondent

CORAM :

Davies, Beaumont & Pincus JJ.

DATE

26 October 1989

PLACE :

Sydney

MINUTES OF ORDER

THE COURT ORDERS:

1. That the appeal be dismissed with costs.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G1424 of 1988

GENERAL

DIVISION

eal from the General

%F-

A ministrative Division of the

Administrative Appeals Tribunal

BETWEEN:

THE JOINT COAL BOARD

Applicant

AND :

ROBERT CAMERON

Respondent

CORAM :	Davies, Beaumont & Pincus JJ.
DATE :	26 october 1989
PLACE :	Sydney

REASONS FOR JUDGMENT

Davies J,:

This is an appeal from a decision of the

Administrative Appeals Tribunal ("the Tribunalqq)

which held,

F01 Act. As the appeal is brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), it is limited to a question of law.

inter alia, that the applicant, the Joint Coal Board ("the form for workersr compensation completed by the respondent, Robert Cameron, in the possession of the Board was not an exempt document under s.45 of the

Board") was subject to the provisions of the Freedom of

On the first aspect of the Tribunal's decision,

counsel for the Board submitted that the Board was set up jointly by the Commonwealth and by New South wales by the Coal Industry Act 1946 (Cth) ("the Commonwealth Act") and the Coal Industry Act 1946 (NSW) ("the State Act"). Counsel

submitted that the Board, having been established jointly,

did not satisfy the description of the definition of

"prescribed authority" in s.4(1) of the F01 Act in that it

was not established "by, or in accordance with the

provisions of, an enactment", that is to say an Act of the

Commonwealth Parliament. Counsel submitted that the Board

was established by or in accordance with joint Acts of the

Commonwealth and of New South Wales and was a joint

authority of the Commonwealth of Australia and of the State

of New South Wales or, alternatively, if it was an authority

of the Commonwealth of Australia, it was also an authority

of the State of New South Wales.

Without doubt, the Board is a joint Commonwealth and New South Wales authority. In Re Cram and Others; Ex parte N.S.W. Colliery Proprietorsf Association Limited and

Others (1987) 163 C.L.R. 117 at p.126, Mason C.J., Wilson,

Brennan, Deane, Dawson, Toohey and Gaudron JJ. said:-

"The Coal Industry Act 1946 (Cth) ("the

Commonwealth Actu) and the Coal Industry Act

1946 (N.S.W.) ("the State Act") were enacted

following an agreement made between the

Governments of the Commonwealth and of New

South Wales as recorded in the preamble to the

Commonwealth Act, that they should l . . , jointly establish authorities vested with power to take action designed to attain [certain] objectivesf. The objectives recorded in the preamble include:

.. securing and maintaining

adequate supplies of coal to meet

the need for that commodity

throughout Australia and in trade

with other countries, and for

providing for the regulation and

improvement of the coal industry in

the State of New South Wales ...l

The authorities jointly established by the of the State Act) and Local Coal Authorities:

Commonwealth and State Acts are the Joint Coal

Board (s.5 of the Commonwealth Act; s.5 of the

State Act), the Coal Industry Tribunal ("the

s.37 of the Commonwealth Act; s.43 of the

State Act.''

At p.127, their Honours said, as to the Coal Industry similarly set up by the ~cts:-

"The Tribunal and the Local Coal

Authorities derive their existence from

the Commonwealth Act and from the State

Act. They are, in short, joint

Commonwealth and State authorities."

In -	R. v. Lydon; Ex parte Cessnock Collieries Ltd (1960) 103

C.L.R.

15 at p . 1 9 , Dixon C.J., McTiernan, Fullagar, Kitto,

Menzies and Windeyer JJ. explained the operation of the two

Acts as being that of concurrent legislation by the

Parliaments under agreement.

The Commonwealth Act and the State Act each in

terms established the Board. The Commonwealth Act by s.5

provided inter a1ia:-

It(1) The Governor-General may enter into an

arrangement with the Governor of the State for

the constitution, subject to this Act, of an

authority which shall be known as the Joint

Coal Board.

