Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of information)
[2017] AATA 269
•28 February 2017
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of information) [2017] AATA 269 (28 February 2017)
Division: FREEDOM OF INFORMATION DIVISION
File Number: 2014/4249
Re: UTOPIA FINANCIAL SERVICES PTY LTD
APPLICANT
And:AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 28 February 2017
Place Melbourne
Having made specific decisions in relation to each of the exemptions claimed by the respondent and having set them out in the reasons for decision and summarised them in Attachment B to those reasons, the Tribunal decides:
1.in relation to Documents 84 and 124:
(1)set aside the decision; and
(2)substitute a decision that the documents are not exempt documents under either ss 45 or 47E(d) of the Freedom of Information Act 1982;
2.in relation to Document 55:
(1)set aside the decision in so far as it relates to the heading of the email;
(2)substitute a decision that the heading of the email is not an exempt document under ss 45 or 47E(d); and
(3)otherwise affirm the decision that the document is an exempt document under the Freedom of Information Act 1982; and
3. in relation to Documents 126, 127, 128 and 129:
(1)set aside the decision;
(2)substitute a decision that the documents are not exempt documents under ss 45 or 47E(d) of the Freedom of Information Act 1982; and
(3)remit the decision to the respondent to follow the consultation processes set out in s 27 of the Freedom of Information Act 1982 and to determine whether the documents are exempt under s 47G; and
4.otherwise affirms, although for different reasons in some instances, the decision under review.
………[sgd]…………….
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION – exemptions claimed under ss 42 (legal professional privilege), 45 (breach of confidence), 47C (deliberative processes) -47E(d) (certain operations of agencies), 47F (personal privacy) and 47G (business interests) of the Freedom of Information Act 1982 – varied.
LEGISLATION
Acts Interpretation Act 1901; s 2C
Administrative Appeals Tribunal Act 1975; ss 34J, 42D
Australian Securities and Investments Commission Act 2001; ss 12A, 33, 47, 127(1), 127(3), 127(3A), 127(6), 127(9), 127A(1A),
Corporations Act 2001; ss 912A, 912C
Evidence Act 1995
Freedom of Information Act 1982; ss 8, 8A, 11A, 11B, 11C, 23, 24, 24AA, 27, 27A, 37, 42, 45, 47C, 47E(d), 47F, 47G, 54W(b), 61(1)(b), 90, 93AFreedom of Information Act 1982 (WA)
Freedom of Information Amendment (Reform) Act 2010; s 2(1), Item 6, s 3, Schedule 3, Part 2, Item 33
Privacy Act 1988; s 6(1)
Privacy Amendment (Enhancing Privacy Protection) Act 2012; s 2, Item 3 and s 3, Schedule 5, Item 6
Public Service Act 1999; ss 7, 10, 11, 13, 22, 42, 65, 72
Public Service Amendment Act 2013; s 3; Schedule 1, Part 6, Item 28Corporations Regulations 2001; reg 7.6.02
Australian Public Service Commissioner’s Directions 2016; cl 13
CASES
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878;
1 All ER 705
Ascic v Australian Federal Police [1986] FCA 260; (1986) 11 ALN N184
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31; 61 ALJR 92
Attorney-General’s Department and Another v Cockcroft [1986] FCA 35;
(1986) 10 FCR 180; 64 ALR 97
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30;
234 ALR 651
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571;
(2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Collins v Parker Unreported, SC (NSW), 11 May 1984
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 71 ALJR 327; 35 ATR 130
Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266; 2005 ATC 4903; 60 ATR 466
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47; 224 FLR 243
Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254; 7 AAR 187
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 77 ALJR 40
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6
Ellison v Vukicevic (1986) 7 NSWLR 104
Esso Australia Resources Ltd v Sir Daryl Dawson [1999] FCA 363; (1999) 87 FCR 588;
162 ALR 79
Evans v Federal Commissioner of Taxation [1989] FCA 205; (1989) 20 ATR 922; 89 ATC 4540
Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307;
37 FLR 310; 79 ATC 4,261; 9 ATR 873
Financial Ombudsman Services Ltd v Utopia Financial Services Pty Ltd [2016] WASC 55
Grofam Pty Ltd v ANZ Banking Group [1993] FCA 374; (1993) 43 FCR 408; 116 ALR 535; 26 ATR 174; 93 ATC 4672; 31 ALD 323
Harris v Australian Broadcasting Corporation and Others [1983] FCA 242; (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545
Hartogen Energy (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557
109 ALR 177
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611; 66 ALJR 365
Kavvadias v Commonwealth Ombudsman (No 2) (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198Kelly v JRA Ltd (1990) 92 ALR 651
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; 74 ALJR 378
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151; 80 ALJR 1549; 63 ATR 409
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275;
249 ALR 1; 82 ALJR 1288
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71; 64 ALJR 87
Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4
R v Joyce [2002] NTSC 70; (2002) 173 FLR 322
Re Booker and Department of Social Security [1990] AATA 218
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244;
(2010) 51 AAR 308
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs
[1996] AATA 210; (1996) 43 ALD 139; 23 AAR 142
Re Connolly and Department of Finance [1994] AATA 167; (1994) 34 ALD 655
Re Denehy and Superannuation Complaints Tribunal [2012] AATA 608; (2012) 131 ALD 413
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; 3 AAR 169
Re James and Others and Australian National University (1984) 6 ALD 687; 2 AAR 327
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67
Re Jones and Australian Federal Police [2016] AATA 329
Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23
Re Murtagh and Commissioner of Taxation (1984) 54 ALR 313; 6 ALD 112; 1 AAR 419;
84 ATC 4516; 15 ATR 787
Re Philip Morris Pty Ltd and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Prinn and Department of Defence [2016] AATA 445
Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361;
(2005) 66 AAR 242
Re Thies and Department of Aviation [1986] AATA 141; (1986) 9 ALD 454; 5 AAR 27
Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588; 1 AAR 1Re West Australian Newspapers Limited and Department of the Premier and Cabinet [2006] WAICmr 23
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 35
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Sankey v Whitlam (1978) 142 CLR 1
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another
(1992) 36 FCR 111; 108 ALR 163; 16 AAR 28
Seven Network Ltd v News Ltd [2005] FCA 142
State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549;
26 ALR 341; 53 ALJR 752
Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45; 85 ALR 173; 63 ALJR 392
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors [1979] FCA 85; (1979) 27 ALR 367; 42 FLR 331
Utopia Financial Services Pty Ltd v Financial Ombudsman Service Pty Ltd
[2012] WASC 279
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54;
71 ALR 673; 61 ALJR 350
OTHER MATERIAL
ASIC’s Regulatory Guide 103 “Confidentiality and release of information”
Australian Information Commissioner’s GuidelinesChambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Constitution and Terms of Reference of the Financial Ombudsman Service Pty LtdREASONS FOR DECISION
Utopia Financial Services Pty Ltd (Utopia) asked the Australian Information Commissioner (AIC) to review a decision made by the Australian Securities and Investments Commission (ASIC) on its request for access to documents under the Freedom of Information Act 1982 (FOI Act). The documents it requested were those relating to a notice dated 16 October 2013 and issued under s 33 of the Australian Securities and Investments Commission Act 2001 and another dated 19 December 2013 and issued under s 912C(1) of the Corporations Act 2001 (Corporations Act). Both notices had been issued by Mr Abramo Martinelli, an ASIC officer, to Utopia. An authorised decision-maker under s 23(1) of the FOI Act identified 680 documents as falling within the scope of Utopia’s request. Documents that were considered were those in existence at the date of the decision but the decision-maker acknowledged that others might have come into existence in the meantime. Except for two, she found all of the documents exempt and that it was not possible to make a copy of the documents so that they were not exempt. Refusal to grant access had also been made on workload considerations under ss 24 and 24AAA of the FOI Act.
At the time, the AIC’s office was facing disbandment. He decided that the matter was both complex and involving 680 documents. Therefore, it was unlikely that he would be able to conclude the matter before disbandment and, in the interests of the administration of the FOI Act, he exercised his powers under s 54W(b) of that legislation to decline to undertake an IC review. The practical outcome was that the matter was referred to the Tribunal.
Utopia narrowed the scope of its request until 129 documents remained in issue. I remitted the matter to ASIC to reconsider its decision and did so under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). ASIC no longer relies on ss 24 and 24AA but does continue to claim exemption under ss 42, 45, 47C, 47E(d), 47F and 47G. The parties then agreed that the matter could be heard on the papers without their attending. The power to do is found in s 34J of the AAT Act. While I allowed myself to be persuaded that this was an appropriate course in this case and particularly as it reduced the parties’ costs, I would not wish it to be thought that it was a path without difficulties that I would want to address in another case.
For the reasons I give below, I have reached the decisions on each of the exemptions claimed on each of the documents. They are summarised in the table at Attachment B to these reasons. In summary, in some instances, I have decided that the a document is an exempt document but on a ground or grounds narrower than those claimed by ASIC. Those documents are exempt documents regardless of the breadth of the grounds. In others, I have affirmed their decision made by ASIC. In relation to Documents 84 and 124, I have decided that they are not exempt documents on any of the claimed exemptions. Document 55, I find, is not an exempt document in relation to part of the content for which exemption was claimed. I have remitted Documents 126, 127, 128 and 129 to ASIC to carry out the consultative processes under s 27 and to determine whether they are exempt under s 47G of the FOI Act.
BACKGROUND
There is no disagreement between the parties regarding some of the facts leading up to Utopia’s making its request under the FOI Act. I have had regard to that in making the findings of fact in the following paragraphs but have also had regard to other sources, to which I refer in the course of these reasons. One is the judgment of Le Miere J in Utopia Financial Services Pty Ltd v Financial Ombudsman Service Pty Ltd,[1] to which reference is made in the submissions. Another is the affidavit of Mr Stuart Povey sworn on sworn on 18 February 2015 (Affidavit), a supplementary affidavit sworn on 1 May 2015 (Supplementary Affidavit) and a further affidavit sworn on 18 December 2015 (Third Affidavit). Mr Povey is an employee of ASIC. At the time that he swore his Third Affidavit he was the Senior Manager of the Indigenous Outreach Program but he had, until shortly before that time, been the Senior Manager of the Administrative Law Team (ALT) within ASIC’s Chief Legal Office (CLO). The ALT is responsible for the carriage of administrative review proceedings brought against ASIC, the coordination of ASIC’s compliance and its obligations under the FOI Act and the provision of administrative law advice to the rest of ASIC.
[1] [2012] WASC 279
Utopia Financial Services Pty Ltd (Utopia) is a financial services licensee under the Corporations Act. Its Managing Director and sole director is Ms Whiting. Ms Whiting is a Chartered Accountant and operates an accounting practice from Utopia’s offices. The Financial Ombudsman Service Limited (FOS) is a company incorporated under the Corporations Act.[2] Utopia and the Financial FOS have entered a contract formed by FOS’s Constitution and its Terms of Reference. Under that contract, complaints made by Utopia’s clients are resolved by a FOS Panel.
[2] ACN 131 124 448
FOS has been established as an independent forum to resolve disputes between those who have disputes with financial service providers (applicant) and those providers. FOS is charged with resolving those disputes in a cooperative, efficient, timely and fair manner. It has formulated Terms of Reference on 1 January 2010 and amended them on 1 July 2010 (Terms of Reference). Under those terms, FOS appoints Ombudsmen who have power to exercise all of the powers and discretions they confer on FOS. Among those powers is the power to resolve disputes by making determinations.[3] The Board of Directors of FOS may also appoint Panel Members.[4] Section C of the Terms of Reference sets out the process for deciding disputes that are within its jurisdiction. In essence, informal processes are followed. If no resolution is reached between the applicant and the financial service provider, FOS proceeds to a determination by either an Ombudsman or by a FOS Panel. A determination is a final decision and is binding upon the financial service provider if the applicant accepts the determination within 30 days of receiving that determination.[5]
[3] Terms of Reference; cll 2.1 and 2.2
[4] Terms of Reference; cl 2.3
[5] Terms of Reference; cl 8.7
Under cl 11.1(a), FOS may provide reports and recommendations as well as release information about a Financial Services Provider to any regulator such as ASIC, the Privacy Commissioner or a regulated securities exchange. FOS is required to collect and record comprehensive information pertaining to its dispute resolution processes. Much of that is statistical information and broadly based information.[6] Clause 12.2 is more specific in its requirements of FOS when it provides that:
“FOS must produce a report at least every twelve months for publication and provision to ASIC, the Financial Services Providers and the public. This report must be a comprehensive summary and analysis of the data collected. Amongst other things, it will include the following statistical information about each Financial Services Provider:
a) the number of Disputes referred to FOS;
b) the number of Disputes closed; and
c) the outcome of those Disputes.”
