The Applicant's interest in obtaining access to the withheld information arises from road safety research work with which he is involved in his community role with Rotary Australia. He submitted that in the past information was readily available for educational purposes and that the BCC answers to each of the questions could provide the basis for educational material.
The Applicant rejects the Respondent's view that the information is protected by another NSW law. He submits that the purpose of the WHS Act is to promote public safety and that the information should not be kept secret as it is relevant to public education regarding road safety.
He submitted that the objects of the WHS Act favour the release of the information for the purposes of public education and that the objects would be severely undermined if the information is not released.
He stressed the importance of having accountability and that is undermined by allowing secrecy and confidentiality to take precedence over workers safety and public interests. He submits that the confidentiality aspect of section 271 of the WHS Act is directed towards informal communication and should not present a basis for rejecting his request for information intended for an educative purpose.
He submits that the Respondent's contentions regarding clause 6 of the table to section 14 of the GIPA Act have not been substantiated. In his opinion, the Respondent has not provided evidence to demonstrate that section 271 of the WHS Act would be contravened if the released information led to disclosures of public interest for example in programs where public safety is a point of focus. In his view, educational case studies fall within that category and can be published nation-wide to help educate and improve safety.
The Applicant also submits that the Respondent has not established how the disclosure of the BCC information could reasonably be expected to have any adverse effect to a degree that that warrants its decision to refuse access to the information.
He submits that the decision in Perilya v Nash is not relevant to this matter and can be distinguished on its facts.
[2]
Consideration
I propose to consider Clause 6 of the Table to Section 14 before the other issues raised by the Respondent. As will be apparent it is my view that the public interest consideration against disclosure under clause 6 should be given significant weight and as such provides a basis for concluding that the Respondent has made the correct and preferable decision.
SafeWork may compel anyone to produce information if the information will assist an investigation. Penalties apply in relation to non-compliance with a notice issued under section 155 of WHS Act. Inspector Lennon issued a notice to BCC under section 155 of WHS Act. Through that Notice, BCC was compelled to provide answers to the questions asked by SafeWork.
It is clear that Inspector Lennon required BCC to provide the information in the course of exercising his function as an inspector with SafeWork and in the course of his inquiries. In my view there can be no doubt that the withheld information was provided to the Respondent in the exercise of its functions under section 155 of the WHS Act.
It is a requirement that any records obtained through a formal WHS notice to produce information, are dealt with in a confidential manner. The information must not be disclosed to anyone or used for any purpose other than the purpose for which it was obtained.
Clause 6(1) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act.
Clause 6(2) requires the consideration of the policy that underlies the prohibition against disclosure.
In Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 I considered that the public interest consideration against disclosure was established in regard to withheld information that concerned the affairs of tax payers, and agreed with the Respondent's contention that the release of the information would directly contravene section 81 of the Taxation Administration Act 1996 which prohibited certain disclosures of information by tax officers. I found that the public interest consideration against disclosure under clause 6 should be given significant weight.
In Clarke v Blacktown City Council [2013] NSWADT 36, the Tribunal confirmed that the policy which underlies the prohibition on disclosure in the secrecy provision is relevant, and that the extent to which the prohibition on disclosure is subject to exceptions may assist in identifying the policy behind the provision. The Tribunal took into account the exceptions to the secrecy provision in section 664 of the Local Government Act 1993 in ascertaining the underlying policy and found, at paragraph [67], that the prohibition on disclosure in that Act:
"... is no more than an expression by Parliament that disclosure of information obtained in the administration of the LG Act is to be done in an orderly and appropriate manner having regard to the purpose for which it was obtained or created. This in my view is reflected in the breadth of the circumstances in which information can be disclosed as set out in paragraphs 664(1)(a) to (e) (including under the GIPA Act) and subsection 664(1 B) Accordingly, in my view little weight can be given to this public interest consideration against disclosure "
In the present matter, the relevant policy that underlies the prohibition against disclosure is that in regard to the WHS Act.
The main object of the WHS Act, set out in section 3, is "to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces". The purpose of section 155 of the WHS Act is to grant the regulator power to compel a person to provide any information, documents or other evidence that the person may have in relation to a possible contravention of the WHS Act. Section 148 of the WHS Act prohibits the disclosure of information obtained in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention other than in limited specified circumstances. Section 271 applies if a person obtains information or gains access to a document in exercising any power or function under the WHS Act.
I agree with the Respondent that section 271 of the WHS Act provides a comprehensive protection against disclosing the information unless one or more of the identified exceptions found in section 271(3) of the WHS Act applies. The Respondent consulted with BCC to seek its views in regard to the access application and BCC maintains its objections to the release of the information. In my view, none of the other section 271(3) exceptions applies.
In my view, a contravention of Section 271 of the WHS Act would occur if the information was released.
[3]
Findings
In my view, clause 6(1) of the Table to section 14 should be given significant weight. I am satisfied that in the circumstances of this matter, the consideration against disclosure outweighs the considerations in favour of disclosure.
I note the Respondent's contention that other considerations against disclosure also apply to the withheld information. I agree that there is a need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions. I also agree that that SafeWork's ability to obtain similar information from other sources in the future would be impaired by disclosure of the information. While I am in general agreement with the Respondent in this regard to these considerations against disclosure, given my finding in regard to clause 6(1) of the Table to section 14 I do not need to consider those matters further.
In my view, the Respondent has made the correct and preferable decision and therefore it should be affirmed.
[4]
Order
1. The decision under review is affirmed.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2019
Parties
Applicant/Plaintiff:
Fraser
Respondent/Defendant:
SafeWork NSW
Cases Cited (3)
GIPA Act provisions
The Tribunal has jurisdiction to review the decision under section 100 of the GIPA Act which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the ADR Act.