(2) The Board constituted in pursuance of the

arrangement shall consist of a Chairman and

two other members."

The State Act was in identical terms save that s.5(1) provided that the Governor may enter into an arrangement with the Governor-General of the Commonwealth. Section 13 of the Commonwealth Act provided:-

"(l) In pursuance of agreement between the

Government of the Commonwealth and of the

State it is declared that the Board is to have

all the powers and functions specified in this

Act in relation to the Board.

(2)Subject to the Constitution, those powers

and functions are by this sub-section, and not

otherwise, vested in the Board to the extent

to which they are not in excess of the

legislative power of the Comm~nwealth.~

The mirror image of this provision appeared in s.10 of the New South Wales Act. Each Act therefore conferred powers and functions upon the Board to the extent to which they were not in excess of the legislative authority of the

, enacting Parliament. As their Honours said in R. v. Lydon;

Ex parte Cessnock Collieries Ltd, cited above, at p.20:-

"By this ingenious legislative device the best

is done to give powers expressed almost in

identical terms and conferred by the two

respective Parliaments a combined operation so

that they will operate according to the

constitutional validity which each respective

Parliament was able to give to them."

The effect was that the Commonwealth Act

established the Board, constituted in pursuance of an

arrangement between the Governor-General and the Governor,

as a body corporate having the attributes, functions and

powers specified in the Act, to the extent to which those

powers and functions were not in excess of the legislative

power of the Commonwealth. The State Act did likewise to

the extent of the legislative powers of the State.

As it was not in excess of the legislative power of

the Commonwealth under s.51(i), (xxxv) and (xxxix) of the status upon it, the Board was established by or in accordance with the Commonwealth Act. As the Court said in Re Cram, cited above, with respect to the Coal Industry

Tribunal and the Local Coal ~uthorities,

at p.128:-

"... the authorities derive their existence

from the Commonwealth Act, although not

exclusively so,"

The fact that the State of New South Wales also established the Board consistent with its legislative power does not diminish the point.

The Board was not established as a joint authority

in the sense that the joint authority of two Parliaments was

necessary to establish it as a corporation and as a

government authority. Each Parliament could do that and did

so to the extent of relevant legislative power.

BY this "ingenious legislative device", the Board

was constituted by or in accordance with the Commonwealth ~ c t and was also constituted by or in accordance with the State Act. Whether the word "by" or the words "in

accordance with" is the more appropriate term need not

concern us; but I note that, in R. v. Duncan and Others; EX

parte Australian Iron and Steel Pty Limited (1983) 158

C.L.R. 535 at p.553, Gibbs C.J. commented that:-

"The Tribunal is constituted by the statutes,

rather than by the arrangement between the

Governor-General and the G~vernor.~'

As the Board was established by or in accordance

with the provisions of the Commonwealth Act, it follows that the Board is described by that expression as used in several Acts of the Commonwealth Parliament dealing with matters of

administration. See the Audit Act 1901 (Cth), Public

Accounts Committee Act 1951 (Cth), the Public Works

Committee Act 1969 (Cth), the Ombudsman Act 1976 (Cth), the

Archives Act 1983 (Cth) and the F01 Act.

I need not discuss

the provisions of the Audit Act for by s.26 of the

Commonwealth Act and s.34 of the State Act the Commonwealth

Auditor-General is appointed as the authority to audit the

financeq of the Board. The next two mentioned Acts

specifically avoid the problem of Commonwealth involvement

in the administration of the Board. The Public Accounts

Committee Act and the Public Works Committee Act

exclude from their operation an "inter-governmental body"

being "a body corporate or an unincorporated body

established by, or in accordance with the provisions of, an other agency established jointly or administered jointly by the Commonwealth and one or more States. The section provides for the delegation of powers by the Commonwealth Ombudsman to a State Ombudsman or by a State Ombudsman to the Commonwealth Ombudsman for the purposes of the section. However, the Archives Act and the F01 Act contain no such special provision.

