Wang and Comcare

[2011] AATA 720

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 720

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2711

GENERAL ADMINISTRATIVE DIVISION		)
Re		MING LI WANG

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President J W Constance

Date8 June 2011

PlaceMelbourne

Decision

The Tribunal decides that the following summonses are set aside:

1.      Austrade Melbourne Office EDMG SIU Unit;

2.      Austrade Melbourne Office Accounts Team; and

3.      David Parker EMDG Victoria Office

…...(sgd J W Constance).......

Deputy President

CATCHWORDS

COMPENSATION – whether the summonses to produce documents would place the officers concerned in breach of the provisions of the Australian Trade Commission Act 1985 (Cth) s 94 – secrecy - summonses set aside

Australian Trade Commission Act 1985 (Cth) ss 94(2), 94(5) and 94(7)

REASONS FOR DECISION

18 October 2011 Deputy President J W Constance

BACKGROUND

4.      Ms Wang has applied to the Tribunal to review a decision of Comcare.  In the course of the application she applied for the issue of a number of summonses for the production of documents.  These summonses were issued and served on various officers of the Australian Trade Commission.

5.      Having received the summonses the Commission applied to have them set aside.  After hearing argument by each party I decided that the summonses should be set aside.

6.      I now provide my reasons in writing for this decision.

THE SUMMONSES

7.      Each of the summonses in issue was addressed to an officer or a section of the Australian Trade Commission.  For convenience I will refer to the summonses by number.

8.      Summons 1   sought the production of:

Record of outsider tipping off that the Applicant is not Principal in export.  This application was assessed by David Parker.

9.      Summons 2  sought the production of:

David Parker’s Austrade mobile phone bill covering the period from 1 March 2009 and 30 March 2011.

10.     Summons 3  sought the production of:

Mingli Wang’s mobile phone bill covering the period from 1/3/09 to 30/3/09.

11.     Summons 4  sought the production of:

Copies of assessment recommendations summary sheets and copies of actual grant payments documents of twenty applications that David Parker rejected/not accepted Mingli Wang’s recommendations mentioned in the review of the matter raised by Mingli Wang on page 3 under 5.3.

THE COMMISSION’S OBJECTION

12.     The Commission objected to the production of the documents referred to in each of the summonses on the basis that production of the documents would place each of the officers concerned in breach of the provisions of the Australian Trade Commission Act 1985 (Cth).

RELEVANT PROVISIONS OF THE AUSTRALIAN TRADE COMMISSION ACT

13.     Section 94 of the Act provides in part:

Secrecy

(2)  Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act:

(a)  make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first-mentioned person by reason of his or her employment; or

(b)  produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty:  $2,000 or imprisonment for 1 year, or both.

…

(5)  A person to whom this section applies shall not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of, or of a prosecution for an offence against, this Act, the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.

…

(7)  In this section:

"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

"produce" includes to permit access to.

CONSIDERATION

14.     It is not in dispute that each of the persons served with a summons was an officer to which section 94 applies.

15.     The Commission argued that each of the documents sought was “a document relating to the affairs of another person furnished for the purposes of the Act.”

16.     The plain meaning of the words of subsection 94(2)(b) is very wide, but I am satisfied from the reading of the section as a whole that Parliament intended that the Commission be exempted from the usual requirement to produce documents to a court or tribunal, regardless of the assistance those documents may provide  in the determination of the issues before that court or tribunal.

17.     I am satisfied on the face of each of the summonses that the documents Ms Wang seeks to have produced relate to the affairs of another person furnished for the purposes of the Act.  I accept that the telephone records sought would include telephone numbers of persons and organisations doing business, or seeking to do business with the Commission and therefore relate to the affairs of those persons or organisations.

18.     It follows that the summonses in question will be set aside.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance

Signed:         .........(sgd K Peterson)...................

Ms K Peterson         Associate

Date of Telephone Directions Hearing      8 June 2011
Date of Decision  8 June 2011
Date of Written Reasons  18 October 2011
For the Applicant  self represented

Solicitor for the Respondent  Mr G Foley,

Sparke Helmore

Solicitor for the Summonsed Party            Ms P Heffernan,

Australian Government Solicitor