1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the decision of the Administrative Review Tribunal (ART) of 21 June 2021.

1. This decision discusses the application of s 46(b) to a request for documents provided to the ART during the review of a child support decision. It finds that disclosure of documents, which contain the personal information of another party who does not consent to their disclosure, would be contrary to the Administrative Review Tribunal (Child Support) Practice Direction 2024 made under the Administrative Review Tribunal Act 2024. Therefore, the documents are exempt under s 46(b).

1. On 28 May 2021, the applicant applied to the ART for access to an email and an audio recording provided to the former Administrative Appeals Tribunal's (AAT) Social Services and Child Support Division by the other party in proceedings involving the applicant (see Annexure A).
2. The ART identified two documents[1] in scope of the applicant's request and refused access to them both in full under s 46.
3. During the course of this Information Commissioner review (IC review) the ART contended that the documents at issue were also exempt in full under s 47E(d).
4. In their IC review application the applicant requested that the Office of the Australian Information Commissioner (OAIC) also review the decision of the AAT 'to deny the transcription provider a copy of the transcript'. The applicant submitted that they need this for a review they are preparing in the Federal Court. It is outside my remit to consider any decisions by the ART regarding provision of documents or audio recordings to transcription services or third-parties. Accordingly, this issue is out of scope of this IC review.
5. The issues to be decided in this IC review are whether the documents are:
   • exempt under s 46, or
   • conditionally exempt under s 47E(d), and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
6. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[2]
7. In making my decision, I have had regard to the following:
   • the AAT's decision and reasons for decision of 21 June 2021
   • the documents at issue
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
   • the parties' submissions.

Exemption of a document where disclosure is contrary to an order or direction (s 46(b))

A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown: > > ... > > (b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or > > ...

• the relevant ART case was a child support review conducted in the Social Services and Child Support Division of the AAT, which was finalised on 10 May 2021
  • in the Member's reasons for decision it referred to 'AUZ' submitting additional evidence following the hearing in the form of a short email and an attached audio recording, neither of which the AAT took into account in making its decision
  • the email contains personal information about 'AUZ', and while it also contains 'AUZ's' opinion (whether correct or not) about the applicant, this fact only makes that part of the material joint personal information
  • the applicant does not dispute that the audio recording (one of the documents at issue) contains the personal information of another person, their daughter
  • according to the AAT decision 'AUZ' had 100% care of the parties' daughter as at 10 May 2021
  • paragraph 17(2) of the Child Support Review Directions dated 27 March 2019 (2019 Practice Direction) in force at the time of the applicant's FOI request provided that:

After completion of the review, we will not give you or any other person access to a document containing personal information about another person unless the document was given to us by you or the person requesting it, respectively.

• given that the review was completed on 10 May 2021, the applicant made their request on 28 May 2021, the documents requested contain personal information about another person and were not given to the AAT by the applicant, then it follows that it would contravene the 2019 Practice Direction to provide the documents to the applicant
• the passage of time does not impact the exemption claim because on 5 December 2024 the Administrative Review Tribunal (Child Support) Practice Direction 2024 (2024 Practice Direction) replaced the 2019 Practice Direction and paragraph 5.15 of the 2024 Practice Direction has the same effect as paragraph 17(2) of the 2019 Practice Direction.[6]

1. In summary, the applicant submitted:
   • they consider that they have been treated unjustly over time in relation to child support decisions and that they have been subjected to numerous unfair child support assessments
   • they consider that the AAT made certain assumptions regarding their income leading to them not being accorded procedural fairness
   • they are intending to make an application to the Federal Court regarding their child support obligations and they consider that the requested documents will assist them in making that application
   • the AAT classified the requested documents as 'private'. The AAT's assertion that 100% care of the parties' child equates to full parental responsibility is incorrect. They consider they also have parental responsibility for the child in question and have the authority as a parent to request information, including private details
   • they are seeking disclosure of their personal information and details held about their daughter (who was the subject of the AAT proceeding as the child warranting a child support assessment) - they do not consider that she is a 'third-party'
   • their right to request this information is governed by provisions in place before the May 2024 amendments to the Family Law Act 1975[7].