agreement between the Commonwealth and the State or States

or between the Commonwealth and the government of another

country or the government of other countries". Section 8A

of the Ombudsman Act deals with the problem by empowering

the Commonwealth Ombudsman to make an arrangement with the

Ombudsman of a State for or in relation to the investigation

by any one or more of the Commonwealth and State Ombudsmen

of action taken by a prescribed authority of the

No inference arises from the Commonwealth Act that

an enactment such as the F01 Act should not apply to the and subject to Commonwealth power. Nor can any inference be drawn from the many provisions of the F01 Act that that Act does not apply to a Commonwealth authority which is also an authority of a State Government. The relevant test is contained in the definition of "prescribed authority".

It follows that the Board, being established by or in accordance with the Commonwealth Act is a prescribed

authority for the purposes of the F 0 1 Act.

The second issue ventilated in the appeal is

whether or not a claim form for Workers' Compensation, which

was completed by the respondent and handed by him to his

colliery employer and by the employer to the Board, was an

exempt document under s.45 of the F01 Act which exempts

documents whose disclosure under that Act would constitute a

breach of confidence.

The Commonwealth Act, by s.16, and the State Act,

by s.13, provide that the Board may perform the function of

a workerst Compensation insurer. Section 16 of the

Commonwealth Act provides:-

"The Board is to have power to establish

workersr compensation insurance schemes and to

require any employer in the coal industry in

the State to effect with or through the Board

all workers' compensation insurance with

respect of his employees in that industry."

In the exercise of this power, the Board became a licensed insurer for the purpose of the Workerst Compensation

, legislation of New South Wales and workersf compensation of

employees of collieries in New South Wales has been effected

in accordance with that legislation.

There was evidence before the Tribunal that

colliery employers and the Board consider that all

documentation forwarded by an employer to the Board in

respect of a Workersr Compensation claim, including the

claim form completed by the employee, is confidential to the

employer and the Board. This evidence, however, lacks

substance and the Tribunal rejected the view that disclosure

of the claim form to the respondent would constitute a

breach of any duty of confidence reposed in the Board in

favour of the employer. The conclusion of the Tribunal was

open to it. I would myself have come to the same view.

I would add to the reasons of the Tribunal that the

Board is not in the position of an ordinary workersf

Compensation insurer. It does not have a relationship

between itself and collieries based solely upon the

contractual relationship of insurer and insured. Section 13

of the Commonwealth Act and s.11 of the State Act make it a

function of the Board to promote the welfare of workers in

the coal industry including to make provision for the health

and safety and for the training, efficiency and competency

of persons in the industry.

The employer understood or should have understood

that the Board might use any information communicated to it

as it saw fit, having regard to the functions conferred upon

it by the Commonwealth and the State Acts. The disclosure

to the respondent of his claim form, if the Board so chose,

would be within those functions.

In the circumstances, I would dismiss the appeal

with costs.

certify that this and the 9

eceding pages are a true copy of

e Reasons for Judgment herein of

the Honourable Mr Justice Davies.

Associate:

Date: 26 October 1989

Counsel for the applicant:	Mr J.J. Spigelman QC and Dr G. Flick
Solicitors for the applicant:	Sparke, Helmore & Withycombe
Counsel for the respondent:	Mr F.J. Purnell
Solicitors for the respondent:	Maguire & McInerney
Date of hearing:	3 October 1989

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

No. G1424 of 1988

GENERAL DIVISION

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :

THE JOINT COAL BOARD

Applicant

AND :

ROBERT CAMERON

Respondent

CORAM: Davies, Beaumont and Pincus JJ.

DATED: 26 October 1989

REASONS FOR JUDGMENT

BEAUMONT AND PINCUS JJ. The applicant, The Joint Coal Board ("the Board"), appeals, on a question of law, from a decision of the Administrative Appeals Tribunal ("the Tribunal") under the Freedom of Information Act 1981 ("the F01 Act1') in the following circumstances.

