Ward v Centrelink

Case [2005] FCA 73

FEDERAL COURT OF AUSTRALIA

Ward v Centrelink [2005] FCA 73

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Freedom of Information Act 1982 (Cth) ss 4(1), 11(1)(a), 41(1), 41(2), 55(1)(a)
Freedom of Information Amendment Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 referred to
Servos v Repatriation Commission 1995 (129) ALR 509
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 referred to
Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 referred to
Jorgensen v Australian Securities and Investment Commission [2004] FCA 143 referred to

MARTIN WARD v CENTRELINK

SAD 179 OF 2004

MANSFIELD J
ADELAIDE
11 FEBRUARY 2005


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 179 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARTIN WARD
APPELLANT

AND:

CENTRELINK
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

11 FEBRUARY 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders of the Administrative Appeals Tribunal made on 20 July 2004 be set aside.

3.The application of Martin Ward to the Administrative Appeals Tribunal made on 29 October 2003 be remitted to the Administrative Appeals Tribunal for rehearing according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 179 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARTIN WARD
APPELLANT

AND:

CENTRELINK
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

11 FEBRUARY 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an appeal, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the decision of the Freedom of Information Officer of the respondent and later of a review officer not to grant to the appellant access to certain documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). Section 44 of the AAT Act provides that only questions of law can be raised on the appeal. The validity of the Tribunal’s decision and the appellant’s desire to gain access to the documents appear, however, to be only the tip of a much larger series of orders and findings being asked of the Court by the appellant in this case.

    BACKGROUND EVENTS

  2. The triggering event leading to the hearing of this appeal was the death of the appellant’s estranged de facto partner Colleen Highford (the deceased) in July 1999.  Together the appellant and the deceased had 10 children, nine of whom are still living.  It is in part the question of guardianship of these children following the deceased’s death that has led the appellant to this stage of legal proceedings.

  3. The Tribunal recounted the appellant’s background as follows:

    ‘The applicant, who is nearly 52 years of age, is father of the deceased’s nine living children, five of whom, he says are under the age…

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Ward v Centrelink [2005] FCA 73
Case
[2005] FCA 73
Decision Date

CaseChat Overview and Summary

The case of Ward v Centrelink involves an appeal by Martin Ward against the decision of the Administrative Appeals Tribunal (AAT) which upheld the refusal by Centrelink to release certain documents to him under the Freedom of Information Act 1982 (Cth). The core of the dispute is Ward's desire to gain access to documents that pertain to his deceased de facto partner, Colleen Highford, and child support payments made to the current guardians of their nine children. The Tribunal, as well as the review officer, declined to release these documents on the basis that they were exempt under section 41(1) of the FOI Act, which pertains to the protection of personal information.

The primary legal issue the court had to address was whether the Tribunal correctly interpreted and applied the provisions of the FOI Act, specifically section 41(1), in refusing to grant Ward access to the documents. The court also had to consider whether the Tribunal's decision to not inspect the documents in question was appropriate and whether there was a need to remit the case back for a rehearing. Additionally, the court had to determine if Ward's personal interest in the documents outweighed the public interest in protecting the personal information of third parties, as outlined in section 41(1) of the FOI Act.

The court examined the interpretation of section 41(1) in the context of the Freedom of Information Act, referencing the earlier decision in Colakovski v Australian Telecommunications Corporation. The court highlighted that the protection of personal affairs under section 41(1) is a public interest consideration, and disclosure of such information is not in the public interest unless it serves the purpose of the legislation to open government information to public access. The court found that the Tribunal had not adequately considered whether the disclosure of the documents to Ward would serve the public interest or if it would merely satisfy his personal curiosity or desire to challenge the decisions related to his children's guardianship and support payments. Furthermore, the court noted that the Tribunal did not inspect the documents in question, which is a significant oversight in determining whether the documents could be redacted to remove exempt information before release.

Based on these findings, the court decided to allow the appeal, set aside the orders of the AAT, and remit the application back to the AAT for a rehearing according to law. This decision emphasizes the importance of thoroughly considering both the public interest in protecting personal information and the individual's right to access information under the FOI Act.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the Administrative Appeals Tribunal made on 20 July 2004 be set aside.

3. The application of Martin Ward to the Administrative Appeals Tribunal made on 29 October 2003 be remitted to the Administrative Appeals Tribunal for rehearing according to law.