A provider has to be a member of FOS in order to be regarded as a “Financial Services Provider” in the Terms of Reference.[7]
[6] Terms of Reference; cl 12.1
[7] Terms of Reference; cl 20.1
On 25 May 2010, two of Utopia’s clients, Mr and Mrs Rees, lodged a dispute form with Financial Ombudsman Services Limited (FOS) complaining about advice that the company had given them and seeking financial compensation. The complaint was heard by a FOS Panel which decided that, in breach of s 945A of the Corporations Act, Utopia had not had a reasonable basis for the advice it had given Mr and Mrs Rees and that it had failed adequately to disclose to them the risks associated with the strategy it had proposed to them. But for that inappropriate advice and inadequate risk assessment, the FOS Panel found, Mr and Mrs Rees would not have invested as they did. Utopia’s breach of its obligations caused Mr and Mrs Rees’ loss. That loss amounted to $139,015. The FOS Panel decided that Utopia was to pay that amount together with a further $3,000 towards their professional costs. In turn, Mr and Mrs Rees would assign to Utopia all their rights and interests in respect of the various unlisted diversified property trusts together known as Property Trust Investment.
Utopia challenged the determination made by the FOS Panel alleging that it had made it in breach of the contract between it and FOS. The Supreme Court of Western Australia found that FOS had not acted outside its Terms of Reference and made an order for specific performance requiring Utopia to pay Mr and Mrs Rees the sum of $142,015. The judgment was delivered on 7 August 2012.[8]
[8] Utopia Financial Services Pty Ltd v Financial Ombudsman Service Ltd [2012] WASC 279;
On the basis of the Third Affidavit of Mr Povey, I find that ASIC became aware of this matter and also that Utopia had not made payment following a determination made by FOS in 2012. As a consequence, FOS had commenced proceedings against Utopia for breaching its contractual obligations under its agreement with FOS.[9]
[9] Third Affidavit at [13] and [14]
On 12 March 2012, a FOS Panel issued a written determination in relation to a complaint made to FOS by Dr Craddock. It upheld Dr Craddock’s complaint and directed Utopia to pay compensation to her in respect of certain investments. Upon receipt of that compensation and upon receipt of a request from Utopia, Dr Craddock was directed to assign to Utopia all of her rights and interests in those investments to Utopia. Utopia had not paid that compensation to Dr Craddock by the time that FOS instituted further proceedings in the Supreme Court of Western Australia in 2013. In those proceedings, FOS sought specific performance of its contract with Utopia requiring Utopia to pay compensation to her. The matter was heard by Le Miere J on 7 and 8 May 2015. On 24 February 2016, he handed down his judgment finding that Utopia had breached its contract with FOS and ordering that Utopia specifically perform the contract by making payments as previously directed by FOS.[10]
[10] Financial Ombudsman Services Ltd v Utopia Financial Services Pty Ltd [2016] WASC 55; Le Miere J
In 2013, ASIC commenced surveillance of Utopia. Mr Povey states that the purpose of the surveillance was to assess Utopia’s compliance with financial services laws in relation to its external dispute resolution obligations, financial product advice to clients and dealings with a property investment known as Sea Pines. In its Contentions, Utopia states that surveillance commence when FOS’s then Chief Ombudsman and former ASIC Commissioner, Mr Shane Tregillis lodged a complaint with the then ASIC Deputy Chairman, Mr Peter Kell. Whether Mr Tregillis did lodge such a complaint and, if so, the circumstances leading up to the complaint, are not relevant issues for the purposes of reviewing the decision made under the FOI Act. I do not propose to consider it further other than to note that a complaint, if made, is not inconsistent with Mr Povey’s statement of the purpose of that surveillance.
In October 2013, ASIC issued compulsory notices upon three organisations:
(1)On 9 October 2013, ASIC issued a compulsory notice upon the Credit Ombudsman Limited (COSL)[11] to produce details of Utopia’s membership and complaints made against it.
(2)On 16 October 2013, ASIC issued a compulsory notice upon FOS under the Australian Securities and Investments Commission Act 2001 (ASIC Act) to produce any complaints files relating to Utopia.
(3)On 16 October 2013, ASIC issued a compulsory notice under the ASIC Act upon Utopia requesting it to produce documents relating to its professional indemnity insurance arrangements and complaints register.[12]
[11] COSL changed its name to Credit Industry Ombudsman (CIO) on 19 November 2014.
[12] Third Affidavit at [16]-[18]
On 23 December 2013, Utopia lodged a complaint with ASIC’s Professional Standards Unit about the conduct of its surveillance.[13] In its Contentions, Utopia referred to unannounced visits by ASIC officers to its premises on 30 June and formal demands for information issued on 18 December. No mention is made of the year in which the demands were said to have been made. Utopia contends that ASIC did not find a single breach or instance of non-compliance and was ultimately forced to cease the surveillance. Whether ASIC did or did not find such a breach is not a matter on which I have to make a finding and nor is the state of the surveillance.
[13] Third Affidavit at [19]
THE REQUEST
On 23 December 2013 and in her capacity as Managing Director of Utopia, Ms Whiting wrote to ASIC requesting access to documents under the FOI Act. She began her email with a reference to an ASIC file and then continued:
“With reference to the above matter and particularly the issue of a section 33 Notice dated 16 October 2013 and a s 912(C)1 Notice dated 19 December 2013 issued by Mr Abramo Martinelli to Utopia Financial Services Pty Ltd, I am the sole Director and shareholder of Utopia Financial Services Pty Ltd.
I hereby request ASIC in accordance with the provisions of the Freedom of Information Act to release the following information:
1.Telephone records of conversations between Ms Zoe Irwin and Mr Martinelli and Debbie Whiting and Clive Ross on Monday 14 October 2013;
2.All documents including any complaint lodged by the Financial Ombudsman Service against Utopia Financial Services Pty Ltd or Debbie Whiting;
3.All documents upon which ASIC or its officers have relied in commencing this investigation;
4.Statement of reasons for the issue of the section 33 and section 912(C) 1 Notices;
5.All documents, files and records relating to a FOS complaint against Utopia/Debbie Whiting lodged by Dr Craddock.
6.Any other documents on the investigation file.
…”[14]
Ms Whiting authorised ASIC to release the documents to, and to communicate with, Mr Clive Ross, who is an employee of Utopia.
[14] T documents; T3 at 41
In its response dated 17 January 2014, ASIC wrote to Mr Ross asking, in effect, whether Utopia was able to narrow the scope of its request by identifying with greater specificity the complaint lodged by the Financial Ombudsman Service and the investigation referred to in paragraph 3 of Utopia’s request.[15] Various correspondence was exchanged between Utopia and ASIC regarding the scope of the request until 19 March 2014 when Ms Whiting submitted a revised request seeking access to the following documents:
“1. Telephone records of conversations between Ms Zoe Irwin and Mr Martinelli and Debbie Whiting and Clive Ross on Monday 14 October 2013;
2.All documents relating to or concerning a complaint lodged by the Financial Ombudsman Service (FOS) against Utopia or Debbie Whiting from the period of 1 January 2009 to present;
3.All documents upon which ASIC or its officers have relied in communicating its investigation against Utopia. ‘Investigation’ refers to Louise Macaulay having advised the Minister for Justice by letter dated 2 January 2014 that ASIC is conducting a surveillance on Utopia and Debbie Whiting and the two ASIC Notices issued identifying that ASIC is conducting an investigation;
4.Statement of reasons for the issue of the section 33 and section 912C(1) notices;
5.All documents relating to the issue of the section 33 and section 912C(1) Notice including Section 33 Notices issued in March 2014;
6.All documents, files and records relating to a FOS complaint against Utopia/Debbie Whiting lodged by Dr Craddock. It is Utopia’s understanding that ASIC has been provided with a file from FOS concerning a complaint lodged by Dr Craddock against Utopia and/or Debbie Whiting. This file was referred to by Mr Martinelli in a conversation on 14 October 2013; and
7.Any other documents on the investigation file – If ASIC maintains a file on eh surveillance referred to by Ms Macaulay, all these documents, to the extent they are not already covered by 1. – 6. above.”[16]
[15] T documents; T4 at 45-47
[16] T documents; T10 at 75
ASIC’s DECISION
On 16 April 2014, an authorised decision-maker under s 23(1) of the FOI Act for ASIC notified Mr Ross that 680 documents had been identified as falling within the scope of the request. As the request related to an ongoing matter, further documents were likely to fall within the scope but only those documents in existence on 16 April 2014 were considered. Two documents were released but access to the other documents was refused on the basis that they were exempt documents under ss 37(1)(a), 37(2)(b) or 45 or under more than one of those provisions. It would not be possible, ASIC decided, to make a copy of the documents with deletions so that they would no longer be exempt documents.
AUSTRALIAN INFORMATION COMMISSIONER’S REVIEW
Utopia lodged an application with the Australian Information Commissioner (AIC) for review of ASIC’s decision. In a letter dated 19 June 2014, the Office of the AIC wrote to Mr Ross at Utopia advising him that, unless the scope of the request could be significantly reduced, the OAIC intended to make a decision under s 54W(b) of the FOI Act. It intended to do so on the basis that it was in the interests of the administration of the FOI Act that Utopia’s review application be closed and that it be provided with the opportunity to apply directly to this Tribunal. Utopia applied to the Tribunal on 15 August 2014.
APPLICATION TO THE TRIBUNAL
In the initial stages of the proceedings, ASIC took the view that Utopia’s request should be refused on the basis of workload considerations dealt with in ss 24 and 24AA of the FOI Act. As a consequence, Utopia narrowed the terms of its request to limit the documents it requested. By consent, I made an order limiting the documents in issue to those meeting the following description:
“∙ documents of information including file notes, electronic records, emails or diary notes prepared by the Respondent or the Respondent’s officers specially relating to the Applicant or the enquiry, surveillance or investigation of the Applicant;
∙documents of information including file notes, electronic records, emails or diary notes specially relating to the Applicant and concerning any complaint or information provided by the Financial Ombudsman Service or any of its representatives to the Respondent concerning Dr Shelley Craddock.”
Over 1,200 documents came within the scope of the narrowed request. When ASIC lodged and served on Utopia a list of those documents, Utopia identified 127 documents to which it sought access. On 8 July 2015, the Tribunal remitted the decision to ASIC under s 42D of the Administrative Appeals Tribunal Act 1975. It was remitted to ASIC so that it could reconsider its decision regarding access to documents identified and highlighted by Utopia in three lists of documents that had been lodged with the Tribunal on 2 June 2015. Those lists were those contained in the Objective File Management, the PRIME Database and the Ringtail Database.
On 17 September 2015, an authorised decision-maker decided to grant access to 77 of those documents and to another 29 documents in part. In so far as it refused access, ASIC principally relied on the public interest conditional exemptions of s 47C (deliberative processes of an agency) and 47E(d) (substantial adverse effect on an agency). In addition, it relies on s 45 (material obtained in confidence), 47G (business or professional information), s 42 (legal professional privilege) and s 47F (personal privacy). ASIC slightly modified its decision in relation to two documents: Documents 37 and 109.
CONSIDERATION
In the Attachment, which forms part of these reasons, I have set out the exemptions that have been claimed together with their interpretation and principles relating to their application. I have also set out my view as to the regard that must be had to the IC Guidelines.
