Illawarra Retirement Trust v Secretary, Department of Health and Ageing

introduction 1 A decision of a Deputy President of the Administrative Appeals Tribunal ('the Tribunal') has given rise to two applications to this Court. One is in the form of an appeal from the decision of the learned Deputy President and the other is in the form of a cross‑appeal from that decision. 2 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') relevantly provides: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (2) … (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. (2B) … (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) ….'

3 Order 53 of the Federal Court Rules is concerned with Federal Court practice in respect of appeals under the AAT Act. Order 53 r 13(1) is in the following terms: 'A respondent who desires to appeal from a part of the decision from which the applicant has appealed, or to seek a variation of a part of the decision, need not institute a substantive appeal, but he shall, within 21 days after the service upon him of the notice of appeal, or within such further time as the Court or a Judge may allow, file in the Registry a notice of cross-appeal and serve a copy of the notice upon the applicant and every other party to the proceedings.' 4 In my view the validity of O 53 r 13(1) of the Federal Court Rules is open to doubt. The subrule arguably constitutes an attempt to amend par 44(2A)(a), and possibly subs 44(1), of the AAT Act. However, as the validity of O 53 r 13(1) has not been challenged, I consider it appropriate to assume its validity for the purpose of hearing and determining the purported cross‑appeal ('the cross‑appeal'). The cross‑appeal was not instituted in compliance with par 44(2A)(a) of the AAT Act but, I assume, in compliance with O 53 r 13(1). 5 The Chief Justice directed that the appeal and cross-appeal be heard by a single judge. The appeal and the cross‑appeal were heard together. Each of them calls for consideration of the proper construction of important provisions of the Freedom of Information Act 1982 (Cth) ('the FOI Act') and the relationship between those provisions and provisions of the Aged Care Act 1997 (Cth) ('the Aged Care Act') intended to protect the confidentiality of certain information acquired under or for the purposes of that Act.

BACKGROUND FACTS 6 On 29 December 2001 Doris Joan Reynolds ('Mrs Reynolds') died. During most of 2001 Mrs Reynolds had lived in an aged care hostel owned and operated by the Illawarra Retirement Trust ('the IRT'). Mrs Reynolds' children lodged a complaint with the Aged Care Rights Service about the care that Mrs Reynolds had received in the aged care hostel. The complaint was handled under the Aged Care Complaints Resolution Scheme. The Aged Care Complaints Resolution Scheme is administered by the Department of Health and Ageing ('the Department'). 7 As a result of the complaint made about the care that Mrs Reynolds had received a first report, called a Detailed Analysis Team Report ('the DAT report'), was created in the Department. The DAT report was referred to the Aged Care Standards and Accreditation Agency ('the Agency'). The Agency undertook a 'support contact visit' to the aged care hostel. Following this visit a Support Contact (Site) Record ('the SCS record') was produced and received in the Department. 8 One of Mrs Reynolds' children, Norma Jean Duncan ('Dr Duncan'), sought access under the FOI Act to the DAT report and the SCS record. The DAT report and the SCS record are each a 'document of an agency' within the meaning of s 11 of the FOI Act (see the definition of 'document of an agency' contained in s 4 of the FOI Act). That agency is the Department. Initially Dr Duncan's request for access to the DAT report and the SCS record was refused on the basis that each of the documents was an exempt document by reason of the provisions of subs 38(1) and subs 43(1) of the FOI Act ('the first decision'). 9 Dr Duncan sought internal review of the first decision. The outcome of the internal review of the first decision was as follows: (a) a decision was made to release the DAT report, with some material deleted, to Dr Duncan ('the second DAT report decision'); and (b) a decision was made that Dr Duncan was not entitled to have access to the SCS record because it was an exempt document under s 38, pars 40(1)(a) and (b) and par 43(1)(c) of the FOI Act ('the second SCS record decision'). 10 The IRT sought internal review of the second DAT report decision. Following internal review the second DAT report decision was affirmed ('the third DAT report decision'). 11 Dr Duncan applied to the Tribunal for review of the second SCS record decision and the third DAT report decision. The IRT applied to the Tribunal for review of the third DAT report decision. The two applications for review were heard together. The Tribunal affirmed both of the decisions under review.

