Fraser v SafeWork NSW

Discussion and findings

This appeal is brought as an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013. The appeal may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel. The appellant does not seek leave to appeal.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In circumstances where the appellant is not legally represented, the Tribunal should generally approach the issue by looking at the grounds of appeal generally, and determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast at [12]. The Appeal Panel has adopted that approach in considering the grounds stated by the appellant in his Notice of Appeal.
The Appeal Panel is not persuaded that any of the specific matters as summarised in paragraph [10] above as a ground of appeal is made out, for the following reasons.
The appellant has not shown how there was any error in matter 2018/348202 proceeding on a more limited basis than in the initial access request. It appears that during the case conference process before the hearing the appellant had reduced the number of answers to the 28 questions asked of BCC that he was requesting, however BCC maintained its objection, as noted in the transcript of the hearing of 17 June 2019 (T 51). The scope of the matters in contention in the review was clarified during the hearing, the appellant confirming he sought access to only some of the answers provided by BCC which he believed the public interest would be served, and had provided a list (T63), which he discussed during the hearing (T65-68).
The transcript of the proceedings below confirms that both matters 2018/348202 and 2019/53517 were listed for hearing on 17 June 2019. The appellant confirmed that in 2019/53517 he had agreed he was seeking access to the WHS questionnaire, which had been provided to him. There was some discussion of the date of the document provided and whether it was the same as the one relating to the 2017 incident. On further evidence being provided, the appellant stated he had been given all he had asked for (T 56), and withdrew the application in 2019/53517 (T 59), confirming he was no longer pressing the case. Matter 2019/53517 was dismissed, and the hearing of matter 2018/348202 then proceeded. The transcript confirms that while both matters were listed on the same day each was considered separately to the other. There is no error shown in that process.
No error is established in relation to the third matter raised in the Notice of Appeal. The BCC was not a party to the proceedings. Having been consulted by the respondent as required by s 54 of the GIPA Act as to whether access should be granted, it was entitled under s 104(3) of the GIPA Act to appear and be heard in the proceedings, however it did not take part in the hearing below. In an email dated 4 March 2020 to the respondent BCC confirmed its opposition to disclosure of its responses to the questions, and that it did not seek to be a party at the hearing of the appeal. Having regard to the task of the Tribunal on a review under s 100 of the GIPA Act, as summarised by the Tribunal at [9]-[19] of the reasons, and the provision in s 271(3)(a) of the WHS Act, the continued opposition by BCC to disclosure of the information was a relevant factor to be taken into account by the Tribunal.
The fourth matter identified in the Notice of Appeal reflects a possible confusion as to why the Tribunal was considering the "foundations" of the WHS Act in 2011. The respondent was relying on cl 6 of the Table to s 14 of the GIPA Act; and cl 6(2) required consideration of the policy underlying the prohibition against disclosure. As the transcript makes clear (at T101-102) that was the focus of the Tribunal's inquiry, and the parties were given an opportunity to provide submissions after the hearing on 17 June 2019 as to what that underlying policy might be. No error is established.
The Tribunal's discussion at [72]-[74] of the authorities to which the respondent had referred was undertaken in the context of cl 6(2), and there was no error in the Tribunal considering how the policy referred to in that provision might be identified.
None of the specific points raised by the appellant demonstrate any error on the part of the Tribunal below, let alone an error on a question of law. While not clearly expressed, in his statement in the Notice of Appeal as to the orders sought, the appellant appears to be contending that access to information stated to be in breach of another Act should only be restricted if the Tribunal decides that to do so would not undermine the principles in the GIPA Act. That proposition raises the question as to whether the Tribunal properly engaged in the task of balancing, as required by s 13 of the GIPA Act, the public interests in favour of disclosure and those against disclosure. If the Tribunal failed to engage properly with the issues before it, that would be an error of law, a proposition confirmed by the Appeal Panel recently in Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81: 43. It will be an error of law if a Tribunal Member does not deal with an issue that was before him or her for determination. In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31- 34] an Appeal Panel cited the following authorities in support of this proposition: 31 In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: 'The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. 32 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: 'It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.' 33 In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: 'In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error.' 34 In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: 'It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below'