The general background

By letters dated 11 March and 8 April 1988, solicitors acting for Robert Cameron, the respondent, informed the Board of a claim to be made by the respondent in respect of injuries alleged to have been suffered by the respondent during the course of his employment at Nattai North Colliery between 1981 and 1987. The respondent was employed at the colliery by Clutha Developments Pty. Limited. The Board then insured Clutha in respect of claims made by employees at common law or under the

workersf Compensation Act 1926 (N.S.W.). The solicitors also requested, pursuant to the F01 Act, copies of all accident report forms completed or signed by the respondent. In its reply dated

10 May 1988, the Board stated that, because it was not subject to

the provisions of the F01 Act, the request for access to the

documents was refused.

The respondent sought review of the Board's decision by the Tribunal. At the hearing, the Tribunal was informed by the respondent's legal representatives that access was sought to 33 documents described in each case as "claim form for compensation completed by insured worker".

Before the Tribunal, it was argued, on behalf of the Board, first, that the F01 Act did not apply to it at all; and, secondly, that disclosure of the material sought would involve a breach of confidence so that the documents were exempt material under s.45 of the F01 Act. The Tribunal decided that the Board, including its Insurance Division, was subject to the provisions of the F01 Act. The Tribunal also set aside the Board's decision, ruling that the documents described as "claim form for compensation completed by injured worker" were not exempt as claimed by the Board.	l
The Board's claim, as put to the Tribunal, that the F01 Act did not apply to it
Before the Tribunal, it was common ground that the F01 Act can apply to the Board only if it is an "agency" within the meaning of the F01 Act. An "agency" is defined, by s.4(1), to mean a Department or a "prescribed authority". So far as

material, "prescribed authority" is defined, by s.4(1), to mean, inter alia, "a body corporate ... established for a public purpose by, or in accordance with the provisions of, an enactment.. ." (Emphasis added) "~nactment" is defined to mean, inter alia, an Act.

~t was submitted to the Tribunal, on behalf of the Board, that the F01 Act did not apply to it because it was not a "prescribed authoritytt. It was accepted, on behalf of the Board, that it was established for a "public purposeI1 within the meaning of the statute. However, it was contended, on behalf of the Board, that the Board was not "established by, ... or in accordance with, [a Commonwealth] enactment," for the following reasons: (a) the documents sought were exclusively within the possession of the Insurance Division of the Board as established under N.S.W.

legislation; (b) that Division (i) was staffed exclusively by State employees; (ii) was licensed exclusively by reference to State legislation; (iii) performed no Commonwealth functions; (iv) was funded exclusively from its own finances.

In order to understand the Board's submission, it is necessary to refer to the legislative scheme.

The legislative scheme

The Coal Industry Act 1946 ("the Commonwealth Act").

The long title to the Commonwealth Act describes it as an Act to provide means for securing and maintaining adequate supplies of coal throughout Australia and for providing for the regulation and improvement of the coal industry in the State of

New South Wales, ("the State") and for other purposes. In the preamble, it is recited that it had been agreed between the Governments of the Commonwealth and of the State that they should (i) take measures for securing and maintaining adequate supplies of coal to meet the need for that commodity throughout Australia and in trade with other countries, and for providing for the regulation and improvement of the coal industry in the State and for other matters relating to the production, supply and distribution of coal; (ii) jointly establish authorities vested with power to take action designed to attain those objectives; and (iii) take all practicable steps to secure the passage by the respective Parliaments of legislation within their constitutional powers for the establishment of such authorities.

Relevantly, the Act provides as follows: The

Governor-General may enter into an arrangement with the Governor of the State for the constitution of the Board (s.5(1)); the Board shall be a body corporate with perpetual succession (s.5(6)); the power and functions of the Board are to include the taking of such action as, in the opinion of the Board, is necessary or desirable, inter alia, to ensure the regular production of coal in the State and its economical use, and to promote the welfare of workers engaged in the coal industry in the State (s.14(1)); and the Board is to have power to establish workersf compensation insurance schemes and to require any employer in the coal industry in the State to effect with or through the Board all workersf compensation insurance in respect of his employees in that industry (s.16).