The FOI regime 12 The legal entitlement of a member of the public to have access to a wide range of documents held by public authorities, including Departments of the Australian Public Service, derives from s 11 of the FOI Act. Section 11 provides: '(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document. (2) Subject to this Act, a person's right of access is not affected by: (a) any reasons the person gives for seeking access; or (b) the agency's or Minister's belief as to what are his or her reasons for seeking access.' 13 A person who wishes to take advantage of the legally enforceable right created by s 11 of the FOI Act must make a written request for the document in a manner that complies with subs 15(2) of the FOI Act. On receiving a request the relevant agency or Minister is required to deal with it expeditiously (subs 15(5)). 14 As s 14 of the FOI Act recognises, a person may obtain access to a document held by an agency or a Minister without seeking to enforce the right given by the FOI Act. Section 14 of the FOI Act provides that nothing in that Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents) otherwise than as provided by that Act, where they can properly do so. Nonetheless, as the terms of s 11 make clear, the FOI Act creates no legally enforceable right of access to a document at a time when the document is an exempt document (see also subs 18(2) of the FOI Act). Consistently with this position, subs 58(2) of the FOI Act imposes the following limitation on the power of the Tribunal when reviewing a decision made by an agency or Minister to refuse to grant access to a document in accordance with a request made under the FOI Act: 'Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.' 15 Part IV of the FOI Act gives the status of exempt documents to documents of various categories. Those categories include documents to which certain secrecy provisions of other enactments apply (s 38), documents concerning certain operations of agencies (s 40) and documents containing information that is commercially valuable or the disclosure of which could unreasonably affect lawful business, commercial or financial affairs adversely (s 43). 16 Section 22 of the FOI Act obliges an agency in certain circumstances to create an edited version of a document to which access has been requested. Subsection 22(1) provides: '(1) Where: (a) an agency or Minister decides: (i) not to grant a request for access to a document on the ground that it is an exempt document; or (ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and (b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy: (i) would not be an exempt document; and (ii) would not disclose such information; and (c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy; the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.' 17 As the terms of s 22, and a number of other sections, of the FOI Act make clear, for the purposes of the FOI Act an edited version of a document created pursuant to s 22 is a separate document from the original document. 18 Section 27 of the FOI Act is intended to protect the position of any person, organisation or undertaking that may have a legitimate interest in whether a document is found to be an exempt document under s 43. Section 27 provides as follows: '(1) Where a request is received by an agency or Minister in respect of a document containing information concerning: (a) a person's business or professional affairs; or (b) the business, commercial or financial affairs of an organisation or undertaking; a decision to grant access under this Act to the document or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15(5) and (6)): (c) the agency or Minister has given to the person or organisation or the proprietor of the undertaking a reasonable opportunity of making submissions in support of a contention that the document or edited copy is an exempt document under section 43; and (d) the person making the decision has had regard to any submissions so made. (2) Where, after any submissions have been made in accordance with subsection (1), a decision is made that the document or edited copy, so far as it contains the information referred to in subsection (1), is not an exempt document under section 43: (a) the agency or Minister shall cause notice in writing of the decision to be given to the person who made the submissions, as well as to the person who made the request; and (b) access shall not be given to the document or edited copy, so far as it contains the information referred to in subsection (1), unless: (i) the time for an application to the Tribunal by that person in accordance with section 59 has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or (ia) such an application has been made but the Tribunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975; or (ii) such an application has been made and the Tribunal has confirmed the decision. (3) Nothing in paragraph (2)(b) prevents access being given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the further request.' 19 The only right to seek review by the Tribunal of a decision concerning access to a document containing information of the kind referred to in pars 27(1)(a) and (b) is that contained in s 59 of the FOI Act. Subsection 59(1) provides: '(1) Where, on a request having been made for access to a document containing information concerning: (a) a person's business or professional affairs; or (b) the business, commercial or financial affairs of an organisation or undertaking; an agency or Minister decides that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 43, the person or organisation, or the proprietor of the undertaking, may apply to the Tribunal for a review of the decision.' 20 In Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156 ('the Mitsubishi case') at 161 the Full Court of the Federal Court held that s 59 of the FOI Act provides a right of review only in respect of a decision that a document is not exempt under s 43; it does not provide a right of review in respect of a decision to grant access to a document so as to allow the Tribunal to give consideration to whether the document is an exempt document under any other provision of Part IV of the FOI Act.

