Fraser v SafeWork NSW

The Decision under Appeal

1. The Tribunal identified the provisions conferring jurisdiction to review a decision made by an agency under the GIPA Act, including that under s 105 of the GIPA Act the respondent agency bears the onus of establishing that its decision was justified. The Tribunal noted that the task on external review was to 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 identified at [18] that s 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, and that in applying the public interest test under s 13, it was necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure, and determine where the balance lies.
2. The Tribunal agreed (at [22]) with the public interests in favour of disclosure as identified by the parties. At [23] the Tribunal noted that the respondent identified clauses 1(d) and 1(f) and clause 6 of the Table to s 14 of the GIPA Act as relevant public interests against disclosure, and at [26] noted the respondent's position: 26.The Respondent submitted that there is an overriding public interest against disclosure in relation to the BCC answers because on balance the Applicant's research interest in the BCC answers and any associated public interest in disclosing them is necessarily outweighed by the need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions by all means through the issue of notices under section 155 of the WHS Act and otherwise.
3. The Tribunal referred to the evidence on which the respondent relied, being evidence from Mr Ian Blume, manager of Inspector Lennon who had issued the Notice under s 155 of the WHS Act, and Ms Sue Stewart, the officer who had overseen the processing of the access request. The Tribunal considered the submissions made by each of the parties.
4. At [66] the Tribunal stated that the public interest consideration against disclosure under cl 6 of the Table to s 14 of the GIPA Act should be given significant weight, and provided a basis for concluding that the respondent had made the correct and preferable decision. The Tribunal referred to the s 155 Notice, stating that through that Notice BCC was compelled to provide answers to the questions asked by SafeWork, and that it was a requirement that any records obtained through a formal WHS notice to produce information were dealt with in a confidential manner. The Tribunal noted that cl 6(1) of the Table to s 14 of the GIPA Act provided that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act; and that cl 6(2) required consideration of the policy that underlies the prohibition against disclosure. The Tribunal referred to two previous Tribunal decisions, Collins v Department Finance, Services and Innovation [2018] NSWCATAD 60, on the non-disclosure provision in s 81 of the Taxation Administration Act 1996, and Clarke v Blacktown City Council [2013] NSWADT 36 on the secrecy provision in s 664 of the Local Government Act 1993. The Tribunal then considered s 271 of the WHS Act: 75 In the present matter, the relevant policy that underlies the prohibition against disclosure is that in regard to the WHS Act. 76 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. 77 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. 78 In my view, a contravention of Section 271 of the WHS Act would occur if the information was released.
5. The Tribunal's conclusions were: 78 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. 79 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. 80 In my view, the Respondent has made the correct and preferable decision and therefore it should be affirmed.