Background

Background to the litigation

This is an appeal, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the decision of the Freedom of Information Officer of the respondent and later of a review officer not to grant to the appellant access to certain documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). Section 44 of the AAT Act provides that only questions of law can be raised on the appeal. The validity of the Tribunal’s decision and the appellant’s desire to gain access to the documents appear, however, to be only the tip of a much larger series of orders and findings being asked of the Court by the appellant in this case. BACKGROUND EVENTS The triggering event leading to the hearing of this appeal was the death of the appellant’s estranged de facto partner Colleen Highford (the deceased) in July 1999. Together the appellant and the deceased had 10 children, nine of whom are still living. It is in part the question of guardianship of these children following the deceased’s death that has led the appellant to this stage of legal proceedings. The Tribunal recounted the appellant’s background as follows:‘The applicant, who is nearly 52 years of age, is father of the deceased’s nine living children, five of whom, he says are under the age of 18 years. The applicant says that in late 1997 he and the deceased (who was Aboriginal) and their children were evicted from their home in the Aboriginal community at Koonibba, via Ceduna, having allegedly “abandoned” Koonibba (the Mission). The history outlined by the applicant at the Hearing is difficult to follow, but I understand that when the family moved away from Koonibba, the deceased went to Western Australia, while the applicant remained with the children in Adelaide. When the deceased returned, she took five of the children to Whyalla, and the applicant had two of the children in Adelaide. He returned these children to the deceased in mid 1998. He said that at the time of the deceased’s death on 30 July 1999, he was either in gaol, or under strict bail conditions in Adelaide. He says that he was subsequently cleared of these criminal charges. He was not notified of her death; the children were placed with their older siblings and members of the deceased’s extended family at the Mission.’ In his written submissions, the appellant (who is unrepresented and has no legal training) asserted that there were a number of factual errors in the Tribunal’s recitation of events. He asserts that it was late September 1996 when he and his family were ‘expelled’ without notice from their home in the Koonibba Community. It was as a consequence of this forced removal that the appellant asserts that he and the deceased were ‘forced apart’, but he claimed their geographical separation was not the end of their relationship. The other factual error sought to be corrected by the appellant was the time he was in prison or subject to strict bail conditions. He asserts that this was not at the time of the deceased’s death, but at the time he, the deceased and their children were removed from their home.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
By letter, apparently dated 10 October 2004, the review officer declined to release the documents sought ‘in their entirety’ on the ground that they are exempt under s 41(1) of the FOI Act. He was nevertheless also provided with two publications of the respondent: ‘Are you a Parent or Guardian?’ and ‘Are you needing help after someone dies?’ (the pamphlets).THE TRIBUNAL’S DECISION The appellant applied for review of this decision by the Tribunal on 29 October 2003. In the ‘reasons for application section’ the appellant wrote:‘I wish to administer my wife’s (defacto) small estate.I wish to find my children and re-establish [sic] with them.I need to know how children can be put with other [sic] by paying them money, without notice to me.’These ‘reasons’ reveal that the appellant’s ultimate goal is to reunite his family and gain custody of his children. In order to do this he is seeking documents under the FOI Act relating to the deceased and to child support payments to the present guardians of his children. It appears that the appellant wishes to find out information about how the children came under the care and custody of their current guardians and why the respondent approved social security payments to the children’s guardians, so that the appellant can challenge the respondent’s decision to make payments to those people. It then appears that the appellant wishes to re-establish regular contact with his children and ultimately gain legal custody over them and become the recipient of any family allowance payments to be paid. There is a dispute between the parties as to the documents the subject of the Tribunal’s consideration. Each of the primary decision maker and the review officer appear to have regarded the request as relating to a number of documents, although they did not identify them. The respondent provided to the Tribunal a statement of facts and contentions dated 29 March 2004. It maintained that access to the documents sought be affirmed, by reason of s 41(1) of the FOI Act. However, it was accompanied by a ‘Schedule of Exempt Documents’ in which only one document was identified: a computer file note of 19 October 1999, said to be exempt under s 41(1) because it ‘contains personal information of third parties’. Ultimately the Tribunal addressed only that document, although in parts of its reasons it appears to assume there is more than one document covered by the request, as it refers to information provided to the respondent by the carers of the appellant’s children over a five year period. The Tribunal, I am informed by counsel for the respondent, did not seek to inspect either the file note of 19 October 1999, or any other records which it appears to have assumed may exist. The appellant does not accept that he agreed at the Tribunal that his application concerned only the one document, and the way the Tribunal has interpreted his request:‘… I understand that he is not now seeking the identity of the carers of his children, details of which are well known to him. He is seeking, in effect, documents containing the information upon which the Department approved payment to these persons, of Family Allowance and Family Tax Benefits, in respect of the children, so that he can challenge that decision, and become the person to whom such Family Allowance and Family Tax Benefit is paid.’The Tribunal found that carers of the appellant’s children have made claims for such benefits and have received them since mid 1999. It concluded:‘They have provided confidential information to [Centrelink] on a regular basis. I am satisfied that these persons would have expected that their identity and the information provided would be kept confidential. The applicant claims that he knows now, the identity of some, if not all, of these persons. But such identification, on the applicant’s own evidence, has led to physical confrontation, and denial of the applicant’s requests to hand over the children. Release of the information to the applicant would lead, in my view, to positive, not speculative identification of each of the children’s carers, and to the nature of payments and the basis upon which those payments are made. As stated earlier in this paragraph, I am satisfied that these persons would have expected that this information would remain confidential; and that in these circumstances disclosure would involve the unreasonable disclosure of personal information about these persons.’From that conclusion, it refused access to the computer file note dated 19 October 1999. It did not discuss the existence or nature of any other documents. Nor is there any discussion in its reasons about why, given the observations quoted above, there should be only one such document.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Section 22(1) relevantly provides that, where an agency decides not to grant a request for access to a document on the ground that it is an exempt document, and that it is possible for the agency to make a copy of the document with such deletions that the copy would not be an exempt document, and it is reasonably practicable to do so, then the agency shall (unless it is clear that the applicant for the document would not wish to have access to such a copy) make and grant access to such a copy. Section 41 is in Pt IV of the FOI Act and a decision under s 41 not to disclose a particular document is a decision concerning an ‘exempt document’ as defined in s.4.CONSIDERATION The Full Court of this Court dealt with the interpretation of s 41(1) of the FOI Act in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (Colakovski). I note that that decision predates the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 (Cth). In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at 438:‘This is not an appropriate case in which to examine definitively the circumstances that may constitute “the unreasonable disclosure of information” relating to a person’s “personal affairs” because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. 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 mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt documents confirms this approach.’ Heerey J, at 441, added the following comments with respect the issue of ‘unreasonableness’:‘Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.’