decision of the tribunal 21 The Tribunal at [60] of its written reasons for decision rejected a challenge made by Dr Duncan to the jurisdiction of the Tribunal to hear and determine the application purportedly made to it by the IRT. Dr Duncan had contended that the application purportedly made by the IRT to the Tribunal was not authorised by s 59 of the FOI Act. 22 The reasons for decision of the Tribunal reveal that, on the final day of the hearing before the Tribunal, the IRT made an application in writing to be made a party to the proceeding brought by Dr Duncan (see s 30(1A) of the AAT Act). The application to the Tribunal under s 30(1A) of the AAT Act was clearly made in response to the jurisdictional challenge made by Dr Duncan. At [65] of its reasons for decision the Tribunal deals with the IRT's application to be made a party to the proceeding brought by Dr Duncan in the following sentences: '… On the final day of the hearing, the IRT made an application in writing to be made a party to the proceedings brought by Dr Duncan. To the extent that there is any jurisdictional difficulty in the IRT's application, the Tribunal considers that the IRT should be joined as a party to Dr Duncan's proceedings. Both Dr Duncan and the Department agree, and the Tribunal finds, that the IRT's interests are clearly affected by the decision under review in the proceedings instituted by Dr Duncan.' 23 The Tribunal did not formally pronounce or otherwise explicitly make an order making the IRT a party to the proceeding instituted by Dr Duncan. However, in my view, it is plain that the Tribunal intended that, if any jurisdictional difficulty attended the application for review made by the IRT, the IRT was to be treated as a party to Dr Duncan's application. The Tribunal, it seems, proceeded on the basis that the IRT would be free to advance the same submissions on the hearing of its own application to the Tribunal as it could were it joined under s 30(1A) of the AAT Act as a party to Dr Duncan's application to the Tribunal. This was not correct as the Mitsubishi case makes clear. It is regrettable that the Tribunal's attention was not drawn to the Mitsubishi case. I note incidentally that the IRT was allowed to make submissions to the Tribunal both in respect of its own application and in respect of Dr Duncan's application. Before this Court it was also heard on all issues in respect of which it wished to make submissions. 24 The Tribunal at [66] of its reasons for decision identified the substantive issues before it in the following way: '… the Tribunal must determine (1) whether the DAT Report should be released to Dr Duncan either in full or with the deletions made by Ms Kerr and (2) whether the SCS Record should be released to Dr Duncan. This turns on whether the DAT Report and SCS Record are "exempt documents" pursuant to the provisions of the FOI Act and Aged Care Act.' 25 The Tribunal's conclusion with respect to the DAT report is recorded at [76]-[77] of its reasons for decision as follows: 'In the Tribunal's opinion, the DAT Report with deletions should be disclosed to Dr Duncan. The Tribunal had regard to the object of the FOI Act stated in s 3(1) to allow access to information in the possession of the Commonwealth Government. The DAT Report contains information relating to the care of Mrs Reynolds at William Beach Gardens. In the Tribunal's opinion, it is in the public interest that such information be disclosed to Dr Duncan, as permitted by s 86-3 of the Aged Care Act. This will assist her in assessing the care afforded to her mother and more generally in forming a professional judgment as a doctor as to the care afforded to the elderly in such retirement complexes. However, the Tribunal cautions that care must be taken in the weight to be accorded to the DAT Report given that it was based on what was essentially a desk audit, without a site visit being made, and without the IRT being given the opportunity to respond, as Mr Macdonald acknowledged. The Tribunal recognises the IRT's concerns expressed by Mr Leighton, to which Dr Duncan should have regard in forming any judgment relying on the DAT Report.' 26 The Tribunal concluded at [78] that it was not in the public interest that the SCS record be disclosed to Dr Duncan as it contains information of a general nature relating to the operation of the aged care hostel and makes no specific reference to Mrs Reynolds' case. The Tribunal further concluded at [82] that disclosure of the SCS record would not be in the public interest as the effectiveness of site visits by the Agency 'could be compromised if the parties were constrained because the resultant report was to become a public document'. Additionally, the Tribunal concluded at [88] that the SCS record contains information about the IRT's operation of the aged care hostel which is of a commercially sensitive nature. 27 The Tribunal affirmed the two decisions under review; that is, the second SCS record decision and the third DAT report decision.

question of law 28 The questions of law that constitute the subject matter of these appeals (see Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321 per Branson and Stone JJ at [6]-[18]) are all questions of statutory construction. They raise issues concerning the proper construction of subs 30(1A) and 44(1) of the AAT Act, par 3(1)(b), s 36, subs 38(1A), s 40, pars 43(1)(b) and (c) and subs 54(1D) of the FOI Act and pars 86-3(a) and (b) of the Aged Care Act. Where appropriate the individual questions are set out below.

