Vasta and Anor and Civil Aviation Safety Authority
[2008] AATA 1120
•16 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2008] AATA 1120
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/261
GENERAL ADMINISTRATIVE DIVISION ) No 2008/2385
Re WAYNE VASTA Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
AND Re MICHAEL McKINNON Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Justice Tamberlin, Presidential Member
Professor G D Walker, Deputy PresidentDate16 December 2008
PlaceSydney
Decision The application under s 37(2) Administrative Appeals Tribunal Act (1975) (“the Act”) is granted. The documents requested under the Act are to be produced to the Tribunal. No access to the documents is to be granted to the applicants or their legal representatives without further order of the Tribunal. ...................[sgd]...........................
Justice Tamberlin, Presidential Member
......................[sgd]........................
Professor G D Walker, Deputy President
CATCHWORDS
FOI – primary request for documents under the Freedom of Information Act, with application for documents under s 37(2) of the Administrative Appeals Tribunal Act - whether the documents sought under the Act are “relevant” to the review of a decision by the Tribunal – access to requested documents granted
RELEVANT ACTS:
Administrative Appeals Tribunal Act (1975) (Cth)
Freedom of Information Act 1982 (Cth)
…
CITATIONS
Australian Prudential Regulation Authority v VBN (2005) 88 ALD 403
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Colakovski v Australian Telecommunications Corp (1991) 29 FCR 49
….
REASONS FOR DECISION
16 December 2008 Justice Tamberlin, Presidential Member
Professor G D Walker, Deputy President1. The applicants seek orders under s 37(2) of the Administrative Appeals Tribunal Act (1975) (“the Act”) that the Civil Aviation Safety Authority (CASA) lodge with the Tribunal and give access to each applicant the following documents:
“1.CASA Report on special review of QANTAS’ maintenance referred to in the media release published by the respondent on 1 September 2008;
2.CASA report on QANTAS’ Brisbane heavy maintenance scheduled for 2007;
3.In respect of each location at which QANTAS conducts heavy maintenance of its aircraft outside Australia, the following documents if created after 1 January 2006:
a.The application for approval of that location under regulation 30 of the Civil Aviation Safety Regulations 1988 (CAR)
b.The approval of that location under regulation 30 of the CAR
c.The report of any audit or other investigation taken into account by the respondent in granting each such approval;
4.Each approval of a training programme under regulation 214 of the CAR for maintenance personnel located at each such location;
5.The report of any audit or other investigation of training conducted pursuant to any such approval;
6.All correspondence between CASA and any organisation approved pursuant to regulation 30 of the CAR about the release or publication of surveillance or audit reports prepared by CASA.”
2. Section 37(2) of the Act provides:
“(2)Where the Tribunal is of the opinion that particular… documents or… other documents included in a particular class of documents, may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given… a notice… stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal… the specified number of copies each of those documents that is in his or her possession…” (Emphasis added)
3. This provision has effect notwithstanding any law in relation to privilege or the public interest in relation to production of documents: s 37(3).
4. In applying the provision it is necessary to ascertain what are the decisions to be reviewed by the Tribunal in the present case, in order to determine whether the documents sought under s 37(2) may be relevant.
5. The first decision under review is in the Vasta case. It was made on 13 November 2007, affirming a decision of a CASA officer that certain documents sought by Mr Vasta were “exempt” documents, and deciding against release of the following documents:
“1. Audit report – Fieldair Engineering.
2. Audit report – Hong Kong Aircraft Engineering.
3. Audit report – Lufthansa Tecknik Philippines Inc.
4. Audit report – SIA Engineering.
5.Two audit reports and operational surveillance records – ST Aerospace Engineering.
6. Audit report – Air New Zealand.
7. Audit report – Jet Aviation Pty Ltd.
8. Audit report – Hawker Pacific.”
6. Mr Manning, on review, affirmed the decision of the legal officer for CASA and the reasons for the refusal, which were as follows:
“Information concerning business affairs
I consider the documents are exempt documents because, in accordance with s. 43(1)(c)(i) of the Act, the disclosure of them would disclose information concerning the abovementioned maintenance organisations in respect of, or concerning their business affairs being information, the disclosure of which would, or could reasonably be expected to, unreasonably affect them adversely in respect of their lawful business, in that adverse publicity concerning maintenance practices could affect the level of business generated by those companies. (Emphasis added)
Documents concerning certain operations of agencies
I also consider the documents are exempt documents because, in accordance with s.40(1) of the Act, the disclosure of them would, or could reasonably be expected (a) to prejudice the effectiveness of procedures or methods for the conduct of audits conducted by CASA and/or (b) prejudice the attainment of the objects of particular audits conducted or to be conducted by CASA.