1. Consideration of whether the s 46(b) exemption applies to the documents at issue requires a threefold inquiry. Firstly, whether the ART is a body to which s 46(b) applies. Secondly, what directions it has made and whether they apply to the circumstances of the applicant's request. Thirdly, whether disclosure of the documents at issue would be contrary to such directions issued by the ART.

Whether the ART is a body to which s 46(b) applies

1. The ART is a tribunal and clearly a body to which s 46(b) applies.

1. As referred to above, the ART cited paragraph 17(2) of the 2019 Practice Direction (in force at the time the applicant made their request) and paragraph 5.15 of the 2024 Practice Direction (currently in force) as being the relevant directions for its claim that the documents at issue are exempt under s 46(b).
2. I am satisfied that:
   • the AAT validly made the 2019 Practice Direction under s 18B of the Administrative Appeals Tribunal Act 1975
   • as referred to above, paragraph 17(2) of the 2019 Practice Direction provided that, after completion of the review, the AAT would not give a person access to any document containing personal information about another person except to the person who provided it to the AAT
   • the AAT was abolished on 13 October 2024 and the ART was established on 14 October 2024, with AAT staff, operations and matters transitioned to the ART[8]
   • the ART validly made the 2024 Practice Direction under s 36(1) of the Administrative Review Tribunal Act 2024 which replaced the 2019 Practice Direction
   • paragraph 5.15 of the 2024 Practice Direction provides that, after a review is finalised, the ART will not give any person a copy of a document that was provided to it during the review that contains another person's personal information without that other person's consent
   • therefore, I am satisfied that the essence of the direction that the AAT relied upon in its FOI decision continues to be in effect.
3. I turn now to consider whether the ART's directions apply to the circumstances of the applicant's FOI request.
4. Having reviewed the evidence, I am satisfied that the AAT finalised its review on 10 May 2021 and the applicant made their FOI request to the AAT on 28 May 2021, post the finalisation of its review.
5. Therefore, I am satisfied that paragraph 5.15 of the 2024 Practice Direction, which relates to the handling of documents after a review, applies to the applicant's request.

Whether disclosure of the documents would be contrary to the ART's 2024 Practice Direction

1. The ART submitted that the email in question includes the name, contact details and opinions and beliefs of 'AUZ' in relation to the applicant.[9]
2. Having reviewed the evidence before me, I am satisfied that:
   • 'AUZ' provided the documents at issue to the AAT
   • the email in question contains the personal information of 'AUZ'
   • the audio recording in question contains the personal information of the applicant and their daughter (who is also 'AUZ's' daughter), noting that the applicant in their request acknowledges that the recording relates to a conversation between them and their daughter
   • 'AUZ' and the parties' daughter have objected to the disclosure of the documents at issue.
3. Given the above, I am satisfied that the email in question falls within the scope of paragraph 5.15 of the ART's 2024 Practice Direction.
4. In relation to the audio recording, the applicant submitted in effect that they have joint parental responsibility for the parties' child and accordingly have the right to information concerning the parties' child.
5. There is no evidence before me in relation to the parental responsibility or care arrangements for the child in question. Nor is there any evidence in relation to the current age of this child. It is not appropriate for me to speculate or comment on these issues.
6. The applicant further submitted that they are seeking the requested documents to assist them to make an application to the Federal Court in relation to child support matters. In 'Q' and Department of Human Services[10] ('Q') former Privacy Commissioner Pilgrim stated:

The applicant made her FOI request in the context of legal proceedings, following the end of her relationship with the third party. The applicant states she needs the documents for these legal proceedings. Access to documents through FOI is not intended to replace the discovery process in courts and tribunals, which supervise the provision of documents to parties in matters before them.[11]

7. Following the reasoning in 'Q', and with reference to the FOI Guidelines[12], the purpose for which the applicant is seeking the documents is not a factor in my consideration.
8. The general intent of s 46 is to recognise the powers of Parliament, courts and other bodies and persons having power to take evidence on oath to regulate their own proceedings and to operate effectively without interference or obstruction.
9. The ART is clearly of the view that disclosure of the documents at issue would be contrary to paragraph 5.15 of its 2024 Practice Direction. I am satisfied that it does not consider there is sufficient consent to disclose the documents at issue.
10. While the audio recording may contain personal information of the applicant, it was not provided to the AAT by them. Further, it clearly contains the personal information of another individual, the parties' daughter, and there is no evidence before me that that individual consents to the disclosure of their personal information.
11. Given the above, I am satisfied that disclosure of the audio recording would also be contrary to the 2024 Practice Direction issued by the ART.