The validity of the IRT's Appeal 29 The amended notice of appeal identifies the questions of law raised on the appeal as questions concerning the proper construction of par 86‑3(a) of the Aged Care Act and par 3(1)(b), s 36 and subpar 43(1)(c)(i) of the FOI Act. The orders sought by the amended notice of appeal include the following: '(a) The Appeal be allowed (b) The decision of the Administrative Appeal Tribunal in Decision No 2003/999 dated 16 July 2004 that the Detailed Analysis Team Report, with deletions dated 18 June 2002 be disclosed to the Second Respondent, be set aside. (c) A Declaration that the Detailed Analysis Team Report be held to be an exempt document, the disclosure of which is not in the public interest. (d) The decision of the Administrative Appeal Tribunal in Decision No N2003/999 dated 16 July 2004 that the Support Contact Site Record not be disclosed to the Second Respondent, be affirmed.' 30 Dr Duncan challenged the jurisdiction of the Court to hear the appeal instituted by the IRT on two bases. First, that the IRT's application to the Tribunal for review of the third DAT report decision was incompetent with the result that any appeal from the decision of the Tribunal on that application was incompetent. Secondly, that the Tribunal did not make an order joining the IRT as a party to Dr Duncan's application for review of the second SCS record decision. This challenge to the Court's jurisdiction must be considered ahead of any other issue arising on the purported appeal. 31 I turn first to the issue of the competence of the IRT's application to the Tribunal. Dr Duncan contended that: (a) the IRT was not entitled by subs 54(1D) of the FOI Act to apply for internal review of the second DAT report decision because that decision was not a determination that a document or an edited copy of a document is not an exempt document under s 43 of the FOI Act; and (b) the IRT, by its application to the Tribunal, did not exercise the entitlement given to an organisation by subs 59(1) of the FOI Act to apply to the Tribunal for review of a decision that a document concerning the business, commercial or financial affairs of the organisation 'is not an exempt document under section 43'.

Consideration of these contentions calls for examination of the history of Dr Duncan's application for access to the DAT report.

32 It is accepted by the parties that the DAT report contains information concerning the business, commercial or financial affairs of the IRT. Dr Duncan's application under the FOI Act for access to the DAT report therefore required the Department to comply with the requirements of s 27 of the FOI Act. Subsection 27(1) requires in the circumstances that a decision to grant access to the DAT report, or to an edited copy of the DAT report, not be made without the IRT being given 'a reasonable opportunity of making submissions in support of a contention that the document or edited copy is an exempt document under section 43'. 33 By letter dated 2 January 2003 the Department sought comments from the IRT on whether s 43 of the FOI Act rendered the documents to which Dr Duncan sought access, or edited copies of the documents, exempt documents. The IRT responded to the Department's letter of 2 January 2003 by a letter dated 17 January 2003. The IRT submitted that the DAT report and the SCS record were both exempt documents. In the alternative with respect to the DAT report, the IRT submitted that the DAT report should be edited by the deletion of two complete paragraphs of the report. 34 By letter dated 31 January 2003 the Manager, Aged Care and Planning Branch (NSW) advised Dr Duncan of the first decision in the following language: 'I have decided to exempt both these documents from disclosure under section 38 and paragraph 43(1)(c) of the FOI Act.' 35 Although the language in which the first decision was expressed is unfortunate, the first decision is to be understood as a decision that both of the documents to which Dr Duncan sought access were at that time exempt documents under s 38 and par 43(1)(c) of the FOI Act. 36 As mentioned above, Dr Duncan sought internal review of the first decision. By letter dated 8 April 2003 Dr Duncan was advised in the following terms of the outcome of that internal review process: '(a) I have decided to set aside the original decision not to grant your request for access to the Detailed Analysis Team report dated 18 June 2002 on the basis that the document was an exempt document under sections 38 and 43(1)(c) of the FOI Act. I have decided instead to release the document, with some exempt material deleted. Section 22 of the FOI Act allows for the release of documents with deletions of exempt or irrelevant matter if the delegate decides that some parts of the document would reasonably be regarded as exempt, or irrelevant to the request. (b) I have decided to vary the original decision not to grant your request for access to the Support Contact (site) Record dated 22 July 2002 on the basis that the document was an exempt document under sections 38 and 43(1)(c) of the FOI Act. My decision is not to grant your request for access to the document on the basis that the document is an exempt document under sections 38, 40(1)(a) and (b) and 43(1)(c) of the FOI Act.' 37 I note that when the IRT was advised of the second DAT report decision the decision was expressed in slightly different terms. The terms in which the decision was expressed in the letter dated 8 April 2003 to the IRT suggest that some irrelevant material had been deleted from the edited copy of the DAT report. I have not found it necessary to resolve whether the State Manager decided to grant Dr Duncan access to a copy of the DAT report edited to delete only exempt material (as the letter to Dr Duncan suggests) or edited to delete exempt matter and irrelevant material (as the letter to the IRT suggests). 38 The second DAT report decision can only be understood in the circumstances to involve the following decisions: (a) a decision not to grant Dr Duncan's request for access to the DAT report on the ground that it was an exempt document; (b) a decision to create a copy of the DAT report with such deletions that the copy would not be an exempt document; and (c) a decision to grant Dr Duncan access to the edited copy of the DAT report on the basis that it was not an exempt document.

For this reason, in my view, the second DAT report decision involved a decision that the edited copy of the DAT report was not an exempt document under any provision of Part IV of the FOI Act. It thus involved a decision that the edited copy of the DAT report was not an exempt document under s 43 of the FOI Act.