Onus of proof
As Utopia made a request to ASIC for access to documents, it:
“… has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.”[17]
[17] FOI Act; s 61(1)(b)
The personae
I have given some thought to whether I should list the names of ASIC officers and the positions they hold in ASIC in a single paragraph. On balance, I think that my doing so makes it easier to follow the documents and the consideration of the claims made for their exemption because it provides a point of reference. Quite appropriately, ASIC did not seek exemption for their names under the FOI Act. In so far as I have been able to ascertain the position held by each of the authors or recipients of documents in ASIC, they are:
Name
Position
Mr Greg Medcraft
Chairman
Mr Peter Kell
Deputy Chairman
Mr Gary Bertram
Senior Manager, Financial Services Enforcement
Ms Joanna Bird
Senior Executive Leader, Financial Advisers
Mr Trevor Clarke
Senior Manager, Financial Advisers
Mr Andrew Davison
Analyst, Financial Advisers
Ms Meredith Dodds
Senior Specialist, Chief Legal Office (CLO)
Mr Paul Eastment
Senior Manager
Ms Sarah Edmondson
Senior Manager, Financial Advice Codes
Ms Zoe Irwin
Lawyer, Financial Advisers
Ms Pauline Kaufman
Financial Advisers
Mr Michael Kingston
Chief Legal Officer
Ms Louise Macaulay
Senior Executive Leader, Financial Advisers
Mr Abramo Martinelli
Lawyer, Financial Advisers
Ms Clare McCarthy
Senior Policy Adviser, Financial Advisers
Mr Grant Moodie
Special Counsel, CLO
Mr Domingos Moraes
Senior Economist
Mr Tim Mullaly
Senior Executive Leader, Enforcement
Mr Murray Robertson
Analyst, Financial Advisers
Mr Robert Rush
Manager – Government Relations
Ms Nina Wan
Strategic Intelligence
Ms Michelle Whittle
Exemption s 42: legal professional privilege
(Documents 73, 81, 82 and, in part, 83)
The documents for which legal professional privilege is claimed involve Ms Meredith Dodds, who is described as a Senior Specialist with ASIC’s Chief Legal Office (CLO), and Mr Grant Moodie, who is described as a Special Counsel in the same office. On the basis of Mr Povey’s Third Affidavit, I find that Ms Dodds was, at all relevant times, a member of ASIC’s Chief Legal Office and was based in Sydney. Mr Moodie was also a member of that office. [18]
[18] Mr Povey’s Third Affidavit at [94]-[95] and Exhibit MSP-7
On the same basis, I find that the CLO is managed by Mr Michael Kingston, who holds a position in ASIC as its Chief Legal Officer. The Corporate Structure, which is also included as part of MP-7 to the Third Affidavit, shows that the CLO is one of the “units” having direct responsibility to Mr Greg Medcraft, the Chairman of ASIC. Mr Kingston is not, for example, responsible to any intermediary such as the Deputy Chairman or a Commissioner. Its role is to provide the primary source of advice to ASIC on a range of matters including:
(1)providing advice and oversight in respect of major cases conducted by ASIC;
(2)providing advice in respect of:
(a)complex or novel regulatory matters;
(b)new areas of regulatory responsibility;
(c)unsettled questions of interpretation of legislation administered by ASIC;
(d)law reform;
(e)major contracts and other significant legal arrangements;
(3)advising the Commission and senior officers as to their legal rights and responsibilities;
(4)establishing policies and procedures in relation to administrative law, including matters involving the Markets Disciplinary Panel, the Administrative Appeals Tribunal, freedom of information and the Commonwealth Ombudsman; and
(5)drafting or settling class orders which give general relief from the laws ASIC administers and advising about and settling novel relief in individual cases.[19]
[19] Third Affidavit at [96]
Mr Povey’s evidence regarding the manner in which advice is sought and given is not questioned by or on behalf of Utopia. On that basis, I find that ASIC officers seek legal advice from CLO both formally, in the form of memorandum and informally, in the form of emails. As for confidentiality, the practice is that “generally”, advice from the CLO, both formal and informal, is kept confidential. Generally, the advice is provided only to those ASIC officers having an operational role in respect of the matter that is the subject of the advice. As a rule, it is not provided to bodies outside ASIC.[20]
[20] Third Affidavit at [97]
Having regard to the structure of the CLO, its independence from the rest of ASIC and the outline of the way in which the office manages its advices, I accept that those of its officers who are lawyers are capable of giving legal advice to officers located elsewhere in ASIC. That is so even though both the officers in CLO and the officers whom it advises are officers of the same Commonwealth agency. Whether they have provided legal advice depends on whether they have been consulted in the capacity of legal advisers in relation to a professional matter and the consultations and advice are made in confidence and arise from that relationship of lawyer and client. That takes me to the individual documents, each of which I have read and considered in light of the principles I have set out at [142] to [170] in the Attachment.
A.Document 73
Document 73 is written by Mr Abramo Martinelli, who is a Lawyer in Financial Advisers. ASIC’s Corporate Structure as at 9 September 2014 shows Financial Advisers as being one of the Stakeholder Teams coming under the responsibility of a Deputy Chairman and coming within the Investors and Financial Consumers group in ASIC.[21] In his capacity as a member of the Financial Advisers team, Mr Martinelli asked for advice from Ms Dodds. The subject matter of the advice that he seeks is in the nature of legal advice relating to various paths that ASIC’s surveillance or investigation might take it. It follows that I am satisfied that Document 73 is exempt under s 42 of the FOI Act.
[21] Third Affidavit at MSP-7
Documents 81 and 82
Document 81 is an email dated 6 February 2014 from Mr Trevor Clarke, who is the Senior Manager of the Financial Advisers team in ASIC. His email is addressed to Mr Grant Moodie, who is a Special Counsel with the CLO. It is copied to others who, I find, are officers of ASIC.[22] Mr Clarke has written the email to ask Mr Moodie to review and settle a draft letter that has been prepared in the Financial Services team in response to Utopia’s request for written reasons under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). If the dominant purpose of the email is to obtain legal advice from CLO as to how Financial Services should respond, it would be pursuing that purpose in the context of its responsibilities within ASIC. Its responsibilities are part of ASIC’s wider responsibilities as a regulator. The email would be subject to legal professional privilege. If the dominant purpose of the email is to shore up a preconceived position held by the Financial Services team or perhaps by ASIC itself, the position is less clear. If CLO is required to give input on that basis, its independence could come under question. If its independent view is sought regardless of whether an officer of ASIC or ASIC itself puts a contrary, and perhaps previously settled, view, its independence would not come under question.
[22] Ms Louise Macaulay, Ms Pauline Kaufman, Ms Zoe Irwin and Ms Joanna Bird
In a case to be determined on the papers, I have not had the benefit of hearing from ASIC’s officers. I have affidavit material, to which I also refer, but otherwise have only the content of the documents on which to make a decision. Among those documents is the response from Mr Moodie to Mr Clarke. It is Document 82 and takes the form of an email also dated 6 February 2014. Having regard to the way in which the response is worded, I am satisfied that Mr Moodie regarded the email as a request for his independent legal advice on the contents of the draft letter and not simply as an endorsement of a preconceived position taken by the Financial Services team or perhaps by ASIC. He gave his legal advice in Document 82. Therefore, I find the subject matter of both Documents 81 and 82 exempt under s 42 of the FOI Act.
B. Document 83
Document 83 is an email from Ms Zoe Irwin, who is a Lawyer in the Financial Services team to Ms Louise Macaulay and Ms Joanna Bird, who are both Senior Executive Leaders in the Financial Advisers Team. The email was copied to Mr Trevor Clarke, who is a Senior Manager in the same team. Ms Irwin attached two documents to her email. One was an internal ASIC memorandum setting out the reasons for Utopia’s having been under surveillance. The other was a draft of a letter to Utopia in response to its request for reasons behind ASIC’s decision to issue two statutory notices to obtain documents and information in respect of its surveillance of Utopia. Exemption is claimed under s 42 for part of the email on the basis that it contains an extract of legal advice provided by CLO. On that basis, exemption has been claimed for the whole of the fourth paragraph of the email forming part of Document 83 and the whole of the fifth paragraph of the draft letter annexed to the email.
Having regard to the content of both passages, I am satisfied that the fifth paragraph of the draft letter discloses legal advice obtained from CLO. It is subject to legal professional privilege. The fourth paragraph of the email is more problematic. The first sentence is subject to legal professional privilege and is exempt because it reveals advice given by CLO. The rest of the paragraph is less clear. At one level, it appears to disclose matters of operational concern and rumination. At another, the discussion of operational issues and ruminations draws in the legal advice that has been given and which I have found to be subject to legal professional privilege. In view of that, I have decided that it discloses the legal advice that has been given either directly or indirectly. Therefore, I am satisfied that the whole of the fourth paragraph of the email is also subject to legal professional privilege.
Exemption s 45: material obtained in confidence
(Documents 45, 47, 48, 55, 84, 93 and 122-129)
The documents are separated into three categories: documents containing information from the Financial Services Ombudsman and the Credit Information Ombudsman; complaints to ASIC; and documents containing information provided under compulsory notice.
A.Information from the Financial Services Ombudsman and the Credit Information Ombudsman and complaints to ASIC
In the Third Affidavit, Mr Povey states that Documents 45, 55, 84 and 93 and part of Document 47 are exempt on the basis that they contain information obtained by ASIC on a voluntary basis and in confidence. To disclose the information in those documents or in part of one of them would amount to a breach of confidence. Maintenance of the confidentiality of ASIC’s exchanges with such bodies is critical, Mr Povey said, to its relationships with its stakeholders. FOS and COSL are numbered among those stakeholders. Mr Povey stated that disclosure of the various complaints, referrals and related communications would cause detriment to the complainants, in the case of complaints, and to the stakeholders otherwise. If ASIC were to divulge details of confidential complaints, it could reasonably be expected that complainants would be more willing to complain to ASIC or, if they did, to be less detailed in their scope. In the case of stakeholders such as FOS and COSL, he said, they are a source of information for ASIC. They often pass on sensitive information about their members as well as about their own internal deliberations. Mr Povey stated that any unauthorised disclosure of information in the documents in the first two categories of documents would undermine and impede the cooperation that stakeholders presently display in their dealings with ASIC.
B. Document 45
Document 45 is said by Mr Povey to be a file note of a confidential conversation between an unnamed ASIC officer and a staff member of FOS. The security classification given to the document is “In confidence”. That, however, is only part of the material that determines whether or not information has been given in confidence such that its disclosure would be a breach of confidence. The information itself must also have the necessary quality of confidentiality. Given that the file note is dated 9 October 2013 and given that proceedings had been lodged in the Western Australian Supreme Court in 2013 and was not subject to any confidentiality orders,[23] I find that the information contained in the first two dash points of the file note following the opening two line sentence are not capable of being confidential. That is information that would have been available to any person following the relevant proceedings in the Supreme Court.
[23] See [12] above
The information in the third and fourth dash points and final paragraph of the file note are in a different category. As Mr Povey states in his Third Affidavit, they reveal the views of a FOS staff member as to Utopia’s conduct at that time. It is information that is capable of being confidential. Taken in its context, which includes the marking of the file note as “In Confidence”, I am satisfied that the information was conveyed by the officer of FOS to an officer of ASIC. Those matters, as well as Mr Povey’s evidence that such sources of information were valued by ASIC and their communications protected, lead me to conclude that the information was received in confidence by the ASIC officer. The information is such that, by receiving it in the circumstances in which it did, ASIC was obliged not to reveal it. Therefore, I am satisfied that the third and fourth dash points and last paragraph of Document 45 are exempt from disclosure under the FOI Act by reason of s 45.
The first two lines of Document 45 reveal that there was contact with FOS but not with the name of the officer with whom the contact was had. Given the structure of FOS and the role that it plays in regulating financial service providers, I do not find the identity of the FOS officer to be capable of being in confidence. The FOS officer and the ASIC officer are in contact regarding matters within the realm of their responsibilities and would be expected to be in contact. The fact that they have been in contact and their identities is not something whose disclosure would be regarded as a breach of confidence. My only qualification to that statement is that the FOS officer’s telephone number is capable of being confidential and would have been given in the expectation that it would not be circulated outside those in ASIC with a need to know. The telephone number is exempt under s 45 but, except for that, the first two substantive lines of Document 45 are not exempt.