It will be recalled that reference is made in the preamble to the joint establishment of "authorities". Of immediate concern for our purposes is the Board. However, in Part V of the Commonwealth Act, which deals with industrial matters, provision is also made for the constitution of a Coal Industry Tribunal and of Local Coal Authorities.

Coal Industry Act 1946 (N.S.W.) ("the State Act")

The long title and preamble are in substantially the same terms as the Commonwealth Act. So far as presently material, the operative provisions of the State Act are similar to those of the Commonwealth Act.

The meaning,and constitutional validity of the Commonwealth-State legislative scheme

The purpose and effect, and constitutional validity, of the Commonwealth-State legislative scheme has been considered by the High Court in two recent cases.

The Queen v. Duncan; Ex parte Australian Iron and Steel Pty.

Ltd. (19g3) 158 C.L.R. 535

In holding that the Coal Industry Tribunal was validly

constituted, Gibbs C.J., Mason, Murphy, Wilson, Deane and Dawson

JJ. held that, although the Constitution effects a division of

power between the Commonwealth and the States, it does not forbid them from exercising their respective powers in such a way that each is complementary to the other; that the Commonwealth and the States may, by co-operative action, simultaneously confer powers on one person and empower that person to exercise any or all of them alone or in conjunction; and that Commonwealth

legislation otherwise within power is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth.

Gibbs C.J., with whom Murphy J. agreed "generally" (at p.566) and Wilson and Dawson JJ. agreed "substantiallyn (at p.567) said, (at p.553):

"the intention of the two legislatures was to constitute one Tribunal whose authority depended on the combined exercise of Commonwealth and State powers. The Tribunal is constituted by the statutes, rather than by the arrangement between the Governor-General and the Governor. The terms of the arrangement can have nothing to say as to the powers of the Tribunal, since, once an arrangement is made, and a person has been appointed to constitute the Tribunal, the powers and functions of the Tribunal will depend entirely on the provisions of the statutes. I incline to the view that the Tribunal, once constituted, can exercise any of the powers validly conferred on it either by the Commonwealth or by the State Act. In other words, it can exercise both Commonwealth and

State powers in the one case."

(Emphasis added)

Brennan J. held that it is within the legislative competence of the Commonwealth to permit a tribunal established by Commonwealth law to exercise State power where that is consistent with the achievement of the object which the exercise of federal power is intended to achieve.

Re Cram; Ex parte N.S.W. Colliery Proprietorsf Association

Limited (1987) 163 C.L.R. 117

It was held by Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. that the Coal Industry Tribunal and the Local Coal Authorities were not required to exercise powers derived from the State Act in isolation from powers

derived from the Commonwealth Act. The Court also held, applying Duncants Case, that the joint operation of the Commonwealth and State ~ c t s created a single tribunal rather than separate Commonwealth and State tribunals; and that the persons who constituted the Tribunal and the Authorities were officers of the Commonwealth within the meaning of s.75(v) of the Constitution, and remained so notwithstanding that they exercised powers conferred by the State Act.

The Court said (at p.127):

"The Tribunal and the Local Coal Authorities derive their existence from the Commonwealth Act and from the State Act. They are, in short, joint Commonwealth and State authorities. Although they exercise powers conferred by Commonwealth and State laws, they stand 0utsid.e the category of State officers exercising particular Commonwealth functions, as e.g., judges of State courts exercising invested federal jurisdiction, who have been held not to be officers of the commonwealth in relation to the exercise of Commonwealth powers:"

The Court went on to say (at pp.128-9):