This is because disclosure of the documents would inhibit frankness and candour in future audits conducted by CASA of maintenance organisations. CASA relies upon that candour in being able to effectively conduct the safety regulation of maintenance organisations operators. For these reasons I do not consider that disclosure of the documents would, on balance, be in the public interest.” (Emphasis added)
6. In the McKinnon matter an application was made on 7 August 2007 seeking access to the following documents:
(a)“Documents produced in the 12 months prior to the request detailing concerns, problems or potential flaws with repairs and maintenance standards in relation to Qantas aircrafts;
(b)Any statistics detailing potential problems with aircraft in relation to those issues.”
7. In relation to information regarding business affairs, on 23 April 2008, Mr Carmody, the Deputy Chief Executive Officer for Strategy and Support at CASA, made a decision by way of review that certain documents (numbered 1 to 19 in the Schedule to his Reasons) were “exempt” documents because the disclosure of them would disclose information concerning Qantas in respect of its business affairs being information, the disclosure of which could reasonably be expected to unreasonably affect it adversely in respect of its lawful business in that adverse publicity concerning maintenance practices could affect Qantas’ reputation and therefore its level of business. In so doing Mr Carmody rejected a submission that s 43 of the Act contained a public interest test which required a balance to be determined between public and private interest.
8. In addition, Mr Carmody decided in relation to documents concerning certain operations of agencies that documents numbered 8 to 16 in the Schedule were exempt because, in accordance with s 40(1), the disclosure would or could reasonably be expected to prejudice the effectiveness of procedures or methods for the conduct of compliance orders conducted by CASA and prejudice the attainment of the objects of particular audits conducted or to be conducted by CASA, which were said to be the effective safety regulation of civil air operations in Australia. He considered that disclosure would inhibit frankness and candour between maintenance organisations and CASA in future audits conducted by CASA, and noted that CASA relied on that candour in being able to effectively control the safety regulation of maintenance organisations operators. Accordingly, he considered that disclosure of those documents would not be in the “public interest”, and noted that an application for review of his decision could be made to this Tribunal.
9. In both the McKinnon case and the Vasta case an application for review under s 55 of the Act was filed with the Tribunal.
10. In support of each application the applicants rely on an Affidavit of Michael McKinnon, of 14 November 2008. He is the FOI Editor of the Seven Network, a national television broadcaster. Attached to his Affidavit are a number of documents, including a document released by CASA on 31 October 2007 in response to the Freedom of Information (“FOI”) application by Channel Seven. There are also media releases and newspaper articles. The latter refer to interviews with Qantas executives, a CASA spokesman and a transcript of interviews relating to incidents concerning Qantas flights, safety, maintenance and operational incidents.
11. The most recent attachment is an Australian Associated Press General News Release of 7 October 2008 referring to Qantas safety issues in the period from March 2006 through to October 2008, which sets out a number of matters and incidents, pertaining to Qantas operations ranging from a blown tyre to more significant incidents including aborted take-offs, failure of landing gear and emergency landings.
12. Other publicly available documents attached to the affidavit of Mr McKinnon include a media release by CASA dated 1 September 2008 which refers to CASA seeking a range of improvements by Qantas as to the way it manages and delivers aircraft maintenance following a special review carried out by CASA. The document records that CASA called on Qantas to report how recent failures to fully comply with airworthiness directives had been addressed. Qantas is reported as saying, through its Deputy Chief Executive Operations Officer, that a comprehensive package of action was underway to address emerging problems. Qantas is also reported as saying that CASA has uncovered signs of emerging problems and some adverse trends which have brought maintenance performance below the airline’s own benchmarks. It also refers to the fact that by taking action immediately, future safety problems would be avoided, and that the wide range and package of actions CASA has initiated will prevent any downward trend in Qantas maintenance performance.
13. In a recent media interview with the Deputy CEO of CASA and Mr Nick Quinn there is a discussion about a recent CASA audit into Qantas. This gives details of the steps taken by CASA and Qantas. During the interview particular issues were referred to such as organisation and functionality in engineering and maintenance operations and the belief that the organisation needs to thoroughly align accountability and responsibility and to improve the management structure of engineering. It refers to a request to Qantas to provide a report as to future procedures concerning updating maintenance programmes and compliance with air worthiness directives.
14. There is also a record of interview with Mr Dixon of Qantas, who was then the CEO, and who said on 1 September 2008 that Qantas would work closely with CASA to implement recommendations. He said there had been no significant change in Qantas’ rate of reported incidents over the past two years and that there was no direct link between the recent incidents involving Qantas aircraft. Any incidents were said to be unrelated, and any systemic problems were denied.