39 Subsection 54(1D) of the FOI Act relevantly provides: '… where: (a) on a request of a kind mentioned in subsection 27(1) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains information concerning a person, organisation or proprietor of an undertaking, is not an exempt document under section 43 by virtue of containing that information; and (b) … ; the person, organisation or proprietor may, by application in writing to the agency, request a review of the decision.'

In my view, subs 54(1D) authorised the IRT to apply in writing to the Department requesting a review of the second DAT report decision to the extent that it involved a decision that the edited copy of the DAT report was not an exempt document under s 43 of the FOI Act. I therefore reject the contention of Dr Duncan that the IRT was not entitled under subs 54(1D) of the FOI Act to apply for internal review of the second DAT report decision.

40 Following internal review of the second DAT report decision, that decision was confirmed by the third DAT report decision. As the second DAT report decision involved a decision that the edited copy of the DAT report was not an exempt document under s 43 of the FOI Act, the third DAT report decision, which confirmed the second DAT report decision, is also to be understood to involve a decision that the edited DAT report was not an exempt document under s 43 of the FOI Act. For this reason the IRT's application to the Tribunal for review of the third DAT report decision was an application for review of a decision that an edited copy of the DAT report was not an exempt document under s 43 of the FOI Act. 41 The contention of Dr Duncan that the IRT's application to the Tribunal was not an application under s 59(1) of the FOI Act because it did not seek review of a decision that a document was not an exempt document under s 43 of that Act must therefore fail. However, in reviewing the third DAT report decision on the IRT's application, the Tribunal was constrained to considering only the issue of whether the edited copy of the DAT report was an exempt document under s 43 of the FOI Act. It was not free to consider whether that document was an exempt document under any other provision of Part IV of the FOI Act (Mitsubishi case). 42 My rejection of Dr Duncan's challenge to the jurisdiction of the Court to hear the appeal instituted by the IRT does not lead necessarily to a conclusion that the amended notice of appeal is wholly competent. The IRT, as a party to its own proceeding before the Tribunal, was entitled to appeal to this Court, on a question of law, from the decision of the Tribunal in that proceeding. However, by its amended notice of appeal the IRT seeks to do more than that. By its amended notice of appeal the IRT seeks, in addition to orders with respect to the DAT report and the edited copy of the DAT report, an order that the decision of the Tribunal affirming the second SCS record decision itself be affirmed. Such an order is not appropriately sought on an appeal from the decision of the Tribunal on the IRT's application for review of the third DAT report decision. As the Full Court pointed out in Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 452: 'As a matter of principle, it must be correct … that the powers and discretions referred to by s 43(1) [of the AAT Act] are the powers and discretions vested in the original decision‑maker for the purposes of making the decision under review. They do not include any powers and discretions that may be vested in the decision‑maker for some other purpose.'

43 Even if the view be taken that the Tribunal joined the IRT as a party to Dr Duncan's application for review of the second SCS record decision, and that the amended notice of appeal relates in part to the Tribunal's decision on Dr Duncan's application, it would not be open to the IRT to appeal from the decision of the Tribunal in order to seek this Court's affirmation of the decision of the Tribunal. An appeal is a procedure intended for the correction of error; not the affirmation of right decisions. I turn below to the question of the powers of the Tribunal, if any, under Division 86 of the Aged Care Act (see [52]‑[60]).

44 I conclude that the amended notice of appeal is competent only to the extent that it raises questions of law relevant to its contention that the edited copy of the DAT report is an exempt document under s 43 of the FOI Act. This conclusion is deliberately not expressed in terms of the Court's jurisdiction. The Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) is sufficiently wide to enable it, in a proceeding appropriately initiated, to rule on all issues raised by the amended notice of appeal.

consideration 45 I turn now to consider the merits of the appeal and cross‑appeal.

Section 38 of the FOI Act 46 The amended notice of cross‑appeal identifies the following question of law as arising on the cross‑appeal: 'Whether on a proper construction of sub‑section 38(1A) of the Freedom of Information Act 1982, and Part 6.2 of the Aged Care Act 1997, the cross‑claimant's right of access to the Support Contact (Site) Record under sections 11 and 22 of the Freedom of Information Act 1982 is not affected by its classification as an "exempt" document under sub‑section 38(1) of the Freedom of Information Act 1982.'

The proper construction of subs 38(1A) of the FOI Act can only be considered in the context of the proper construction of s 38 as a whole.