The Appeal

1. In his Notice of Appeal the appellant identified five matters of concern: 1. That the Tribunal proceedings including case conferences had enabled a modified request to be only for release of lawfully acceptable information, that is with a de-identified third party; 2. His two matters 2019/0053517 and 2018/348202 had been combined in a single hearing; 3. BCC has consistently worked to have no information available, undermining the legal principles of the GIPA Act; 4. The respondent's submissions had put forward the foundations of the SafeWork legislation in 2011 and ignored the current foundations for work health and safety used in transport in 2017, 2018 and 2019, being the 2017 WHS Regulations and the current WHS 2011 amendments; and 5. The cases to which the Tribunal referred were based on legislative differences with no similarity to his matter.
2. The appellant stated as the orders he considered the Appeal Panel should make: I would like to see NCAT provide a decision that does not affirm the inconsistency of SafeWork New South Wales having some of their legally requested NSW WHS Act (section 155 of the Work Health and Safety Act 2011 ("the WHS Act") information excluded from Public disclosure and other requested information NSW WHS Act (section 155 of the Work Health and Safety Act 2011 ("the WHS Act") not excluded from Public disclosure. This order can make mention of the NCAT compliance of restricting information that is in breach of another Act when and only if NCAT decides such a ruling would not undermining the core principles of the an NCAT determination of what may be legally released to ensure the meaning and objects of other Acts (WHS Act, GIPA Act) are in both their design to provide Public transparency and in the ongoing improvement to build a culture of responsibility for safety in the workplace as legislated in NSW WHS pre 2011, the 2011 amendments and the 2017 Regulations.
3. The respondent's Reply supported the orders of the Tribunal, stating that the modification of the original request for access to a more limited request did not alter the effect of the confidentiality provisions in s 271 of the WHS Act relied on by the respondent; the two matters were not combined in a single hearing, as matter 2019/0053517 was formally discontinued by the appellant and 2018/348202 was heard as a contested hearing; and the remaining matters raised did not disclose any error in the application of the WHS Act or the GIPA Act.
4. In support of the appeal the appellant provided documents relating to proposed amendments to the WHS Act and an extract from the Second Reading speech for the Work Health and Safety Amendment Bill 2013; and extracts of transcript from the sound recording of the hearing on 17 June 2019.
5. The respondent provided a full transcript of the hearing below, and copies of documents relating to the processing of the access request including consultation with BCC, the witness statements to which the Tribunal had referred, and the submissions made by the parties below. The respondent provided written submissions on the appeal.
6. In oral submissions on the appeal the appellant questioned why BCC was able to hide information. He stated that there is an inconsistency between release of some but not all of the documents which do not differ from answers provided to the Coroner and NSW Police. He submitted that the decision put too much emphasis on privacy, when the privacy issue has not been consistently applied. He submitted that in considering the purpose of the non-disclosure provision, that should be based on the law in 2020 and current debate in Parliament, and not the 2011 Second Reading speech.
7. In oral submissions the respondent submitted there was no error of law, that the Tribunal had considered the evidence on the issue of prejudice to provision of information in future. The BCC had asked the investigator to issue a s 155 Notice because it wanted to protect privacy. There was no error in the application of s 155 and s 271 of the WHS Act, and the Tribunal gave appropriate weight to privacy.
8. In reply the appellant questioned why he had been given access to some information with redactions, but not all. He submits that the Tribunal should override s 271 of the WHS Act because there is no evidence that disclosure would affect future disclosures. He is aware that no blame was attributed to anyone for the 2017 incident and there have been no prosecutions. He does not want disclosure of the name of the garbage truck driver. He is critical of how SafeWork operates, and considers that the operational section and the information section do not know what the other is doing.

Relevant legislation

1. The Notice to BCC was issued under s 155 of the WHS Act, which relevantly provides as follows: 155 Powers of regulator to obtain information (1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act. (2) The regulator may, by written notice served on the person, require the person to do one or more of the following - (a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge, … (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty - (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000. (6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse. …
2. Section 271 of the WHS Act provides: 271 Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7). (2) The person must not do any of the following - (a) disclose to anyone else - (i) the information, or (ii) the contents of or information contained in the document, (b) give access to the document to anyone else, (c) use the information or document for any purpose. Maximum penalty - (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document - (a) about a person, with the person's consent, or (b) that is necessary for the exercise of a power or function under this Act, or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use - (i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or (iv) is necessary for the recognition of authorisations under a corresponding WHS law, or (v) is required for the exercise of a power or function under a corresponding WHS law, or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or (e) that is required or authorised under a law, or (f) to a Minister. …
3. The public interests against disclosure as specified in the Table to s 14 of the GIPA Act on which the respondent relied were clauses 1(d) and (f), and clause 6: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

Discussion and findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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).
6. 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.
7. 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.
8. 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.
9. 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.
10. 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'
11. 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.
12. 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.
13. 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.
14. 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.
15. 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).
16. 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.
17. 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.

Orders

1. The Appeal Panel orders: 1. The appeal is allowed. 2. The Tribunal decision of 31 October 2019 is set aside. 3. The application for administrative review of the decision to refuse access to information, being the information provided to the respondent by Blacktown City Council relating to an incident on 27 March 2017 involving a garbage truck operated by Blacktown City Council, is remitted to the Administrative and Equal Opportunity Division for reconsideration in accordance with these reasons.

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: 22 May 2020