That leaves the standard information in the block at the top of Document 45. There is nothing in that block that precedes the word “Details” that is exempt under s 45 and nor is the last line following the substantive text. It is a standard form of text into which certain details are populated. I am not satisfied that either the standard text or the populated text is capable of being exempt under s 45.
C. Documents 47 and 48 (part)
Documents 47 and 48 contain the same notes of a meeting regarding Utopia and its involvement with FOS. They contain information regarding a complaint made against Utopia and information received from FOS. The complainant gave ASIC information regarding its complaint. Mr Povey states in his Third Affidavit that the complainant provided that information on a voluntary and confidential basis. There is no note to that effect on the document itself but the second passage, for which exemption is claimed, does contain a statement that leads me to conclude that the complainant necessarily gave the information conveyed in the relevant parts of the second and fifth paragraphs of Documents 47 and 48 in confidence. For the reasons given in the previous paragraph, I am satisfied that ASIC received that information in confidence and in circumstances in which it was obliged to maintain that confidence. Therefore, I am satisfied that the passage commencing “(“on the second line of the second paragraph and ending “)” on the third line of that passage is exempt under s 45 of the FOI Act as is the whole of the fifth paragraph.
The final sentence of the seventh paragraph is claimed to be exempt on the basis that it contains information conveyed in confidence to it by an officer of FOS. I accept that this is information that is capable of being confidential. For the reasons given in [39], I again accept that ASIC received that information in confidence and in circumstances in which it was obliged to maintain that confidence. That sentence is exempt under s 45.
D. Document 55
Document 55 is a file note dated 15 October 2013 of a telephone conversation between an unnamed person and a person in FOS. Exemption is claimed for the whole document under s 45. It has a security classification of “In Confidence”. Although the author of the note is not identified, it is does have the hallmarks associated with other file notes identified as originating in ASIC. Those hallmarks include the setting out of the file note as well as the subject matter dealt with.
I am satisfied that the file note has the necessary quality of confidentiality in that it could not be said to be of common or public knowledge. Taken with the security classification given to the document, the nature of the information conveyed and the authority given to FOS by cl 11.1(a) of its Terms of Reference to reveal information to ASIC, I am satisfied that FOS gave and ASIC received the information in circumstances in which confidentiality of the information was to be preserved. To release that information would be a breach of that confidence. It follows that I am satisfied that the substantive passage in Document 55 is exempt under s 45. I am not satisfied that the heading of the email is exempt. Its information reveals no more than is revealed in the Schedule of Documents prepared by ASIC and by the fact that it is a document that comes within the terms of Utopia’s request for access.
E. Document 84
I have described Document 84 in Attachment B to these reasons. It does not refer to Utopia but may come within the terms of the Request by virtue of its catch all request for “Any other documents on the investigation file.” There is no security classification on the email. Given the obligation that cl 12.2 of the Terms of Reference imposes on FOS to publish statistical information about each of its members (being Financial Service Providers within the meaning of those Terms of Reference) and the information that ASIC makes publicly available, I am not satisfied that the information contained in the email has the necessary qualities that make it confidential information. Even if the information in the email were to represent conclusions drawn from information that is not publicly available, I would not be satisfied that the particular conclusions are themselves capable of being confidential information in this particular chain of emails. Any conclusions of that sort are readily drawn from the raw publicly available data. I am not satisfied that disclosure of the information would amount to a breach of confidence. Therefore, I am not satisfied that Document 84 is exempt under s 45.
F.Document 93 (part)
ASIC has claimed that the second (and last) of the chain of emails is exempt under s 45 on the basis that it summarises documents obtained on notice from FOS and COSL. Access to the first email has already been given as it constitutes Document 92. Therefore, Document 93 is not exempt to the extent that it mirrors Document 92.
ASIC claims that disclosure of the information in the second email in the chain would amount to a breach of the confidential relationships between ASIC and its stakeholders including FOS and COSL. That email has been written by Ms Zoe Irwin and, as Mr Povey states at [33] of his Third Affidavit and as is supported by reference to Document 92 being the first email, provides analysis and consideration of information obtained during surveillance and the outcome of a meeting with Utopia on 30 June 2014. It provides further advice as to the collection of evidence by ASIC. It is claimed by ASIC that disclosure of the details of the various complaints, referrals and related communications would cause detriment to the complainants or stakeholders by virtue of disclosing information over which they would want to maintain confidence. If ASIC were required to divulge the details of complaints made to it confidentially, it could reasonably be expected that complainants would be less forthcoming and/or less detailed. With regard to information provided by FOS and COSL, Mr Povey said in his Third Affidavit that they often pass on sensitive information about their members and their own internal deliberations. Any unauthorised disclosure of the information would undermine and impede stakeholders’ cooperation with ASIC.
Exemption is claimed for the substance of the last text immediately following the salutation and ending immediately before the signature block. The email has not been given a security classification at all. It is difficult to identify the precise information that is claimed to have been given in confidence. The sixth and final paragraph before an informal signature block on the first page of the second or later email provides an example. In so far as the information is statistical and the identity of the persons to whom it applies cannot be ascertained, disclosure of that information is an authorised use of the information within the meaning of s 127(1) of the ASIC Act when read with s 127A(1A). The statistical information does not identify persons or investments. In so far as there is a statement of fact, as in the penultimate sentence of that paragraph, there is nothing to suggest that the information was given or received in circumstances importing an obligation of confidence. The same is true of the remainder of the paragraph.
It is also true for the previous five paragraphs. Some statements of fact are made in those paragraphs but neither the nature of the information itself nor its inclusion in the email suggests that it was given or received in circumstances importing an obligation of confidence. The paragraphs also include hypotheses and, possibly in some instances, conclusions, are drawn in those five paragraphs. Again, having regard to the formulation of the hypotheses or conclusions and the nature of the information disclosed, I am not satisfied that those paragraphs disclose information given or received in confidence.
The passage following the informal signature block and preceding the formal conclusion of the second email is information of such a nature that it is not of common or public knowledge. It can be identified with specificity. Mr Povey has stated that the information was obtained in confidence and the nature of the information is consistent with his statement. I am satisfied that the final paragraph of the first email is exempt under s 45 of the FOI Act.
G.Documents 122-129
Documents 122 to 129 are described in Attachment B to these reasons. Mr Povey has also described them in general terms as documents produced by third parties in response to compulsory notices issued by ASIC. In general terms, they relate to Utopia’s activities in one way or another. Based on Mr Povey’s Third Affidavit, I find that the documents were obtained after ASIC exercised its power to issue notices requiring the production of information. He has referred to ASIC’s “inter alia”, powers under Division 3 of Part 3 of the ASIC Act. No mention is made of what other powers might have been exercised.
Division 3 of Part 3 is headed “Inspection of books and audit information-gathering powers”. It contains a number of powers that have been given to ASIC to obtain information. Some of those powers may only be exercised for the purposes set out in s 28. Nothing in the documents or in the affidavit material points me to the particular section upon which ASIC relies as its source of power. Section 47, which is the penultimate provision in Division 3, applies to all of the powers. It provides that:
“(1) A disclosure to ASIC pursuant to a requirement made under this Division must take place in private and ASIC may give directions about who may be present during it, or during a part of it.
(2)A person must not be present during a disclosure unless he or she:
(a)is a member; or
(b)is a staff member approved by ASIC; or
(c)is entitled to be present by virtue of:
(i)a direction under subsection (1); or
(ii)subsection 48(1).
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(3)Subsection (2) is an offence of strict liability.
Note:For strict liability, see section 6.1 of the Criminal Code.”
Subject to certain qualifications, s 48 permits the lawyer of a person making a disclosure to attend during the disclosure.
Section 127 of the ASIC Act provides that:
“(1) ASIC must take all reasonable measures to protect from unauthorised use or
disclosure information:
(a)Given to it in confidence or in connection with the performance of its functions or the exercise of its powers under the corporations legislation (other than the excluded provisions); or
(b)that is protected information.
Note: Information given to ASIC under Part 7.5A of the Corporations Act may be taken, for the purpose of this section, to be given in confidence in connection with the performance of ASIC’s functions under that Act: see subsections 903A(5) and (6), and 906A(3) and (4), of the Corporations Act.
(1A)Disclosing summaries of information or statistics derived from information is authorised use and disclosure of the information provided that information relating to any particular person cannot be found out from those summaries or statistics.
(2)For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of a State or internal Territory is taken to be authorised use and disclosure of the information.
(2A)-(2G)…
(3)For the purposes of subsection (1), the disclosure of information by a person for the purposes of:
(a)performing the person’s functions as:
(i)a member, staff member or ASIC delegate; or
(ii)a person who is acting as a member or staff member or who is authorised to perform or exercise a function or power of, or on behalf of, ASIC; or
(b)the performance of functions or services by the person by way of assisting an ASIC delegate;
is taken to be authorised use and disclosure of the information.
(3A)Using or disclosing information in accordance with the consent of the person who provided the information is authorised use and disclosure of the information.
(4)-(5A)…
(6)“Nothing in any of subsections (1A), (2), (2A), (2B), (2C), (3), (4), (4B) and (5) limits:
(a)anything else in any of those subsections; or
(b)what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.”
The expression “protected information” is defined in s 127(9) to mean:
“… information disclosed or obtained, or a document given or produced, (whether before or after the commencement of this section), for the purposes of a function in section 12A and relating to the affairs of:
(a)a body or person regulated by ASIC; or
(b)a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related (within the meaning of the Corporations Act) to be a body regulated by ASIC; or
(c)a person who has been, is, or proposes to be, a customer of a body or person regulated by ASIC;
other than information that has already been lawfully made available to the public from other sources.”
Section 12A(1) provides that ASIC has the functions and powers that are conferred upon it by various Acts that it specifies. None is relevant in this case but ss 12A(2), (3) and (4) are relevant. They provide:
“(2) ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the Australian financial system.
(3)ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by:
(a)promoting the adoption of approved industry standards and codes of practice; and
(b)promoting the protection of consumer interests; and
(c)promoting community awareness of payments system issues; and
(d)promoting sound customer-banker relationships, including through:
(i)monitoring the operation of industry standards and codes of practice; and
(ii)monitoring compliance with such standards and codes.
(4)Subsections (2) and (3) confer functions and powers to the extent to which they are not in excess of the legislative power of the Commonwealth.”
In his affidavit, Mr Povey referred to ASIC’s Regulatory Guide 103 (RG 103) entitled “Confidentiality and release of information”. He used this in support of his statement that, where material is acquired under compulsion by ASIC in the course of investigation or surveillance, it is under a statutory obligation to protect or maintain the confidence of the information.[24] The submissions made by ASIC take a more nuanced position. That position is that s127(1)(a) applies to information if (a) the information is given to ASIC in confidence or (b) the information has been given to ASIC in, or in connection with, the performance of ASIC’s functions or exercise of its powers. That interpretation is reflected in RG 103, which considers information given to ASIC voluntarily as well as that given under compulsion. In the case of that obtained compulsorily, RG 103 states:
“… It is ASIC’s view that s 127(1) does not impose obligations of confidentiality where the information itself is not in fact confidential. Information obtained under ASIC’s compulsory powers will not necessarily be confidential. Thus, for example, if under one of its compulsory notices ASIC obtains a file of newspaper clippings, the fact that the clippings were obtained compulsorily does not mean that the information in the clippings becomes confidential when it has already been publicly disclosed. (The existence and composition of the file might be confidential, however.)