15. The material also indicates that CASA on 3 August 2008 set up a special six man team to review every aspect of the safety and maintenance operations of Qantas. CASA indicated at that point that it had no evidence to suggest that there were problems with Qantas, but that they thought it prudent and wise to go in with a special team and take an additional look at a range of operational issues.
16. In another attachment to the affidavit of Mr McKinnon, an email dated 22 March 2007, concerning an incident on 19 December 2005, states that heavy maintenance requirements on A330 aircraft had not been carried out in Australia and that such work had always been carried out by a number of overseas organisations in Zurich, Hong Kong and in the Philippines. These organisations, it is said, comply with Australian Regulations. There is a particular reference to one incident where CASA was not notified of a defect in relation to a Jetstar A330 aircraft and which occurred when during a check it was discovered that the crew oxygen bottle had been lock-wire closed and that when this was discovered the defect was rectified and recorded internally. However, there was no notification of CASA at the time it was discovered notwithstanding a requirement for such notification.
17. The applicants contend that the relevant information sought under s 37(2) is to show that matters may be referred to which relevantly bear on the public interest under s 40, namely, that CASA is in possession of information about the safety of Qantas beyond that which is publicly disclosed by Qantas or CASA and that by reason of recent incidents members of the public may have cause to be concerned about the safety standards applied, especially bearing in mind that there have been expenditure restraints on Qantas and references made to expenditure restraints within Qantas. The documents referred to in Mr McKinnon’s Affidavit indicate that Qantas has assured travellers and the public generally of its safety and it has relied on its historical record. The applicants say that CASA has information which may contain some indication that the current safety regime of Qantas does not meet benchmarks it set itself or Qantas and that it may be that in the public interest matters be disclosed notwithstanding any adverse impact on the business or affairs of CASA and/or Qantas commercially or in their reputation.
18. These matters, it was submitted, provide a basis for contending that there is a public interest in the disclosure of information which may enable members of the public to assess details of circumstances where Qantas safety standards and measures may be found wanting. This exercise will involve the Tribunal in the FOI application weighing the public interest in more information about safety for the public and the possible need for improvement against the extent of damage which may be done.
19. The principal issue therefore is whether the “other documents” sought for lodgement with the Tribunal under s 37(2), the subject of this application, may be relevant to the question on the FOI applications namely whether the documents sought on the application contain information concerning the business, commercial or financial affairs of an organisation or undertaking being information the disclosure of which could reasonably be expected to unreasonably affect that person adversely in respect of his or her lawful business and under s 40 whether there is a public interest in disclosure and if so what weight should be given to it.
Legal Principles
20. Under s 37(2) of the Act it is the Tribunal’s opinion of whether a document may be relevant to making a decision on the FOI question which enlivens the power to require lodgement of “other documents”. This provision can be contrasted with s 37(1)(b), which imposes an objective obligation on the decision-maker to lodge any document which is relevant: see Australian Prudential Regulation Authority v VBN (2005) 88 ALD 403 where Ryan J remarked at [34], [35] and [36]:
[34] It is true that s 37(1)(b) after its amendment with effect from 16 May 2005 to require lodgement of ‘every other document or part of a document that … is relevant to the review’ instead of ‘every other document or part of a document that … is considered by him [the decision-maker] to be relevant to the review’ has substituted an objective for a subjective test of relevance; see the Explanatory Memorandum to the Bill which effected the amendment where it was observed that under the subsection in its earlier form:
… a decision-maker can refuse to give the Tribunal a document in his or her possession on the basis that, in his or her subjective opinion, the document is not relevant to the decision under review. It is intended that under new paragraph 37(1)(b) of the Act, a decision-maker must give the Tribunal a document in his or her possession if a hypothetical decision-maker would consider that the document is relevant to the decision under review.
[35]However, that change in the nature of the obligation imposed on the decision-maker did not create a new source of power by which the Tribunal could enforce the obligation. As the learned Senior Member correctly observed in the passage from her reasons noted at [7] above, s 37(1)(b) and s 37(2) have to be read together. When that is done, it becomes apparent that, even after the recent amendment, s 37(2) remains the sole relevant source of power whereby the Tribunal can compel a decision-maker to lodge with the Tribunal ‘particular other documents’ or ‘other documents included in a particular class of documents’ that ‘may be relevant to the review of the decision by the Tribunal.’ The words ‘may be’ to which I have added emphasis, are significant because they reflect the fact that, when forming the opinion as to relevance, the Tribunal will not be apprised of the contents of the presumptive documents. As well, the expression ‘other documents’, which occurs in three places in s 37(2), clearly refers to documents ‘other than’ those lodged with the tribunal as contemplated by s 37(1)(b).