The Tribunal's statement at [76] that s 271 of the WHS provides a "comprehensive protection" against disclosing information unless one or more of the identified exceptions in s 271(3) of the WHS Act applies, is undoubtedly correct. The Tribunal noted that BCC had objected to disclosure, and that the exception in s 271(3)(a) was not available; that is also undoubtedly correct.
Section 271 of the WHS prohibits disclosure of information or the giving of access to a document obtained in exercising "any power or function" under that Act. The answers provided by BCC to the questions asked by the respondent were provided in compliance with the Notice under s 155. The exceptions to the prohibition on disclosure include at s 271(3)(e), the disclosure of information or the giving of access to a document "that is required or authorised under a law", which would include a determination to provide access under the GIPA Act.
The Tribunal's conclusion at [77] that a contravention of s 271 of the WHS Act would occur if the information was released was based on the preceding finding in [76] that none of the other exceptions in s 271(3), that is, the exceptions in paragraphs (b) to (f), applied. However, in the absence of detailed consideration as to whether the public interests against disclosure in cl 1(d) or (f) of the Table to s 14 of the GIPA Act applied as contended by the respondent, in circumstances where BCC was required to provide the information by s 155(5) of the WHS Act, or how the public interests in favour of disclosure should be balanced with those against, it is not clear how the Tribunal reached the conclusion that s 271(3)(e) would not be available as an exception to the prohibition on disclosure. The Tribunal did refer to the cl 1(d) and (f) considerations briefly at [79], however the conclusion that the ability to obtain information in future would be impaired by disclosure of the information, in the context of the exercise of the power under s 155 of the WHS Act, was not explained.
It is not clear from the approach adopted by the Tribunal in [79] to consideration of the public interest provisions in cl 1(d) and (f) whether the Tribunal regarded cl 6(1), and s 271, as applying in effect a conclusive presumption of an overriding public interest against disclosure. If that were the approach in fact adopted, that would reflect an error of law. Section 11 of the GIPA Act provides that that Act overrides a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified exceptions, other than a provision of a law listed in Sch 1 as an overriding secrecy law. Clause 1 of Sch 1 to the GIPA Act identifies the relevant overriding secrecy laws, and s 271 of the WHS is not included in that list.
The transcript does not assist in understanding how the issue was approached. The respondent's submissions below, while acknowledging that the Tribunal could order release under s 271(3)(e) after having gone through the usual exercise of considering the public interest in favour of disclosure, and whether that would have the effect of prejudicing the future supply of information (T 80), were also framed in terms of s 271 providing a comprehensive protection against disclosing any information which had come into the knowledge of the respondent in the course of the exercise of its functions under the WHS Act, a protection which would be applicable even if the information had been provided voluntarily (T 71). A further submission was made that the penalty provision in s 271(2) was an indication that the s 271 protection was intended by Parliament as being a mandatory provision, and that an absolute protection was provided (T 87).
A further cause for uncertainty as to how the Tribunal framed the task is that while the documents in dispute had been handed to the Tribunal at the hearing (T 91), the reasons for decision do not indicate whether the Tribunal considered those documents in order to address the issues posed in cl 1(d) and (f), or how the public interests in favour of disclosure should be weighed. While the Tribunal correctly identified at [9] that s 63 of the Administrative Decisions Review Act 1997 required the Tribunal to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law, that determination would in the ordinary case require the Tribunal to have regard to the documents to consider whether disclosure could "reasonably be expected to" have any of the effects specified in the provisions in the Table to s 14 of the GIPA Act, and the public interests in favour of disclosure.
The Appeal Panel is not persuaded that the Tribunal properly applied the relevant provisions of the WHS Act and the GIPA Act in reaching its conclusion. A failure to exercise jurisdiction conferred is an error of law, and the appeal should be allowed. The proceeding should be remitted to the Tribunal to consider the issues in accordance with these reasons. It will be a matter for the Tribunal to determine, having considered in context the public interests against disclosure as framed in the Table to s 14, whether those public interests on balance outweigh the public interests in favour of disclosure so that disclosure of the documents is authorised under the GIPA Act and thus under s 271(3) of the WHS Act.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (9)

Cited By (6)