"Given then that the authorities derive their existence from the commonwealth ~ c t , although not exclusively so, and that the Commonwealth Act either confers or authorizes the conferral on the authorities of all or any of their powers and functions, the persons constituting the authorities are necessarily officers of the Commonwealth and remain so in respect of the exercise of all their powers unless, perhaps, the Commonwealth Act evinces an intention that in the exercise of powers derived from the State Act the authorities function in some different capacity. The Commonwealth Act has no ~rovision similar to s.5 of the National Companies and iecurities Commission Act 1979 I ~ t h ) which provides that in the performance of a function or the exercise of a power-under an Act the Commission represents the crown in right of the Commonwealth, but that nothing is to prevent a State Act providing that, in the performance of a function or the excercise of a power under a State Act, the Commission is to represent the Crown in right of the State...It is unnecessary to consider the effect of

such a provision or like implication from a Commonwealth Act in this case for we are satisfied that no like implication can be drawn from the Coal Industry ~ c t (Cth). Such an implication, it seems to us, could 5 y be drawn if, either, the Commonwealth Act evinces an intention that the powers conferred by the State Act are to be exercised in isolation from the powers conferred by the Commonwealth Act, or there are separate Commonwealth and State Tribunals and Local Coal Authorities, rather than a joint Tribunal and unified joint authorities." (Emphasis added.)

The Tribunal's reasons for rejecting the Board's claim that it was not bound by the FOI ~ c t

The Tribunal, saying that it could "find no foundation for the proposition that the activities of the [Board's] Insurance Division are carried on other than as part of the functions of the [Board]", rejected the argument that the Insurance Division was separate from the Board and thus not an "agency" as defined in s.4(1). The Tribunal rejected an alternative submission, then apparently put on behalf of the Board, but not now pressed, that the Commonwealth Act was beyond power. The Tribunal said, correctly, that the question of constitutional validity of the legislative scheme was settled by Duncanfs Case.

The submission put on this appeal on behalf of the Board that it was not bound by the F01 Act

In this Court, a rather different argument, one of statutory construction only, was advanced on behalf of the Board as follows: (1) The Board is constituted a body corporate under each of ss.5(6) of the State Act and ss.5(6) of the Commonwealth Act. (2) The documents came into the possession of the Board pursuant to State legislation, i.e. the Workers Compensation Act. (3) The State Act does not expressly or impliedly authorise the

single joint body created by co-operation of the two levels of government to be subject to powers or obligations unilaterally imposed by the Commonwealth (see Cram's Case at p.128). (4) The Commonwealth Act also operates on the assumption that the single corporate entity jointly created will have powers and be subject to obligations jointly imposed. (5) A subsequent Commonwealth ~ c t of general appliction will not be construed so as to unilaterally impose obligations on the joint authority. (6) Accordingly where the F01 Act defines "prescribed Authority" to mean "a body corporate ... established by ... an enactment" it should be construed to mean "a body corporate ... established only by an enactment". (7) This construction is reinforced by the objects of the legislation in s.3(1) of the F01 Act. It is only if the body corporate is exclusively created by Commonwealth legislation that it can be said that the information was "in the possession of the Government of the Commonwealth".

Is the Board an "agency" for the purposes of the F01 Act?	l
The Board will be a "prescribed authorityu, and thus an "agency", for present purposes, if it is "established by, or in	1
accordance with the provisions of, [the Commonwealth A c t " ] .	l
It will be recalled that, in Duncants Case, it was said that the Tribunal was "constituted by the statutes, rather than
by the arrangement between the Governor-General and the
Governort'. (Although the High Court did not there need to	l
consider the position of the Board, there is no reason to suppose	l

that it stood differently from the Tribunal in this respect.)

will also be remembered that this reasoning in Duncan's Case was

affirmed in Cram's Case; and that it was also held in Cram's Case that both the Tribunal and Local Coal Authorities "derive their existence from the Commonwealth Act, although not exclusively so"; and, further, that the persons constituting the authorities are necessarily officers of the Commonwealth in respect of the exercise of all their powers.

In our opinion, it follows from the reasoning process of the High Court that the Board was established by the Commonwealth ~ c t ; and that, if it be necessary to decide the point, the Board was also established in accordance with the provisions of that Act.