Nor does s 127 impose an obligation on ASIC not to disclose information in circumstances where the relationship between the person who provided the information to ASIC and the person to whom ASIC discloses it is such that no obligation of confidentiality can arise. For example, if ASIC learns some sensitive business information about a company in the course of an examination, and the liquidator of the company wants access to that information, ASIC owes the company no duty to withhold the information from the liquidator. (However, it may be that a person other than the company is owed a duty of confidentiality with respect to the same information.)”[25]
[24] Third Affidavit at [63]
[25] RG103 at [RG 103.8] and [RG 103.9]
I agree with the position taken by ASIC regarding the interpretation of s 127(1). On my understanding of the provision, it does not mean that, simply because information has been obtained compulsorily in the exercise of ASIC’s powers, the information must have been given in confidence. If it were otherwise, there would be no need to include the Note to s 127(1) of the ASIC Act. That specifically recognises that Information given to ASIC under Part 7.5A of the Corporations Act may be taken, for the purpose of s 127, to be given in confidence in connection with the performance of ASIC’s functions under that legislation. I have no evidence that the information was obtained under Part 7.5A. Therefore, it is not taken to have been given in confidence by virtue of the provisions of Part 7.5A.
Mr Povey has given evidence that ASIC gives assurances that it will, to the extent that is practicable, maintain the confidentiality of information given to it. He does so in the context of ASIC’s encouraging the public, the regulated population and stakeholders to provide information to it.[26] The material in relation to which the exemption is claimed, though, was not obtained voluntarily but compulsorily. He has referred to ASIC’s being under an obligation to maintain confidence under s 127 when material has been acquired under compulsion but, for the reasons I have given, this is not my understanding of the provision.
[26] Third Affidavit at [62]
There is no evidence that the Documents 122 to 129 were obtained in circumstances importing an obligation of confidence on ASIC. The information contained in all but six of the documents does not of itself lead to the conclusion that it is of such a nature that it would be given in such circumstances. On the basis that those six documents were obtained by ASIC’s using its powers, it is obliged by s 127(1) of the ASIC Act to take all reasonable steps to protect those documents from unauthorised use or disclosure. ASIC is not excluded from the operation of the FOI Act. Therefore disclosure of those six documents under that legislation cannot be regarded as an unauthorised disclosure of information within the meaning of that provision.
Documents 122 and 123 may be in a different category. If they are, the argument would go like this. On its face, Document 122 is a document which reveals communications between the addressees of the letter and their lawyer. It is made for the dominant purpose of obtaining legal advice. Reference is not made to Document 123 in Document 122 but its contents are relevant to the subject matter of Document 122. Both might be exempt from production in legal proceedings on the basis that they are subject to legal professional privilege unless that privilege has been waived.
If that is so then, even though the two documents have been produced to ASIC as it required, it could not be said that the addressees of the correspondence have waived legal professional privilege as a result. Production of the letter in response to a demand by ASIC as a regulatory body would not amount to waiver of any legal professional privilege that might be claimed by the clients in relation to the documents. Disclosure of those documents in those circumstances would not be inconsistent with the addressees’ otherwise wishing to claim the privilege. Whether it was the addressees of the correspondence, the lawyer or another who produced Documents 122 and 123, their compliance with ASIC’s requirement, would, in the absence of any other evidence, be read as being subject to their entitlement to claim legal professional privilege. It would follow that, as ASIC must not make any unauthorised disclosure of information produced to it, it would be taken to have received that information in confidence. Therefore, an obligation of confidence could be implied from the circumstances of the disclosure of Documents 122 and 123 to ASIC. Those two documents would be exempt under s 45.
There is one factor that this line of reasoning assumes in leading to the conclusion that Documents 122 and 123 would be exempt from access under the FOI Act. That factor relates to the source from which ASIC obtained production of the documents. If they were obtained from the addressees of the correspondence or their lawyer, I would conclude that their production in response to ASIC’s requirements would not be taken to be disclosure inconsistent with their wish to maintain their right to claim legal professional privilege. In certain circumstances, I would reach the same conclusion if the addressees or their lawyer had passed the correspondence to FOS in connection with any complaint made to FOS. If, for example, Document 124 were the covering letter for Documents 122 and 123, that might suggest that they were given to FOS strictly for the very limited purpose of giving it to the Panel and not for exchange with Utopia.
On the evidence that I have, I do not know the source from which ASIC obtained Documents 122 and 123. All that I am told is that they were compulsorily acquired by ASIC under notice but not from whom they were obtained. That places me in some difficulty. On balance, however, the nature of the communication suggests to me that it is more likely to have been obtained from the lawyer or the client rather than from a third party. In the circumstances, I am satisfied that Documents 122 and 123 were subject to legal professional privilege. Therefore, I am satisfied that I can draw an inference that the documents were given in circumstances in which they were given and received in confidence. The fact that they were compulsorily acquired by ASIC under notice plays no part in my reaching that decision. Therefore, I am satisfied that Documents 122 and 123 are exempt under s 45 of the FOI Act.
Any reasoning based on legal professional privilege does not apply to Documents 126, 127, 128 and 129. They are not communications between a client or clients and his, her or their lawyer. There is nothing on their face that satisfies me that they were prepared for the purpose of obtaining legal advice even though they were not communications between client and lawyer. Therefore, I am not satisfied that they are subject to legal professional privilege. There is no basis on which I am satisfied that the documents were produced, and received by ASIC, in circumstances importing an obligation of confidence. Therefore, I am not satisfied that Documents 126, 127, 128 and 129 are exempt under s 45 of the FOI Act.
Document 124 gives no hint of its origin or its authorship. Its text does not lead me to conclude that it would have been given to ASIC in confidence. Its description provided by ASIC in its Schedule of Documents suggests that Document 124 was a covering document for another document. The description of “Not for panel Do not exchange 23218 – Craddock” suggests that. That might persuade me that the other document was given in confidence but I do not have that other document. It does not satisfy me that Document 124 itself discloses any information that is confidential. Therefore, I am not satisfied that it is exempt from disclosure under s 45.
Document 125 is a draft Determination in matter 23218 including tracked changes and notes to the Panel. The same reasoning applies to it as to Document 124. It might have been confidential at one stage or it might not have been. I am not satisfied on the basis of the information in the document or of the affidavit material that it contains information that is capable of being confidential now that the matter has been resolved and FOS has made its determination. I am not satisfied that it is exempt under s 45.
Conditional exemption section 47C: deliberative processes
(Documents 14-19 and 29 and, in part, 3, 4, 37, 39, 85, 86, 87, 88, 89, 90, 91, 93, 103, 105,[27] 109, 111 and 112)
[27] I note that Document 105 is not included in the Table of exemptions claimed under ss 47C and 47E(d) at [21] of the Respondent’s Submissions but that it is included in ASIC’s Revised Schedule of Exempt Documents – 4 December 2015. Reference is made in that schedule to an exemption claimed under s 47E(d). Given that the parts marked on it are the same as Document 29, I have assumed that ASIC is claiming exemption in relation to it.
In both the written submissions and in Mr Povey’s Third Affidavit, the material supporting the claims for exemption is addressed to both ss 47C and 47E(d) of the FOI Act without distinction. I think it important to distinguish between the two, though. One, s 47C, is concerned only with the identification of documents by reference to the nature of the information that would be disclosed were access given under the FOI Act. Although it will become relevant in considering the public interest under s 11 of the FOI Act, no regard is had at this stage to any effect that disclosure of the information might have. In contrast, s 47E(d) is not concerned at all with the characterisation of the information in the documents. It is concerned only with the nature of the effect that disclosure of the documents under the FOI Act would have. If disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of the relevant agency, the exemption under s 47E(d) will apply and consideration would then need to be given to the public interest test in s 11.
A.Documents 3 (part), 4 (part), 14-19, 29, 85 (part), 85 (part), 86 (part), 103 (part) and 105 (part)
Documents 3 and 4 are draft responses to Utopia with tracked changes and comments made by Ms Joanna Bird and Mr Paul Eastment, Senior Manager. In the case of Document 3, Mr Povey describes those changes and comments as providing “opinions, advice and recommendations as to the content of the draft letter and broader deliberations regarding ASIC’s ongoing enquiries into the conduct of the Applicant.”[28] He makes a similar statement in relation to Document 4.[29]
[28] Third Affidavit at [67]
[29] Third Affidavit at [68]
I agree that the tracked changes raise questions and issues to be addressed in the draft responses and that they relate to ASIC’s then ongoing enquiries into Utopia’s conduct. The IC Guidelines refer to an early decision of the Tribunal in Re JE Waterford and Department of Treasury (No 2)[30] (Waterford No. 2) when, in referring to s 47C’s predecessor, s 36 of the FOI Act, described the documents coming within its compass in the following terms:
“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.”[31]
[30] [1984] AATA 67; Deputy President Hall and Mr Prowse and Dr CA Hughes, Members
[31] [1984] AATA 67 at [58] and see IC Guidelines at [6.58]
Putting aside the omission of public interest factors from s 47C, the content of s 47C is consistent with that in s 36. Having regard to that description of the type of documents that come within those described in ss 36 and 47C and, more importantly, to the words of s 47C itself, I am satisfied that those passages marked as tracked changes in Documents 3 and 4 do meet the description of documents in s 47C(1). In particular, those passages disclose matter in the nature of and opinion or recommendation that has taken place in the course of ASIC’s deliberative processes. Those deliberative processes do not relate to major policy issues facing ASIC but to those involved in the functions of responding to correspondence it has received in relation to those functions.
Documents 14 to 17 and Document 19 are drafts of the letter to be written by ASIC to Senator Smith. I note that Mr Povey describes all of Documents 14-19 as draft letters to Senator Smith but that ASIC’s Revised Schedule of Exempt Documents – 4 December 2015 describes Document 18 as a final letter to Senator Smith. In its more detailed description, though, Document 18 is described as a draft letter. On examination, Document 18 has the hallmarks of a final letter although it lacks a letterhead. It is dated 26 May 2014 and reads as a final letter. The absence of a letterhead is not determinative one way or the other for I have no evidence whether ASIC’s computer systems automatically printed its letterhead or whether letterhead was still manually fed into the printer before printing a final version of a letter. What persuades me that Document 18 is a draft is a reference in Document 19 to ASIC’s letter to Senator Smith dated 27 May 2014. The reference to that letter is made in a context that is consistent with the contents of Document 18. As draft letters, I find that disclosure of the matter in Documents 14-19 would lead to disclosure of matter in the nature of deliberations that have taken place in the course of formulating a response to Senator Smith. Those deliberations are not directed to the development of policy but are directed to a response to a Senator and so are made in the course of ASIC’s functions.
Document 29 is a draft of a different letter to Senator Smith. For the reasons I have given in relation to Documents 14 to 19, I am satisfied that Document 29 is a document that is conditionally exempt within the meaning of s 47C of the FOI Act. As those parts of Documents 103 and 105 seek exemption for the same draft of the letter to Senator Smith, I find those parts are also conditionally exempt under s 47C.
ASIC seeks exemption for the fifth and sixth paragraphs on the second page of a draft letter to Utopia and the first four paragraphs on the third page. That letter is Document 85. These paragraphs contain tracked changes on the second page and insertions on the second and third pages. For the same reasons, I find that Document 85 is conditionally exempt under s 47C. So too is Document 86, which is in the same terms as Document 85.
B. Document 87 (part)
Document 87 is a chain of email correspondence between the office of the Assistant Treasurer and ASIC staff beginning on 9 April 2014 and concluding on 16 April 2014. The subject of the emails is “Letter re Debra Whiting”. Exemption is claimed for parts of the emails being those parts in which Mr Povey states that they contain opinions, advice and recommendations as to how to engage with Utopia and refers to discussions with Senator Smith.[32] I agree with Mr Povey’s description of the passages for which exemption is claimed. All but the last exchange in the email chain is replicated in Document 22.
[32] Third Affidavit at [28]
Exemption has been claimed for two passages on the second page of Document 87. Both passages reflect the author’s opinion on a matter that is involved in ASIC’s functions. Those opinions are directed to ASIC’s approach to those matters. They are not necessarily directed to weighing up competing positions or arguments but they are directed to the approach that ASIC had been taking and that it might take. In light of that conclusion, the two passages come within the description in s 47C(1) and so are conditionally exempt. The same conclusion applies to the only passage for which exemption is claimed in Document 22 and which is the same as the second passage in Document 87.