Finding (s 46(b))

1. I find that the ART is a body that falls within the scope of s 46(b) and that the documents at issue are subject to the 2024 Practice Direction made under the Administrative Review Tribunal Act 2024 prohibiting their disclosure and are therefore exempt in full under s 46(b).

**_Pursuant to Freedom of Information Act 1982 we seek access to:

An email sent by 'AUZ' to the Tribunal that contains private information about me and a phone recording between myself and my daughter. 'AUZ' was not a party to that conversation and the recording was private.

Reference Decision by [name redacted] on 10 May 2021, under file number: [redacted number]. At para 4. The tribunal refers to an email and audio recording.

On 25 May 2021, I requested a copy of the email and recording under the notion of procedural fairness. As the decision affected my rights and as information was provided to the tribunal in circumstances where I was not given an opportunity to respond I alleged that procedural fairness required full disclosure. Especially as information was provided before the Decision and because the recording an email was expressly referred to at para 4 of the Decision.

On 25 May 2021, [name redacted] from the AAT advised that the recording did not form part of the file and that the recording (a private recording involving myself and my daughter) would not be provided to me.

As such, I allege the AAT is in receipt of my private information and request a copy of this information under Freedom of Information Act 1982.

Annexure B

_**

Documents disclosure of which would be contempt of Parliament or contempt of court (s 46)

_A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown:

(a) be in contempt of court;

(b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or

(c) infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory.

_

**_5.211 Section 46 provides that a document is exempt if public disclosure of the document would, apart from the FOI Act and any immunity of the Crown: (a) be in contempt of court (b) be contrary to an order or direction by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath (c) infringe the privileges of the Parliament of the Commonwealth or a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory.

5.212 Both the Parliament and courts have powers to regulate their own proceedings which have traditionally been regarded as a necessary incident to their functions as organs of the state. The protection of the privileges of Parliament and the law of contempt of court are designed to allow these institutions to regulate their proceedings and to operate effectively without interference or obstruction. Over the years, Royal Commissions and tribunals have assumed similar but more limited powers.

5.213 This provision takes its scope from the principles of privilege and the general law of contempt of court. While these powers have wide application, FOI decision makers will usually encounter them in connection with the disclosure of documents that may have been prepared for or are relevant to parliamentary or court proceedings.

Apart from this Act

5.214 The effect of the words 'apart from this Act and any immunity of the Crown' is to preserve the principles of parliamentary privilege and the law of contempt of court within the operation of the FOI Act. This is achieved by ensuring that the grounds for exemption (that is, if disclosure of a document would have any of the effects in ss 46(a)-(c)), may be met notwithstanding that there may be protection from certain actions under the FOI Act (see ss 90-92), or under the protections afforded by the common law to the immunities of the Crown.

...

Contrary to an order or direction

5.217 Documents protected by s 46(b) are documents subject to an order prohibiting their publication made by a Royal Commission, tribunal or other body having power to take evidence on oath.201 Royal Commissions are established for a fixed time period. However confidentiality orders continue in effect past this period [footnotes omitted].

_**

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

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[1] One of these documents was an email and one was an audio recording.

[3] Section 46(b) as set out in Annexure B.

[4] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[6] Paragraph 5.15 of the 2024 Practice Direction provides: 'After the review is finalised, the Tribunal will not give any person a copy of a document that was provided to the Tribunal during the course of the review that contains another person's personal information without that other person's consent'.

[7] The applicant cited ss 60CA, 60CC, 65Y and 65Z.

[8] This was achieved under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024.

[9] The ART further submitted that the email in question refers to 'AUZ's' wish to make further submissions and their proposed evidence and mentions the role of the parties' daughter in collection of the evidence.

[10] [2012] AICmr 30 (21 November 2012).

[12] Paragraph 3.35 of the FOI Guidelines states, 'A person's right of access is not affected by any reasons they give for seeking access or any belief the agency or minister may have as to the reasons for seeking access ( s 11(2)). In general, any use an applicant might make of the documents is not relevant to the decision whether to grant them access...'.