47 It is convenient to consider the proper construction of s 38 ahead of the other substantive provisions of the FOI Act on which reliance is placed by the parties because if it was established before the Tribunal that any document was an exempt document under s 38 of the FOI Act, the Tribunal had no power to decide that access to that document, so far as it contained exempt matter, was to be granted (see [14] and [59]). 48 Section 38 of the FOI Act relevantly provides: '(1) Subject to subsection (1A), a document is an exempt document if: (a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and (b) either: (i) that provision is specified in Schedule 3; or (ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment. (1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.' 49 Schedule 3 of the FOI Act specifies, amongst other statutory provisions: 'Aged Care Act 1997, subsection 86-2(1) and sections 86‑5, 86‑6 and 86‑7.' 50 It is accepted on these appeals that some information contained in each of the DAT report and the SCS record is 'protected information' within the meaning of Division 86 of the Aged Care Act. Subsection 86-2(1) renders the disclosure by a person of 'protected information' acquired by that person in the course of performing duties or exercising power or functions under that Act a criminal offence. Subsection 86-2(2) provides that the section does not apply to certain specified conduct or to a particular kind of disclosure. 51 It was submitted by Dr Duncan that subsection 86‑2(1) of the Aged Care Act does not in terms prohibit disclosure of protected information; it merely sets out the consequences of disclosure. This is literally true. However subsection 86‑2(1) provides that, subject to subsection 86‑2(2), a person who discloses 'protected information' that he or she has acquired in the course of performing duties, or exercising powers or functions, under the Aged Care Act is guilty of an offence and liable to be imprisoned for up to two years. It is, I conclude, clear that at least a disclosure of information by a person in circumstances that would render that person liable to be convicted of an offence under subsection 86‑2(1) of the Aged Care Act is a disclosure prohibited under a provision of the Aged Care Act for the purposes of s 38 of the FOI Act. The more difficult question, as it seems to me, is the significance so far as s 38 of the FOI Act is concerned of subs 86‑2(2) and s 86‑3. 52 Section 86-2 of the Aged Care Act relevantly provides: '(1) A person is guilty of an offence if: (a) the person makes a record of, discloses or otherwise uses information; and (b) the information is *protected information; and (c) the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act. Penalty: Imprisonment for 2 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) This section does not apply to: (a) conduct that is carried out in the performance of a function or duty under this Act or the exercise of a power under, or in relation to, this Act; or (b) the disclosure of information only to the person to whom it relates; or (c) conduct carried out by an approved provider; or (d) conduct that is authorised by the person to whom the information relates; or (e) conduct that is otherwise authorised under this or any other Act.' Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).' 53 It would, in my view, undermine the obvious purpose of Division 86 of the Aged Care Act if subs 86‑2(2) were construed in such a way that subs 86-2(1) were inoperative in the context of any application under the FOI Act. If par 86‑2(2)(e) is construed to include conduct authorised under the FOI Act, the inclusion of subs 86‑2(1) in Schedule 3 of the FOI Act would be meaningless. Plainly the legislature did not intend the inclusion of the subsection in Schedule 3 to be meaningless. The key to the proper interpretation of subs 38(1), as it seems to me, is to notice that the subsection is concerned to identify documents or information the disclosure of which is prohibited rather than with conduct which is proscribed. This explains, in my view, why Schedule 3 of the FOI Act specifies subs 86‑2(1) and ss 86‑5, 86‑6 and 86‑7 of the Aged Care Act but not subs 86‑2(2) or ss 86‑3, 86‑4, 86‑8 or 86‑9. Each of subs 86‑2(1) and ss 86‑5, 86‑6 and 86‑7 are concerned to prohibit the disclosure of information acquired in a particular way. Subs 86‑2(2) recognises that some disclosures of the information identified in subs 86‑2(1) may be authorised and ss 86‑3, 86‑4, 86‑8 and 86‑9 themselves authorise particular individuals or bodies in certain circumstances to disclose information otherwise protected from disclosure by Division 86. The apparent purpose of specifying in Schedule 3 of the FOI Act subs 86‑2(1) and ss 86‑5, 86‑6 and 86‑7 of the Aged Care Act is to ensure that information protected under Division 86 of the Aged Care Act is not disclosed other than as authorised by that Division. 54 I conclude that, for the purposes of subs 38(1) of the FOI Act, 'protected information' acquired in the circumstances identified in par 86‑2(1)(c) is information the disclosure of which is prohibited under subs 86‑2(1), being information acquired by a person in the course of performing duties or exercising powers or functions under the Aged Care Act. On this approach, pars 86‑2(2)(b) and (d) have significance for the purposes of subs 38(1A), in that they exempt from the proscription on disclosure contained in subs 86‑2(1) disclosure to particular classes of persons but they do not, other than indirectly by reason of the opening words of the subsection, have significance for the purposes of subs 38(1). 55 The significance of s 86‑3 of the Aged Care Act in the context of the FOI Act is, in my view, quite different from the significance of pars 86‑2(2)(b) and (d). Section 86‑3 authorises the Secretary of the Department ('the Secretary') to disclose protected information to specified classes of people or in specified circumstances. In particular, par 86‑3(b) authorises the Secretary to disclose protected information: 'to a person who is, in the opinion of the Secretary, expressly or impliedly authorised by the person to whom the information relates to obtain it.' 56 When the Secretary discloses protected information in circumstances authorised by s 86‑3 of the Aged Care Act, the disclosure is made under the Aged Care Act, not under the FOI Act. Section 86-3 has no relevance, in my view, to the operation of subs 38(1A) of the FOI Act as it does not affect a person's right to access to a document under the FOI Act. It is only the Secretary, acting under the Aged Care Act, who s 86‑3 exempts from the prohibition contained in s 86‑2. No other person may rely on the exception contained in s 86‑3. 57 I note incidentally that a person who uses protected information disclosed to him or her under s 86‑3 is guilty of a criminal offence if he or she uses it for a purpose other than the purpose for which the information was disclosed (par 86‑5(c)). I did not hear argument on the significance of s 86‑5 of the Aged Care Act for Dr Duncan should she wish to disclose information obtained by her pursuant to s 86‑3 of the Aged Care Act. I express no view on that question. 58 As is mentioned above, s 86‑3 gives the Secretary authority to disclose protected information to certain classes of people and in certain circumstances. In the events that happened in this case, the second DAT report decision was made by a delegate of the Secretary. In the course of reaching the second DAT report decision, the delegate of the Secretary exercised the authority vested in the Secretary to disclose to Dr Duncan the protected information contained in the edited DAT report on the basis that, in her opinion, Dr Duncan was a person authorised by Mrs Reynolds to obtain it. As is mentioned above, this disclosure was a disclosure authorised by the Aged Care Act; it was not the granting of access to a document under the FOI Act. 59 The delegate of the Secretary did not exercise the authority given to the Secretary by s 86‑3 of the Aged Care Act in respect of the protected information contained in the unedited DAT report or in the SCS record. Disclosure of protected information in the unedited DAT report and in the SCS record remains prohibited by subs 86‑2(1) of the Aged Care Act, under a provision of an enactment specified in Schedule 3 of the FOI Act. The unedited DAT report and the SCS record are therefore exempt documents under s 38 of the FOI Act. 60 A decision of the Secretary under s 86‑3 of the Aged Care Act is not a 'reviewable decision' within the meaning of Division 85 of the Aged Care Act. The Aged Care Act does not provide that applications may be made to the Tribunal for review of decisions made under s 86‑3 of the Aged Care Act (see s 25 of the AAT Act). As the unedited DAT report and the SCS report are exempt documents under s 38 of the FOI Act, the Tribunal had no power to decide that access to them, so far as they contained exempt matter, was to be granted. 61 The answer to the question of law set out in [45] above is that the cross‑claimant's asserted right of access to the SCS record under s 11 of the FOI Act is affected by its classification as an exempt document under subs 38(1) of the FOI Act.