C. Document 37
Document 37 is a is a copy of an internal memorandum dated 10 February 2014 from Ms Zoe Irwin to Mr Tim Mullaly with a copy to Mr Trevor Clarke and Mr Abramo Martinelli. The subject of the memorandum is “Re Utopia Financial Services Pty Ltd”. Exemption is sought for part of a paragraph beginning on the last two lines of page 1 and extending to the first two and a half lines of page 3. Exemption is also sought for the third, fifth and seventh paragraphs on page 2 of Document 37. Those paragraphs, or part paragraph in the case of one of them, are concerned with the way in which ASIC should view certain matters regarding the progress of its surveillance of Utopia and how it should best deal with a situation concerning Utopia’s behaviour. I am satisfied that these are matters that are deliberations taking place within ASIC with regard to the way in which it should carry out its functions. They are conditionally exempt under s 47C.
D. Documents 39 and 88
Document 39 is a copy of an internal ASIC memorandum marked “Memo – In confidence” from Ms Zoe Irwin to Mr Trevor Clarke, Ms Joanna Bird and Ms Louise Macaulay and copied to Mr Andrew Davison. It is dated 28 May 2014 and headed “Re Utopia Financial Services Pty Ltd: briefing update and strategic approach”. The memorandum contains the status of ASIC’s surveillance of Utopia at the time. As Mr Povey said in his Third Affidavit, the memorandum contains information obtained in the surveillance as well as options and recommendations as to further steps to be taken by ASIC. Document 88 includes Document 39 as well as a covering email from Ms Zoe Irwin to Ms Julie Fewster, Mr Craig Turner and Mr Murray Robertson with copies to Mr Andrew Davison and Mr Trevor Clarke.
ASIC has claimed exemption under s 47C for those passages which appear in both Documents 39 and 88 and which begin following the words “Next Steps” on page 3 and, with the exception of the words “Approach 1” and “Approach 2”, conclude on page 5 immediately before the words “Background – Timeline of Surveillance Events”. I am satisfied that these passages reveal ASIC’s evaluation of various facts that it had obtained, assessment of various outcomes on those facts and of various paths that might or might not be available to it as the regulator. I am satisfied that these passages are concerned with matters within the scope of ASIC’s functions and are properly regarded as revealing ASIC’s deliberative processes on those matters. Therefore, the relevant passages in Documents 39 and 88 are conditionally exempt under s 47C.
E. Document 89
Document 89 comprises a chain of emails described in Attachment B to these reasons. The first in the chain is written by Mr Gary Bertram to Ms Zoe Irwin asking for material regarding the complaints made about Utopia to FOS and any of FOS’s determinations. The second and last email in the chain is Ms Irwin’s response to Mr Bertram. Attached to her email is a determination of the FOS numbered 23218 dated 16 March 2012 together with a supplementary decision dated 8 May 2012. The decisions relate to a dispute arising from advice provided to a complainant regarding the establishment of a self-managed superannuation fund. The complainant and adviser are not identified in the decision.
Ms Irwin’s email, I find, sets out an agenda setting out strategies or courses that ASIC might adopt in relation to its investigation and consideration of Utopia and its conduct. ASIC seeks exemption of the passage following “Overview of the matter” and ending immediately before “FOS Material”. It also seeks exemption for the third sentence of the paragraph following the heading “FOS Material”. They reveal various strategies available to ASIC and issues that might be relevant in considering their relative merits. These are matters within the scope of ASIC’s functions and are properly regarded as revealing ASIC’s deliberative processes on those matters. Therefore, the relevant passage in Document 89 for which exemption is claimed by ASIC is conditionally exempt under s 47C.
F. Document 90
Document 90 is Mr Bertram’s reply to Ms Irwin and is headed “Re: Utopia – Agenda and FOS Info”. He raises the issue of the regulatory outcome that ASIC might be seeking. ASIC has claimed exemption for the following four and final paragraphs of his email. I am satisfied that they reveal matters relevant to ASIC’s regulatory functions and Mr Bertram’s ponderings on those matters. I am satisfied that the ponderings are part of the deliberative process that he was undertaking and sharing with Ms Irwin as part of ASIC’s functions. Therefore, Document 90 is conditionally exempt under s 47C.
Personal privacy: section 47G
Section 47G
Sections 47G(1) provides:
“A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation
or undertaking, in a case in which the disclosure of the information:
(a)would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b)could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.”
Section 47(2) provides that that s 47(1) does not apply to trade secrets or other information to which s 47 applies. Section 47(1) does not have effect in relation to a request by a person for access to a document by reason only of inclusion in the document of information concerning that person in respect of his or her business or professional affairs. If the request is made by the proprietor of an undertaking or an organisation or a person acting on his, her or its behalf, s 47(1) will not have effect in relation to that request by reason only of the inclusion in the document of information relating to that proprietor or that organisation. That is the effect of s 47(3).
Scope of section 47G
The substance of s 47G(1) mirrors that previously in the FOI Act of s 43(1)(c) and the qualifications in ss 47G(2), (3) and (4) find their counterparts in the previous provisions of ss 43(2), (3) and (4). Where there has been a change is in the classification of s 47G as a conditional exemption. That introduces separate consideration of the public interest under s 11A and raises the question whether access to the document would, at the time, be contrary to the public interest. Previously and before the introduction of either ss 11A or 47G, s 43(1)(c) required a consideration of the public interest. It did so by virtue of requiring there to be a reasonable expectation that disclosure under the FOI Act would “unreasonably affect that person adversely …” in one or other of the stated ways. Whether there would be that outcome required consideration to be given not only to the effect of disclosure upon the person’s lawful business or professional affairs or those of an organisation but to whether that was a reasonable effect given whatever might be the public interest in disclosure. Given that, in enacting s 47G(1), Parliament has chosen not to move away from the words of s 43(1)(c), it seems to me that it has intended to retain all of the nuances inherent in the word “unreasonably” when considering what would, or could reasonably be expected to be, the effect of disclosure of a document under the FOI Act. In view of that, I have returned to the principles established by the courts regarding the interpretation of s 43(1)(c).
A. Characterisation of information that would be disclosed
The first issue to decide is whether the document comes within the terms of s 47G(1). In that case, that means deciding whether its disclosure under the FOI Act would disclose information concerning the business, commercial or financial affairs of an organisation. If it would, it is then necessary to consider whether disclosure would have one or other of the effects set out in s 47G(1)(a) or (b) or, as previously enacted, ss 43(1)(c)(i) or (ii).
The word “affair” is a reference to “… a concern, matter or thing to be done. … An event or connected series of events. …”.[199] In s 47G(1)(a), the type of “affairs” to which reference is made is qualified by their being “business or professional” in relation to a person and the “lawful business, commercial or financial affairs” in relation to an organisation or undertaking.
[199] Chambers
That takes me to the words that qualify the word “affairs”. “Business” carries with it connotations of trade of goods and services as well as that of, among others, “… a regular occupation, trade or profession. … the things that are one’s proper or rightful concern. …”. In this context, the adjective “Commercial” means “… 1 relating to, engaged in or used for commerce. 2 profitable; having profit as the main goal …”. “Commerce” means “1a the buying and selling of commodities and services; b trade, including banking and insurance …”. “Financial” is something “… relating to finance or finances …” and so to “… money affairs and the management of them …”.[200]
[200] Chambers
To some extent, the meaning of the words overlap but I think it important to distinguish between the “business or professional affairs” of a person and the “business, commercial or financial affairs” of an organisation or undertaking for two reasons. The first is that the distinction between the two must mean that the reference to a “person” is a reference to an individual rather than to a “person” in its wider sense, which includes a body politic and a body corporate as well as an individual.[201]
[201] Acts Interpretation Act 1901, s 2C
The second goes to the scope of the exemption in s 47G(1)(a). The word “business” has the same meaning in relation both to a person and to an organisation or undertaking but the omission of any reference to “commercial or financial affairs” in relation to a person indicates its limits. Unless commercial or financial information can be classified as concerning a person in respect of his or her business or professional affairs - and it can be - it is not exempt. That is not the case for an organisation or undertaking.
The meaning of what a “business” entails is one thing but it is another to identify whether a particular activity, or series of activities, constitutes a business. Whether it does involves:
“… questions of fact and degree. Although both parties referred me to comments made in decided cases, each of the cases depends upon its own facts and in the ultimate is unhelpful in the resolution of some other and different fact situation.
There is no one factor that is decisive of whether a particular activity constitutes a business. As Jessel MR said in the famous dictum in Erichsen v Last (1881) 8 QBD 414 at 416:
There is not, I think, any principle of law which lays down what carrying on trade is. There are a multitude of things which together make up the carrying on of trade.
Profit motive…, scale of activity, whether ordinary commercial principles are applied characteristic of the line of business in which the venture is carried on …, repetition and a permanent character, continuity …, and system, are all indicia to be considered as a whole, although the absence of any one will not necessarily result in the conclusion that no business is carried on.”[202]
The scale of the activity need not be large although that will be a factor in determining whether an activity is a hobby rather than a business.[203]
[202] Evans v Federal Commissioner of Taxation [1989] FCA 205; (1989) 20 ATR 922; 89 ATC 4540 at [96]-[98]; 939; 4554-4555 per Hill J
[203] Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 37 FLR 310; 79 ATC 4,261; 9 ATR 873
There is a question whether information in respect of “business … affairs”, or even of “commercial or financial affairs” would encompass information relating to steps taken before a person, organisation or undertaking could be said to be carrying on a business. It is a question that has been addressed in other contexts[204] and may need to be kept in mind in the context of s 47G(1)(a) of the FOI Act. It is not, however, a question that arises in this case.
[204] See, for example, Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 37 FLR 310; 79 ATC 4,261; 9 ATR 873 at [23]; 313; 316; 4,266; 878 per Bowen CJ and Franki J
Once a person is carrying on or engaged in a business so that he or she can be said to have “business … affairs”, matters preparatory to conducting or being engaged in that business may well be able to be categorised as “being in respect of his or her business … affairs” or, in the case of an organisation or undertaking “concerning the business … affairs” of that organisation or undertaking. That follows from the words of connection adopted in s 47G(1)(a) between the person and the business affairs and between the organisation or undertaking and its business affairs. In the former, the words of connection are “in respect of”. That is an expression denoting:
“… a relationship or connexion between two things. In State Government Insurance Office v Crittenden … Taylor J quoted, with evident approval, the remarks of Mann CJ in Trustees Executors & Agency Co Ltd v Reilly …, ‘The words “in respect of” are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer’. … But, as with other words or expressions, the meaning to be ascribed to ‘in respect of’ depends very much on the context in which it is found.”[205]
In the case of an organisation or undertaking, the expression chosen is that of “concerning”:
“… ‘Concerning’ has been defined as ‘regarding’, ‘touching’, ‘in reference or relation to’, and ‘about’. It is, accordingly, a word of wide import …”[206]
[205] State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549; 26 ALR 341; 53 ALJR 752; Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at [15]; 561; 351; 756 per Mason J and see also Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45; 85 ALR 173; 63 ALJR 392; Brennan, Deane, Dawson, Toohey and Gaudron JJ at [5]; 47; 175; 393 per Brennan, Deane and Dawson JJ
[206] O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285 at 303 per Rolfe J
If the finding is made that there is no business but only the steps preparatory to there being a business, thought will have to be given to whether the information can be characterised as “being in respect of his or her business … affairs” or, in the case of an organisation or undertaking “concerning the business … affairs” of that organisation or undertaking. Even if it cannot be characterised in that way, that does not necessarily mean that a document is not exempt in respect of that information. In the case of an organisation or undertaking, it may be that the information is in connection with its financial, if not its commercial, affairs. There is no latitude to do that in the case of an individual for the exemption extends only to business affairs and not to commercial or financial affairs but the information may be exempt under s 47F in relation to personal information.