It, is true that the Board was not exclusively so established. But it does not follow that the Board was not established by, or in accordance with the provisions of, the Commonwealth legislation. There is no express statemdnt in the F01 Act to the effect that, in order to qualify as a "prescribed authority", the body concerned must be exclusively established by, or in accordance with the provisions of, the federal statute. The real question for present purposes is whether there is anything in the statutory context to justify an implication that the Commonwealth legislative source must be the exclusive source and the F01 Act read down accordingly.

In our opinion, there is no basis, in the context of the F01 Act, or otherwise, for making such an implication. No reason, of logic or of policy, exists to indicate that a joint corporate enterprise deriving its existence from both federal and

state legislative sources was intended to £.all outside the scope of the F01 Act. On the contrary, the circumstances that the bringing of that single body into existence was a matter of legitimate concern for the Commonwealth and fell within federal legislative power suggest that it would be wrong to read down the statutory definition of "prescribed authority" so as to exclude a body established by, or in accordance with, the provisions of a Federal Act, although not exclusively so (cf. Colonial Sugar Refining Co. Ltd. v. Dilley (1967) 116 C.L.R. 4 4 5 ; Blue Metal Industries Limited v. Dilley (1969) 117 C.L.R.

Section 6 and Schedule 1 of the F01 Act

For the sake of completeness, reference should be made to s.6 and Schedule 1 of the F01 Act to which Davies J. drew attention during argument. Section 6 is as follows:

"6. For the purposes of this Act -

(a)	each tribunal, authority or body specified in Schedule 1 is deemed to be a prescribed authority;
(b)	t h e h o l d e r o f a n o f f i c e p e r t a i n i n g t o a t r i b u n a l ,

authority or body specified in Schedule 1, being an office established by the legislation establishing the tribunal, authority or body so specified in his capacity as the holder of that office, is not to be taken to be a prescribed authority or to be included in a Department; and

(c)

a registry or other office of or under the charge of a tribunal, authority or body specified in Schedule 1, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the tribunal, authority or body so specified as a prescribed authority,

but this Act does not apply to any request for access to a document of a tribunal, authority or body so specified unless the document relates to matters of an administrative nature." (Emphasis added.)

Schedule 1 provides:

"SCHEDULE 1

Courts and tribunals exempt in respect of non-administrative matters

Coal Industry Tribunal or any other Tribunal, authority or body appointed in accordance with Part V of the

Coal Industrv Act 1946." (Em~hasis

added.)

Because of their "deeming" character, these provisions

must be regarded as equivocal for present purposes. these provisions as to the legislative intentions on the point now in question. Because a "deeming" provision is often a statutory fiction, it is not open to the Court to infer that the Parliament made an assumption that any of the bodies constituted under the Commonwealth Act would, or would not, fall within the F01 Act.

The Board's submission that it was not a "prescribed authorityi' should be rejected.

The Board's claim before the Tribunal for exemption on grounds of confidentialitv - s.45 of the F01 Act

The Board claimed that disclosure of the claim forms would be a breach of confidence. Section 45(1) is as follows:

"45. (1) A document is an exempt document if its disclosure under this Act would constitute a breach of confidence."

The Tribunal explained the following by way of

background:

"The claim form for compensation is completed by the worker effectively at the pit-head, as I was informed, and handed to the employer who forwards it to the insurance divison of the JCB. It remains within the exclusive control and possession of the Insurance Division, and no copy thereof comes into the possession of any other Division. The claim form for compensation completed by the worker is completed at the time of injury and its purpose is to document a claim for compensation by the worker arising during the course of his employment. Since the comins into force of the workers' Compensation Act 1987 (NSW) each worker is provided with a copy of the claim form, the copy being created by means of sensitised copying paper."

(It may be noted that by s.53(1) of the Workersr Compensation Act, 1926 (N.S.W.) it is provided that proceedings for recovery, under that. Act, of compensation for an injury shall not be maintainable unless notice of the injury has been given to the employer as soon as practicable after the happening thereof.)