Section 40 of the FOI Act 62 The amended notice of cross‑appeal identifies the following question of law concerning s 40 of the FOI Act: 'Whether on a proper construction of section 40 of the Freedom of Information Act 1982, there was any evidence to support the finding that the Support Contact (Site) Record was, pursuant to s 40 of the Freedom of Information Act 1982, an exempt document because disclosure of the document under that Act would, or could reasonably be expected to (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; or (b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency.'

The wording of the above question reflects part of the reasons given for the second SCS record decision. That decision affirmed the original decision not to grant Dr Duncan access to the SCS record but while the first decision placed reliance on s 38 and s 43 of the FOI Act, the second SCS record decision placed reliance additionally on s 40 of the FOI Act.

63 In view of my above conclusion that disclosure to Dr Duncan of the protected information contained in the SCS record was not authorised under Division 86 of the Aged Care Act, the above question need not be answered. It is appropriate to note, however, that s 40 gives a document the character of an exempt document if its disclosure under the FOI Act would, or could reasonably be expected to, have one of the outcomes identified in pars 40(1)(a)-(e). An authorised person under the FOI Act is required, before granting access to a document under the FOI Act, to reach a judgment on whether the document is an exempt document under s 40. The authorised person is required to make this judgment rationally having regard to the nature and content of the document. He or she is not to take into account irrelevant considerations or seek to achieve an improper purpose. However, nothing in s 40 of the FOI Act requires an authorised person to conclude that a document is not exempt under s 40 unless evidence is adduced on the issue of whether disclosure of the document would or could reasonably be expected to lead to one of the outcomes identified in pars 40(1)(a)‑(e).