B.“Would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her business affairs …”
At [208]-[210] above, I have considered the principles that are relevant in considering the interpretation and application of the expression “would, or could reasonably be expected”. In the context of the predecessor to s 47G, s 43, the authorities show that the words are interpreted according to their ordinary meaning:
(1)“… [T] they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) [or s 43(1)(c)(i), which is to like effect in this regard] as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J.”[207]
(2)“… stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[208]
[207] Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 at [29]; 190; 106 per Bowen CJ and Beaumont J
[208] Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 at [12]; 196; 112 per Sheppard J
Section 47G requires that disclosure of a document would, or could reasonably be expected to “unreasonably affect” a person adversely in respect of his or her business affairs or an organisation or undertaking in respect of its lawful, business, commercial or financial affairs. When this same expression was considered in the related context of s 43 of the FOI Act as it was previously enacted, the following factors were identified as relevant when considering whether disclosure under the FOI Act would or could reasonably be expected to “unreasonably affect”:
“If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 441.”[209]
[209] Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163; 16 AAR 28 at [52]; 125; 178; 42 per Davies, Wilcox and Einfeld JJ
That statement was made by the Full Court of the Federal Court in the context of s 43(1)(c)(i) of the FOI Act. As I have said, there is no difference of substance between the terms of s 43 as it was previously drafted and s 47G as it appears in the FOI Act in its current form. Where the difference lies is in the characterisation of the exemption in s 47G as a conditional exemption and the addition of s 11A(5) requiring access to be given to a conditionally exempt document unless “access to the document at that time would, on balance, be contrary to the public interest.” Does that difference mean that the principles guiding the assessment of what would “unreasonably affect” the person in the context of s 43(1)(c) are no longer relevant in the assessment of the same question under its modern equivalent in the form of s 47G(1)(a)? In particular, does it mean that public interest is no longer a factor to which regard is had in deciding whether a person would be unreasonably affected by disclosure under the FOI Act or that it is a factor but modified in some way? I looked at this issue in considering the public interest test in ss 11A and 11B.[210]
[210] See [185]-[187] above
Consultation
Section 27 provides for consultation when a request is made for information of a certain type and the agency or Minister reaches a view on a particular issue. The information that is requested must be either information about a person’s business or professional affairs or information about the business, commercial or financial affairs of an organisation or undertaking.[211] The view that must be reached is that:
[211] FOI Act; ss 27(1)(a) and (2)
“it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned) might reasonably wish to make a contention (the exemption contention) that:
(i) the document is exempt under section 47 (trade secrets etc.); or
(ii)the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).”[212]
In reaching that view, regard must be had to the matters specified in s 27(3), which are:
“(a) the extent to which information is well known;
(b)whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;
(c)the availability of the information from publicly accessible sources;
(d)any other matters that the agency or Minister considers relevant.”
[212] AAT Act; s 27(1)(b)
The consultation provisions do not mean that the agency or Minister must consult the person, organisation or undertaking on each occasion. What they do mean is that an agency or Minister must generally not decide to give access to a document unless the person or organisation has been given a reasonable opportunity to make submissions in support of the exemption contention and the agency or the Minister has regard to any submissions so made.[213] That obligation only applies if it is not reasonably practicable to give that reasonable opportunity.[214]
[213] FOI Act; s 27(4)
[214] FOI Act; s 27(5)
DOCUMENTS IN RELATION TO WHICH EXEMPTION IS CLAIMED
The following Table sets out a description of the documents, or parts of documents, for which exemption is claimed by ASIC. It is adapted from the table at ST8 of the ST documents and the Respondent’s Submissions lodged on 21 December 2015. It outlines the particular parts for which exemption is claimed by ASIC and summarises my decision in relation to each exemption. Unless otherwise indicated, the decision relates to the specific parts of the document, or to the whole document as the case may be, in relation to which ASIC has claimed exemption. Where I have decided that a document, or part of a document, is exempt under one exemption claimed for it but not under others, I have decided that the document is exempt from access under the FOI Act.
Doc No.
Date
Description
Page Nos.
ASIC’s decision:
Exempt (E)
Release (R
Partial Release (PR)Exemption
Tribunal’s Decision:
Exempt
Not exempt
Varied3
30 September 2014
Draft letter to Utopia marked “Draft only – in confidence” including changes tracked into the document and comments marked up and attributed to “JB” and “PE”.
8
PR
Exempt from release are marked up for comment boxes by: Joanna Bird (JB) which are management input to the drafting of the letter; and PE which are legal advice regarding the Corporations Act provisions relevant to management investment schemess 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)4
30 September 2014
Draft letter to Utopia marked “Draft only – in confidence” including changes tracked into the document and comments marked up and attributed to “JB”.
8
PR
Exempt from release are marked up comment boxes by: Joanna Bird (JB) which are management input to the drafting of the letter)s 47C
s 47E(d)
Exempt under s 47C
Not exempt
under s 47E(d)14
Undated
Draft CUU Response to Senator Dean Smith
3
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)15
21 May 2014
Draft letter to Senator Smith
3
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)16
21 May 2014
Draft letter to Senator Smith including changes tracked into the document
2
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)17
Undated
Draft letter to Senator Smith including changes tracked into the document and comments marked up and attributed to “JB”
3
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)18
26 May 2014
Draft letter to Senator Dean Smith
3
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)19
X August 2014
Draft letter to Senator Smith
2
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)22
Various between 24 March and 9 April 2014
Emails between: the offices of Members of Parliament; those offices and ASIC; and ASIC staff regarding communications with the Members of Parliament
19
PR
Exempt from release is first email from Joanna Bird to Zoe Irwin which records conversation between Joanna Bird and Senator Smiths 47C (addressed in Affidavit material)
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)29
1 August 2014
Draft reply letter to Senator Smith
2
E
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)37
10 February 2014
Memo from Zoe Irwin to Tim Mullaly, Senior Executive Leader Enforcement, cc to Trevor Clarke and Abramo Martinelli re Utopia
3
E
s 47C (addressed in Affidavit material)
s47E(d)Exempt under s 47C
Exempt under s 47E(d)
39
28 May 2014
Memorandum marked “In confidence” from Zoe Irwin to Trevor Clarke, Joanna Bird and Louise Macaulay with a copy to Andrew Davison regarding Utopia: briefing update and strategic approach
7
PR
Exempt from release are: whole of sections headed “Next Steps”, “Approach 1” and “Approach 2”; and
from the table under heading “Background – Timeline of Surveillance Events”, the second column of 23rd row.s 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
45
9 October 2013
File note regarding contact with the FOS regarding court proceedings against Utopia for the purpose of enforcing the FOS determination
1
E
s 45
s 47E(d)
s 47G(1)Varied
Not exempt under s 45 in relation to the whole of the first sentence (other than the telephone number) and the first two dash points.Otherwise exempt under s 45
Not exempt under s 47E(d) 45 in relation to the whole of the first sentence (other than the telephone number) and the first two dash points.Otherwise exempt under s 47E(d)
47
8 October 2013
Email from Sarah Edmondson to Abramo Martinelli, Zoe Irwin and Clare McCarthy with copy to Michele Whittle re: Utopia: for discussion at today’s meeting.
2
PR
Exempt from release are:
Words in brackets in second paragraph; third paragraph under Matter 1; and final sentence of first paragraph under Matter 2s 45
s 47E(d)Exempt under s 45
Exempt under s 47E(d)
48
8 October 2013
Emails:
∙ a copy of the email that is document; and
∙Zoe Irwin to Sarah Edmondson copy to Abramo Martinelli, Clare McCarthy and Michele Whittle
2
PR
Release email from Zoe Irwins 45
s 47E(d)Exempt under s 45
Exempt under s 47E(d)
49
8 October 2013
Email Sarah Edmondson to Zoe Irwin with copy to Abramo Martinelli, Clare McCarthy and Michele Whittle re Utopia: FOS contact etc
PR
Exempt from release are final two paragraphs which refer to confidential information provided to ASIC by a third partys 47E(d)
Exempt under s 47E(d)
50
8 October 2013
Emails:
· a copy of email that is document 49; and
· Clare McCarthy to Sarah Edmondson copy to Abramo Martinelli, Michele Whittle and Zoe Irwin
2
PR
Exempt from release are final two paragraphs which refer to confidential information provided to ASIC by a third party and the response email from Clare McCarthy which refers to documents that appear to have been produced to ASIC in confidence and steps to take in analysing those documentss 47E(d)
Exempt under s 47E(d)
55
15 October 2013
File note regarding telephone attendance with FOS
1
E
s 45
s 47E(d)
s 47G(1)Not exempt under s 45 as to the heading of the email
Otherwise exempt under s 45Not exempt under s 47E(d) as to the heading of the email
Otherwise exempt under s 47E(d)Decision not made under s 47G(1)
73
11 December 2013
Email from Abramo Martinelli to Meredith Dodds with blind copy to Abramo Martinelli regarding request for advice regarding definition of “financial product”
1
E
s 42(1)
Exempt under s 42(1)
76
23 December 2013
Email Zoe Irwin to Abramo Martinelli with no content save from Zoe Irwin’s mobile phone number with a note to feel free to call if Abramo needs anything
1
PR
Exempt from release are staff personal detailsS 47F
Exempt under s 47F
77
23 December 2013
Part of email chain from Abramo Martinelli to Zoe Irwin advising the dates he was on leave and details of his mobile number
1
PR
Exempt from release are staff personal detailss 47F
Exempt under s 47F
81
6 February 2014
Email from Trevor Clarke to Grant Moodie with copies to Louise Macaulay, Pauline Kaufman, Zoe Irwin and Joanna Bird regarding Utopia and attaching a draft letter to Utopia
5
E
s 42(1)
Exempt under s 42(1)
82
6 February 2014
Email chain beginning with email that is Document 81 and followed by an email from Grant Moodie to Trevor Clarke with copies to Louise Macaulay, Pauline Kaufman, Zoe Irwin and Joanna Bird re Utopia – a draft letter for review please
5
E
s 42(1)
Exempt under s 42(1)
83
3 & 4 February 2014
Emails from:
(1) Zoe Irwin to Louise Macaulay and Joanna Bird with copy to Trevor Clarke sent on 3 February 2014 regarding Utopia and attaching draft letter for consideration, discussing legal advice from ASIC’s Chief Legal Office (CLO) and attaching draft letter to Utopia and memorandum from Zoe Irwin to Joanna Bird, Louise Macaulay and Tevor Clarke regarding Utopia dated 3 February 2014 and headed “Memo – Sensitive and in Confidence for Internal Purposes”; and
(2) Zoe Irwin to Abramo Martinelli responding but without substantive content.
