Walker v SafeWork NSW - [2022] NSWCATAD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Walker v SafeWork NSW [2022] NSWCATAD 94
Hearing dates: 14 October 2021
Date of orders: 18 March 2022
Decision date: 18 March 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW – administrative review - Government Information – confidential information – secrecy provision – effective exercise of agency’s functions - whether overriding public interest against disclosure

Legislation Cited:
Administrative Decisions Review Act 1997
Government Information (Public Access) Act 2009
Work Health and Safety Act 2011

Cases Cited:
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Fraser v SafeWork NSW [2020] NSWCATAP 92
Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Leech v Sydney Water Corporation [2010] NSWADT 298
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Perilya v Nash [2015] NSWSC 706

Category: Principal judgment
Parties: Philip Walker (Applicant)
SafeWork NSW (Respondent)
Representation: Applicant in person
Legal, Government and Corporate Services, Department of Customer Service for the Respondent

File Number(s): 2021/00136663
Publication restriction: Nil

REASONS FOR DECISION

On 5 March 2021 Philip Walker made an application to SafeWork NSW (SafeWork) under the Government Information (Public Access) Act2009 (GIPA Act) seeking access to all information relating to silica dust emission in 2019, 2020 and 2021 from construction of the Mona Vale Road East Upgrade by Georgiou Constructions. The reference in Mr Walker’s access application to Georgiou Constructions is a reference to Georgiou Group Pty Ltd (Georgiou).
On 20 April 2021 SafeWork made a decision to release some information to Mr Walker, to partially release other information with personal information redacted and to refuse access to responses from Georgiou to a Notice issued by SafeWork to Georgiou under s 171 of the Work Health and Safety Act 2011 (the WHS Act) (Notice No. 7-378163).
It seems that the 20 April 2021 decision was not received by Mr Walker and he sought administrative review by the Tribunal on the grounds that SafeWork had failed to decide the access application within the required timeframe. This became apparent when the matter came before the Tribunal and he was then provided with a copy of the decision. Mr Walker later clarified that he is seeking review of that part of the decision which refused access to the responses from Georgiou to Notice No. 7-378163.
In the course of these proceedings SafeWork identified further information which fell within the terms of Mr Walker’s access request. This information compromised documents that were provided to SafeWork by Georgiou in response to another Notice issued to Georgiou under s 171 of the WHS Act (Notice No. 7-375264). SafeWork made a supplementary decision on 31 August 2021 and also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v SafeWork NSW

Details

AGLC: Walker v SafeWork NSW [2022] NSWCATAD 94
Case: [2022] NSWCATAD 94
Decision Date: 18 March 2022

CaseChat Overview and Summary

In the matter of Walker v SafeWork NSW, the dispute arose from a request for information under the Government Information (Public Access) Act 2009 (NSW). The applicant sought documents related to an investigation conducted by SafeWork NSW. SafeWork NSW refused to disclose certain documents, citing the secrecy provision in the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The case was brought before the Land and Environment Court of New South Wales to determine whether the secrecy provision was applicable and if it effectively prevented the disclosure of the requested information.

The primary legal issues that the court needed to address were the interpretation and application of the secrecy provision within the context of the Government Information (Public Access) Act. The court had to determine if the overriding public interest against disclosure, as claimed by SafeWork NSW, was sufficient to justify withholding the documents from the applicant. Furthermore, the court considered whether SafeWork NSW's functions could be effectively exercised without disclosing the contested information.

The court found that the secrecy provision did indeed apply to the documents in question, as they pertained to a specific investigation. However, the court held that SafeWork NSW had not demonstrated that the overriding public interest against disclosure was sufficient to outweigh the public interest in transparency and access to information. The court reasoned that SafeWork NSW could effectively exercise its functions without disclosing the requested information, thus affirming the decision to withhold the documents was not justified. Consequently, the decision to deny the information request was affirmed, maintaining the confidentiality of the documents in question.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Walker v SafeWork NSW [2022] NSWCATAD 94
Hearing dates:	14 October 2021
Date of orders:	18 March 2022
Decision date:	18 March 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review - Government Information – confidential information – secrecy provision – effective exercise of agency’s functions - whether overriding public interest against disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Work Health and Safety Act 2011
Cases Cited:	Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Fraser v SafeWork NSW [2020] NSWCATAP 92 Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Perilya v Nash [2015] NSWSC 706
Category:	Principal judgment
Parties:	Philip Walker (Applicant) SafeWork NSW (Respondent)
Representation:	Applicant in person Legal, Government and Corporate Services, Department of Customer Service for the Respondent
File Number(s):	2021/00136663
Publication restriction:	Nil