[36]In that context, I regard as compelling a construction of s37(1)(b) and s 37(2) which treats the latter subsection as alone providing a facility for the Tribunal to require a decision-maker to lodge with the Tribunal copies of relevant, or possibly relevant, documents in addition to those lodged in discharge of the obligation imposed by s37(1)(b) as amended. …
21. His Honour also observed at [23] that the sole obligation of a recipient of such a notice is to lodge with the Tribunal copies of the specified documents or class of documents and only when that had been done could the Tribunal order the release to the other parties of some or all of the documents so lodged.
22. Sections 40 and 43 of the Freedom of Information Act 1982 (Cth) (“FOI Act”), which are the provisions relevant for present purposes, were considered by the Full Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111. Their Honours in that case (at 123 and 125) made the following pertinent observations:
In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.
…The decision-maker is concerned, not with the reasonableness of the claimant’s behaviour, but with the effect of the disclosure.
… The word “unreasonably’ should be given its ordinary meaning. Section 43(1)(c)(i) poses the issue whether the disclosure of the information would unreasonably affect a person adversely. The issue is not whether the effect is of substance rather than incidental or trivial, as stated by the Tribunal ….
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: (i) 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 affect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp (1991) 29 FCR 49 at 438-441.
23. It is worth noting that in Colakovski Lockhart J said at 438:
What is unreasonable’ disclosure of information for the purposes of s 40(1) must have, as its core, public interest considerations. Exemptions necessary for the protection of ‘personal affairs’ (s 40(1)) and ‘business or professional affairs’ (s 43) are themselves, in my opinion, public interest considerations.
…The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions are mentioned in ss 41 and 43 are satisfied. Examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.
24. The observations in Searle are important for present purposes because they highlight the importance of public safety and protection of the community as considerations which may be of such weight that when considering the question of the reasonableness of disclosure, notwithstanding adverse affects, they may outweigh those adverse effects. The observations emphasise the necessity to weigh competing considerations and these can only be properly considered if relevant documentation and material is before the Tribunal when considering the “reasonableness” of an adverse effect under s 43(1)(c) or the public interest under s 40(2) of the FOI Act .
25. With these principles in mind we now turn to the s 37(2) applications before us.
Reasoning
26. Having regard to the material before it, particularly the attachments to the Affidavit of Mr McKinnon, the Tribunal is of the opinion that document number 1 sought by the applicant on the s 37 application may be relevant to the review of the decision by the Tribunal. This is because this recent CASA Report may be relevant to determining the nature and extent of any risk to safety and that this could bear on the public interest and on the question of whether any adverse effect of disclosure could be unreasonable when balanced against the public interest in being aware of such risk. Therefore a direction should be made that this document be lodged with it.
27. The Tribunal is of the opinion that a similar conclusion should be reached for substantially the same reasons in relation to the CASA Audit Report, which is the second document subject to the s 37 application and which is dated 22 November 2007. Mr Dixon in the Qantas Press Release of 1 September 2008 specifically refers to and relies on 14 audits by CASA over the previous 12 month period. This document therefore could, in the Tribunal’s opinion, be relevant to public safety issues and the reasonableness of any adverse effects of disclosure.
28. The third class of documents comprises applications and approvals after 1 January 2006 for Qantas to perform heavy maintenance overseas. The Tribunal considers that these documents may be relevant to the public interest and the question whether it is reasonable to say that the adverse effects of disclosure will outweigh the public interest. Initially, CASA said there were no such documents but later changed its position. The Tribunal considers those documents may be relevant and should be lodged with it.
29. In relation to document classes 4 and 5, which concern training programmes for maintenance personnel, the Tribunal is of opinion that these documents may be relevant to the public interest and reasonableness and should be lodged with it.
30. The final class of documents, class 6, comprises correspondence between CASA and other maintenance organizations about disclosure of surveillance and audit repairs. These documents in the opinion of the Tribunal may be relevant because they may contain material relevant to the nature and extent of any adverse effect of disclosure on Qantas or CASA in the conduct of their affairs which is a matter to be taken into account on the FOI application.
Conclusion
31. For the above reasons the Tribunal will direct CASA to lodge with it the documents the subject of the s 37(2) application within 28 days. There will be no access to the documents by the applicants and their representatives without further order of the Tribunal. The Tribunal will hear the parties on costs and access to the documents lodged, at a date to be fixed with the Tribunal.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Presidential Member, and Professor G D Walker, Deputy President
Signed: ...................[sgd]................................................
AssociateDates of Hearing 19 November 2008
Date of Decision 16 December 2008
Counsel for the Applicants Mr T. Brennan
Solicitor for the Respondent Mr A. Anastasi
2
4
0