7
PR
Exempt from release are:
in email, fourth paragraph setting out CLO advice; and
in attached draft letter to Utopia, references to CLO advices 42(1)
Exempt under s 42(1)
84
4 February 2014
Emails regarding FOS/COSL membership and relating generally to licensees who are members of both FOS and COSL from:
(1) Nina Wan to Zoe Irwin and Sarah Edmondson with copies to Domingos Moraes, Clare McCarthy, Trevor Clarke and Andrew Davison sent 28 January 2014;
(2) Zoe Irwin to Nina Wan with copies to Andrew Davison, Clare McCarthy, Domingos Moraes, Sarah Edmondson and Trevor Clarke sent 28 January 2014;
(3) Domingos Moraes to Zoe Irwin with copies to Nina Wan, Andrew Davison, Clare McCarthy, Sarah Edmondson and Trevor Clarke sent on 4 February 2014;
(4) Zoe Irwin to Domingos Moraes with copies to Andrew Davison, Clare McCarthy, Nina Wan, Sarah Edmonson and Trevor Clarke sent on 4 February 2014
3
E
s 45
s 47E(d)Not exempt under s 45
Not exempt under s 47E(d)
85
5 February 2014
Email from Zoe Irwin to Trevor Clarke and Pauline Kaufman re 20140205 – Third Draft Letter to Utopia re AD(JR) Act.docx attaching draft of letter to Utopia with tracked changes by JB. This is a draft of a letter sent to Utopia being Document 13 and over which exemption is not claimed
6
PR
Exempt from release is from the attached draft letter being the text commencing below heading “Fact base” and ending at the conclusion of the sixth paragraph on the third page, which is significantly marked up with management comment on the draft letters 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)86
5 February 2014
Email from Zoe Irwin to Joanna Bird and Louise Macaulay with copies to Pauline Kaufman and Trevor Clarke re 20140205 – Third Draft Letter to Utopia re AD(JR) Act.docx attaching draft of letter to Utopia with tracked changes by JB. This is a draft of a letter sent to Utopia being Document 13 and over which exemption is not claimed
6
PR (exempt from release is, in the attached letter, the same extract as is exempt from document 85)
s 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)87
9 to 16 April
Chain of emails among ASIC officers and between ASIC officers regarding email correspondence received from Senator Dean Smith’s Chief of Staff and emails between ASIC officers and the Chief of Staff
6
PR
Exempt from release are:
as with Document 22, email from Joanna Bird to Zoe Irwin on 9 April 2014 which records conversation between Joanna Bird and Senator Smith; and
second paragraph of email of email from Zoe Irwin to Trevor Clarke on 14 April 2014, which discusses possible future surveillance stepss 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
88
10 June 2014
8
PR
The attachment is the same as Document 39 and so the same extract of that attachment is exempt from release – see Document 39s 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
89
16 June 2014
Emails from:
(1) Gary Bertram to Trevor Clarke and Zoe Irwin with copies to Antony Cowan, Murray Robertson and Julie Fewster re Utopia; and
(2) Zoe Irwin to Gary Bertram with copies to Antony Cowan, Julie Fewster, Murray Robertson, Trevor Clarke and Andrew Davison re Utopia and FOS Info attaching FOS decision and supplementary decision 23218
50
PR
Exempt from release are, from the email from Zoe Irwin, Sections 2 to 5 and the third sentence of the paragraph following Section 5s 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
90
16 June 2014
Email from Gary Bertram to Zoe Irwin with copies to Antony Cowan, Julie Fewster, Murray Robertson, Trevor Clarke, Andrew Davison and Natalie Durr re Utopia – Agenda and FOS Info
1
PR
Exempt from release are the third to sixth paragraphss 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
91
16 June 2014
Emails from:
(1) Gary Bertram to Trevor Clarke and Zoe Irwin with copies to Antony Cowan, Julie Fewster, Murray Robertson, , Andrew Davison and Natalie Durr re Utopia – Agenda and FOS Info
(2) Zoe Irwin to Gary Bertram with copies to Antony Cowan, Julie Fewster, Murray Robertson, Trevor Clarke, Andrew Davison and Natali Durr re Utopia – Agenda and FOS Info
2
PR
Exempt from release is the whole document save for that part of the email from Gary Bertram which is to be released at Document 90s 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
93
2 July 2014
Emails from:
(1) Gary Bertram to Julie Fewster, Murray Robertson, Antony Cowan with copies to Zoe Irwin and re Utopia visit sent 1 July 2014; and
(2) Zoe Irwin to Gary Bertram, Antony Cowan, Julie Fewster, Murray Robertson and Trevor Clarke re Utopia Visit and FOS Info attaching FOS decision and supplementary decision 23218
4 + attachment of 2 A3 pages
PR
Exempt from release all except email that is the same as Document 92s 45 regarding summary of documents on notice from FOS and COSL
s 47C
s 47E(d)Varied
Under s 45:
(1) affirm the decision in relation to the final paragraph of the second, or latest, email following the informal signature block and preceding the formal information at the foot of the email is exempt; and
(2) otherwise set aside the decision and find the remaining passages of the second, or latest, email not exempt under s 45.Exempt under s 47C
Exempt under s 47E(d)
94
2 July 2014
Email from Gary Bertram to Zoe Irwin with copies to Antony Cowan, Julie Fewster, Murray Robertson and Trevor Clarke re Utopia Visit
1
PR
Exempt from release second paragraph which reveals some issues ASIC considers in pursuing actionss 47E(d)
Exempt under s 47E(d)
96
2 July 2014
Emails from:
(1) Gary Bertram to Zoe Irwin with copies to Antony Cowan, Julie Fewster, Murray Robertson and Trevor Clarke re Utopia Visit
(same as Document 94); and(2) Zoe Irwin to Gary Bertram with copies to Antony Cowan, Julie Fewster, Murray Robertson and Trevor Clarke re Utopia Visit
1
PR
Exempt from release second paragraph of the email which is Document 94s 47E(d)
Exempt under s 47E(d)
103
31 July 2014
Email from Murray Robertson to Trevor Clarke re 2014081- Ltr draft reply to SenatorSmithdocx (D160614) sending link to2014081 – Ltr draft reply to Senator Dean Smithdocx (D160614) from Objective
3
PR
Exempt from release attached draft letter to Member of Parliaments 47C
s 47E(d)Exempt under s 47C
Not exempt
under s 47E(d)105
1 August 2014
Email Murray Robertson to Trevor Clarke re: 2014081 – Ltr draft reply to Senator Smithdocx (D160614) sending link to document saved in Objective which is draft letter to Senator Dean Smith responding to his letter dated 21 July 2014
3 +
attachment of 2 pages
PR
Exempt from release attached draft letter47E(d)
Exempt under s 47C
Not exempt
under s 47E(d)109
12 August 2014
Emails from:
(1) Zoe Irwin to Trevor Clarke with copies to Andrew Davison re Utopia conversation file note;
(2) Trevor Clarke to Joanna Bird and Louise Macaulay and copied to Zoe Irwin re: Fw: Utopia conversation file note; and
(3) Joanna Bird to Trevor Clarke with copies to Louise Macaulay and Zoe Irwin re: Fw Utopia conversation file note
2
E
s 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
111
12 and 13 August 2014
Emails re Utopia Senate Estimates briefing from:
(1) Zoe Irwin to Joanna Bird and Louises Macaulay with a copy to Trevor Clarke and Clare McCarthy sent on 12 August 2014 attaching Senate Estimates briefing; and
(2) Joanna Bird to Zoe Irwin and Michele Whittle with a copy to Clare McCarthy, Louise Macaulay, Trevor Clarke and Robert Rush sent on 13 August 2014
4
PR
Exempt from release is email from Joanna Birds 47C
s 47E(d)Exempt under s 47C
Exempt under s 47E(d)
112
12 to 14 August 2014
Emails re Utopia Senate Estimates briefing from:
(1) Zoe Irwin to Joanna Bird and Louises Macaulay with a copy to Trevor Clarke and Clare McCarthy sent on 12 August 2014 attaching Senate Estimates briefing; and
(2) Joanna Bird to Zoe Irwin and Michele Whittle with a copy to Clare McCarthy, Louise Macaulay, Trevor Clarke and Robert Rush sent on 13 August 2014;
(3) Robert Rush to Joanna Bird, copy to Clare McCarthy, Louise Macaulay, Michele Whittle, Trevor Clarke, Zoe Irwin and Matthew Abbott sent 14 August 2014;
(4) Clare McCarthy to Joanna Bird, Louise Macaulay, Michele Whittle, Trevor Clarke and Zoe Irwin sent 14 August 2014;
(5) Trevor Clarke to Clare McCarthy with copies to Joanna Bird, Louise Macaulay, Michele Whittle, Zoe Irwin and Felice Thomas sent 14 August 2014
(6) Trevor Clarke to Clare McCarthy with copies to Joanna Bird, Louise Macaulay, Michele Whittle, Zoe Irwin and Felice Thomas sent 14 August 2014
4
s 47C
s 47E(d)Varied
Under s 47C by setting aside the decision in relation to the email from Mr Robert Rush to Ms Joanna Bird but otherwise affirming the decisionExempt under s 47E(d)
113
27 August 2014
Email Clare McCarthy to Joanna Bird and Louise Macaulay with copies to Felice Thomas, Zoe Irwin and Trevor Clarke re PJC briefings attaching various Objective links including those to:
(1) 2014 08 27 – PJC briefing – EDR schemes and operation of FOS – August 2014; and
(2) 2014 08 27 – PJC briefing – Utopia financial services – August 2014
6
PR
Exempt from release are:
fourth paragraph in covering email; and
attachment entitled “PJC Briefing – EDR schemes and operation of FOS” which is about issues unrelated to Utopia and does not refer to Utopias 47E(d)
Exempt under s 47E(d)
114
27 August 2014
Emails from:
(1) Clare McCarthy to Joanna Bird and Louise Macaulay with copies to Felice Thomas, Zoe Irwin and Trevor Clarke re PJC briefings; and
(2) Louise Macaulay to Clare McCarthy with copies to Felice Thomas, Joanna Bird, Trevor Clarke and Zoe Irwin re PJC briefings
2
PR
Exempt from release is fourth paragraph of email from Clare McCarthy which is the same as Document 113s 47E(d)
Exempt under s 47E(d)
115
22 October 2014
Emails from:
(1) Clare McCarthy to Joanna Bird and Louise Macaulay with copies to Felice Thomas, Zoe Irwin and Trevor Clarke re PJC briefings (same as Document 113); and
(2) Louise Macaulay to Clare McCarthy with copies to Felice Thomas, Joanna Bird, Trevor Clarke and Zoe Irwin re PJC briefings (same as Document 114);
(3) Zoe Irwin to Louise Macaulay with copies to Felice Thomas, Joanna Bird and Trevor Clarke; and
(4) Clare McCarthy to Zoe Irwin with copies to Louise Macaulay, Felice Thomas, Joanna Bird and Trevor Clarke
2
PR
Exempt from release is the fourth paragraph of email from Clare McCarthy which is the same as Document 113s 47E(d)
Exempt under s 47E(d)
116
7 October 2014
Emails from:
(1) Zoe Irwin to Clare McCarthy with copies to Joanna Bird and Trevor Clarke; and
(2) Clare McCarthy to Zoe Irwin
1
PR
Exempt from release first and second paragraphs of email from Zoe Irwin to Clare McCarthys 47E(d)
Exempt under s 47E(d)
122
13 August 2009
Letter from law firm to client with subject line “Review of your position and rights with respect to the Seapines Property Trust Investment in John Street, Cottesloe”
2
E
s 45
s 47E(d)
s 47G(1)Exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
123
undated
Document to Shelley Craddock referring to transfer of units from Benchtop Productions Pty Ltd ATF Shelley Craddock Superannuation Fund to Shelley Craddock
1
E
s 45
s 47E(d)
s 47G(1)Exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
124
undated
Handwritten note for panel – Do not exchange – 23218 – Craddock
1
E
s 45
s 47E(d)Not exempt under s 45
Not exempt under s 47E(d)
125
2 December 2011
Draft determination in matter 23218 including tracked changes and notes to the Panel
27
E
s 45
s 47E(d)Not exempt under s 45
Exempt under s 47E(d)
126
27 January 2011
Chain of emails between Shelley Craddock and others
1
E
s 45
s 47E(d)
s 47G(1)Not exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
127
27 January 2011
Email regarding purchase of SHFPT Units
1
E
s 45
s 47E(d)
s 47G(1)Not exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
128
28 January 2011
Email from third party to Shelley Craddock re Grant’s opinion
4
E
s 45
s 47E(d)
s 47G(1)Not exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
129
28 January 2011
Email from Shelley Craddock re Grant’s opinion
1
E
s 45
s 47E(d)
s 47GNot exempt under s 45
Not exempt under s 47E(d)
Decision not made under s 47G(1)
I certify that the preceding two hundred and fifty nine paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………............[sgd]...........................
Associate
Date of Hearing on the papers 4 March 2016
Date of Decision 28 February 2017
Representative for the Applicant Mr Clive Ross
Utopia Financial ServicesSolicitor for the Respondent Mr Aldo Paciocco
Australian Securities and Investments Commission
Le Miere J
220 ALR 587; 41 AAR 23; 88 ALD 12; 80 ALJR 1549; 63 ATR 409; Tamberlin, Conti and Jacobson JJ at [246]; 142; 655; 94; 80; 1569; 434 per Jacobson J approved by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151 at [93]; 456; 212; 541; 177
1