Section 43 of the FOI Act 64 The amended notice of cross‑appeal identifies the following question concerning s 43 of the FOI Act: 'Whether on a proper construction of paragraphs 43(1)(b) and (c) of the Freedom of Information Act 1982, the Tribunal, in refusing disclosure of the Support Contact (Site) Record to the cross‑claimant because the Support Contact (Site) Record contained "commercially sensitive" information, erred in law in not applying the statutory criteria set out in paragraphs 43(1)(b) and (c) of the Freedom of Information Act 1982.' 65 The amended notice of appeal identifies a similar question, namely: 'Whether on the proper construction of s 43(1)(c)(i) of the Freedom of Information Act 1982, the Tribunal, in determining whether to release the document in question, is bound to take into account: ii. the potential use of the document in question, and iii. that the release would disclose information which could reasonably affect the applicant adversely in respect of its lawful business or professional affairs.' 66 Again my conclusion in respect of s 38 of the FOI Act makes it strictly unnecessary to answer these questions. Plainly, however, a decision that a document is an exempt document under s 43 of the FOI Act must be reached by reference to the statutory criteria specified in s 43. Whether or not the Tribunal did apply those criteria in deciding that the SCS record was an exempt document under s 43 of the FOI Act is to be determined by reference to the Tribunal's reasons for its decision. In this case the Tribunal gave reasons in writing for its decision. Subsection 43(2B) of the AAT Act requires the Tribunal, where it gives reasons in writing for its decision, to include in those reasons its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 67 Paragraphs 43(1)(b) and (c) of the FOI Act provide as follows: '(1) A document is an exempt document if its disclosure under this Act would disclose: (a) …; (b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or (c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information: (i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or (ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.' 68 In its reasons in writing at [83] the Tribunal purports to set out the relevant criteria contained in pars 43(1)(b) and (c) of the FOI Act. Paragraph 83 is in the following terms: 'Section 43(1) provides relevantly that a document is exempt if it would disclose "information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed", or information "concerning the business, commercial or financial affairs of an organisation or undertaking, being information" the disclosure of which would or could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of information to the Commonwealth or an agency.' 69 A comparison between [83] of the Tribunal's reasons in writing and subpar 43(1)(c)(i) reveals that [83] omits an important element of the statutory criterion, namely the requirement that the information be information 'the disclosure of which would, or could reasonably be expected to, unreasonably affect … that organization … in respect of its lawful business, commercial or financial affairs' (emphasis added). 70 The conclusion of the Tribunal on the issue of whether the SCS record was an exempt document under subs 43(1) of the FOI Act is recorded in [88] in the following terms: 'With regard to the SCS Record, the Tribunal's decision is that this should not be disclosed to Dr Duncan. The Record contains information about the IRT's operations of William Beach Gardens which is of a commercially sensitive nature.' 71 In the immediately preceding paragraph of its reasons in writing the Tribunal had referred to 'commercially sensitive information of the kind referred to in s 43(1)'. I conclude that the reference in [88] to information of a 'commercially sensitive nature' is to be understood as though it also included the words 'of the kind referred to in s 43(1)'. The Tribunal's reference to 'commercially sensitive' information rather than to 'commercially valuable' information leads me to conclude that the Tribunal sought to apply the criterion contained in subpar 43(1)(c)(i). Having regard to the misstatement of this criterion contained in [83] of the Tribunal's reasons in writing, I conclude that the Tribunal did not apply the relevant statutory criterion. 72 The question set out in [64] should therefore be answered 'Yes'. However, because of my conclusion concerning s 38 of the FOI Act, this answer does not lead to the grant of relief sought by Dr Duncan. The question set out in [65] need not be separately answered.

Section 86‑3 of the Aged Care Act 73 The remaining two questions of law identified in the amended notice of cross‑appeal and one of the questions identified in the amended notice of appeal concern the proper construction of section 86‑3 of the Aged Care Act. As stated above, the Tribunal is not authorised to review decisions under s 86‑3 of the Aged Care Act. It is therefore not appropriate to answer these questions of law on these appeals from the decision of the Tribunal.

Other questions 74 The amended notice of appeal identifies additional questions of law relevant to the edited DAT report said to be raised on the appeal. However, these questions are not questions of law that arise in relation to the decision of the Tribunal on the IRT's application to the Tribunal under subs 59(1) of the FOI Act. They are not appropriate to be answered on the IRT's appeal from that decision.

conclusion 75 Although my consideration of the questions of law identified in the amended notice of appeal and the amended notice of cross‑appeal has revealed some errors in the process of reasoning adopted by the Tribunal, the answers to those questions do not give rise to any grounds upon which the actual decision of the Tribunal should be interfered with. Each of the appeal and the cross‑appeal must, in my view, be dismissed. I will hear the parties on the appropriate orders to be made as to costs. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the Applicant: Elizabeth Winterbottom

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: J Bishop and J Hammond

Solicitor for the Second Respondent: William Whitting

Date of Hearing: 10 February 2005