The evidence before the Tribunal as to the nature of the claim for confidentiality was imprecise and expressed in very general terms. The Board relied, in particular, on a statement in the affidavit evidence (or, more accurately, an assertion) of its insurance manager, Mr. K.D. Thorne, given to the Tribunal, that "[all1 documents which are subject of the application form part of a decision making process and all such documents are supplied in confidence by the employer ..."

The Tribunal's decision on the claim for exemption under s.45

In rejecting the claim for exemption, the Tribunal said:

"It may well be that as against outsiders, such as the general public and other persons and companies in the

industry, the documents in question are impressed with the character of confidentiality. Accepting that this is so however, it seems to me that there are no grounds for suggesting that the grant of access to the document to the person who created it, in his own interest, is in any way a breach of confidence."

Submissions put on behalf of the Board in this Court in support of the claim for exemption

On behalf of the Board, it is now submitted that the ambit of the exemption conferred by s.45 is not limited to situations where an action would lie for breach of confidence: see Corrs Pavey Whiting and Byrne v. Collector of Customs (1987) 14 F.C.R. 434; Attorney-General v. Cockcroft (1986) 10 F.C.R.

180 at 191-92. It is said that the rationale of s.45 is that "an understanding that information is being supplied in confidence ought to be respected". It is contended that access to the information in the present case has been restricted and was communicated to the Board in circumstances in which it is proper to find a pledge of confidentiality: cf. Baueris v . Commonwealth of .~ustralia (1987) 75 A.L.R. 327 at pp.329-330. It is further said that nothing here turns on the fact that the respondent is requesting his own claim form: access pursuant to the Act is to anyone who so requests; that the relevant confidence is between the employer and its insurer, the Board; and that there is no relevant relationship between the employee and the Board and the provider of the information has expressly asserted the maintenance of confidence.

Did the Tribunal err in deciding that exemption claimed had not been made out?

Two questions arise here:

(1) Did the information in

the claim forms have the required quality of confidentiality at

the time the material was communicated? (See Corrs Pavey Whitinq

ti Byrne v. Collector of Customs (Vic.) (1987) 14 F.C.R. 434 per

Jenkinson J. at p.438.) ( 2 ) If so, was the confidentiality intended to be absolute or limited only? That is to say, would there be a breach of the confidentiality if the information were now to be disclosed by the Board to the respondent, being the person who supplied the very information in question?

In our view, no error of law was made by the Tribunal in rejecting the claim for exemption.

The question is essentially one of fact. Whether, and if so, to what extent, the information in question was provided

under an express or implied pledge of confidentiality, and if so,

the scope or extent of that confidentiality, will depend upon an

analysis of all the relevant circumstances (see Department of

Health v. Jephcott (1985) 62 A.L.R. 421 at p.425). It is

impossible to imagine that the respondent intended to exclude

himself from later access to the material. It is difficult to

conceive that Clutha, the employer, would wish to do so. ~t is,

in essence, a question of fact whether, in the circumstances, it

was the intention of the parties at the time of the communication

of the information that the recipient should be at liberty,

consistently with the confidence reposed, to divulge the

information to a limited class of persons (see Attorney-General's

Department and Australian Iron and Steel Pty. Ltd. v. Cockcroft

(1986) 10 F.C.R. 180 at pp. 191-2). That is, it is well

established that the fact that it is contemplated that disclosure

will be made to a restricted class of persons will not destroy

the confidential character of the material for other purposes and

vis-a-vis other persons.

The Tribunal concluded that even if some degree of confidentiality in the material were contemplated at the time the respondent handed over the claim forms, it should be inferred, or implied, from all the circumstances of the case that there would be no breach of any confidentiality if the information were later to be disclosed to the respondent. In our opinion, such a conclusion was not only open to the Tribunal, it was also clearly correct.

The appeal should be dismissed with costs.

I,:	certify that the preceding

ko y of the Reasons for Judgment ( 15) pages are a true

herein of their Honours Mr. Justice

Beaumont and Mr. Justice Pincus.

Associate

Dated: 26th October 1989

[1989] FCA 882

26 Oct 1989