The Respondent bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act.
The GIPA Act has an objects provision at section 3 which includes a reference at section 3(2)(a) that the legislation be applied so as to further those objects. The objects of the GIPA Act are as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure or the Respondent is otherwise entitled to refuse to deal with the access application. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.
Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides:
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
[Note: The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
The Tribunal must determine whether or not the Respondent was justified in determining that there was an overriding public interest against disclosure of the information withheld. The Tribunal can affirm the Respondent's decision, set aside the decision, or parts of the decision, and order the release of the withheld information, or remit the matter to the Respondent for reconsideration.
Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19.
The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. The only public interest considerations against disclosure that may be taken into account are those listed in the Table. The public interest test must be applied in accordance with the principles set out in section 15 of the GIPA Act.
Submissions
Mr Bell provided submissions in support of the Respondent's position.
As noted above, clause 6(1) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to constitute a contravention of a provision of another Act that prohibits the disclosure of information.
It is submitted that section 271 of the WHS Act provides a comprehensive protection against disclosing any of the information which has come into the knowledge of the Respondent in the course of exercising its functions under the WHS Act. It is further submitted that this protection applies to the information that is the subject of this application.
If any person was to disclose any of the information that BCC provided in response to the Notice issued to it under section 155 of the WHS Act, that person would be committing an offence undersection 271(2) of the WHS Act unless one of the provisions in section 271(3) is applicable.
For example, section 271(3)(a) would prevent an offence being committed if BCC consented to disclosure of the information. However, BCC did not consent to disclosure. It is submitted that because of the lack of consent, the exception to the confidentiality provision under section 271(3)(a) of the WHS Act does not apply. The Respondent further submits that none of the other exceptions in section 271(3) apply in the circumstances of this matter.
Pursuant to clause 6(2) of the Table to section 14, the public interest considerations under this clause extend to a consideration of the policy that underlies the prohibition against disclosure. Mr Bell provided submissions in regard to the policy underlying section 271 of the WHS Act. He submitted that the breadth of the wording of the prohibition in section 271(2) of the WHS Act is indicative of an intention by the Legislature to provide a comprehensive protection against disclosing any information which has come into the knowledge of the Respondent in the course of exercising either a power, or a function under the WHS Act.
It is further submitted that by providing a distinct statutory offence under section 271(2) of the WHS Act the Parliament has expressed an intention to provide the highest possible protection against disclosure of:
1. any and all information obtained in the course of exercising any power or function under the WHS Act; and/or
2. the contents of and/or any information contained within any document to which anyone within the Respondent has obtained or gained access to in the course of exercising any power or function under the WHS Act.
Mr Bell relies on views in regard to section 271 of the WHS Act expressed by Hall J in Perilya v Nash [2015] NSWSC 706 at paragraph 10 of the decision:
[T]he WHS Act contains protective provisions. In particularly, s 271 is directed at ensuring confidentiality in relation to information obtained.
Mr Bell also referred to the Second Reading Speech by Mr Andrew Stoner, Deputy Premier, dated 6 May 2011 on the introduction of the Work Health and Safety Bill 2011. It is submitted that it is consistent with the stated policy intent of the WHS Act to read section 271 as one of the Act's protective provisions. The provision is directed at ensuring confidentiality of information coming into the possession of persons exercising a function or power of the Respondent. Mr Andrew Stoner stated:
"Through the inclusion of many policy innovations, the bill strengthens the capacity of regulators to work with businesses and workers to improve health and safety and reduce the tragedy of workplace death and injury...".
Mr Bell submitted that any provision having the effect of maintaining the confidentiality of information obtained or accessed in exercising any power of function under the WHS Act should be given a broad construction that would promote the purpose or object of the WHS Act.
It is further submitted that treating section 271 of the WHS Act as a secrecy provision within the meaning of Clause 6(1) of the Table to section 14 of the GIPA Act, is to give section 271 a construction which will have the effect of promoting both:
1. the express objects of the WHS Act as a whole which include, in section 3(1)(e) "securing compliance with the Act through effective compliance and enforcement measures"; and
2. an implied purpose of section 271 of the WHS Act, being to ensure confidentiality of information obtained in the course of administering the Act.
The policy underlying the prohibition in section 271 is directed at ensuring confidentiality of information obtained by the Respondent and also strengthening the capacity of regulators to work with businesses and workers to improve health and safety, a further overriding public interest against disclosure arises in this case in relation to the information provided by BCC.
It is submitted that a public interest consideration against disclosure thus arises from the operation of clause 6(1) in the Table to section 14 of the GIPA Act in the circumstances of this matter.
The Respondent also relies on the considerations set out in clauses 1(d) and 1(f) of the Table to section 14 of the GIPA Act.
The Respondent relies on the considerations set out in clause 1(d) pertaining to prejudicing the supply of confidential information to an agency that facilitates the effective exercise of that agency's function.
The Respondent also submits that the information that BCC provided is clearly confidential material and that if information of this type were disclosed to the public, BCC would have concerns to in relation to providing similar information to the Respondent in the future.
The Respondent further submits that the public interest in maintaining the flow of information to SafeWork to assist in the effective exercise of its functions under the WHS Act is compelling. It contends that its ability to obtain similar information from other sources in the future would be impaired by disclosure of the information. It contends that public confidence in the Respondent's scope for protecting confidential information provided to it in the exercise of its investigative powers under the WHS Act is at risk of being seriously undermined.
The Respondent contends that when weighing up the evidence and material in this case, and having regard to the cases raised above, on balancing the competing interests, the public interest considerations against disclosure outweigh those in favour of disclosure. It is therefore submitted that the correct and preferable decision is to affirm the decision