the applicant's submissions
23 The applicant represented himself in the hearing before this Court. His submissions were somewhat discursive, and sometimes difficult to follow. Nonetheless, as I understood those submissions, he presented essentially the same case as he had before the Tribunal.
24 The applicant submitted that the Tribunal had failed to give effect to the aims, and philosophy, of the FOI Act. The underlying rationale of that Act was "open and accountable government", and it should therefore be interpreted in such a way as to promote that objective.
25 The applicant began by noting that, in January 1996, ASIC commenced an investigation into his affairs. In November 1998, it banned him from acting as a company director for three years. Subsequently, in December 2000, he pleaded guilty, in the Victorian County Court, to several charges under ss 232(6) and 1317FA of the Corporations Law. The proceedings related to allegations that the applicant had made improper use of his position as an officer of Townsend and Parker Pty Ltd (Riton Holdings Pty Ltd (in liq)) (ACN 069 470 891) and of Lawrenson Metal Casting Pty Ltd (formerly Townsend and Parker Holdings Pty Ltd (ACN 070 242 189), and also that he had falsely claimed to be Mr Paul Brodie, who was in fact his brother-in-law and a director of those companies, in order to gain a financial advantage. On 15 December 2000, he was sentenced to a term of 18 months' imprisonment. That term was wholly suspended.
26 In July 1999, the applicant wrote to the Victorian Regional Commissioner of ASIC to complain about the conduct of ASIC's staff in relation to its investigation into his affairs. ASIC undertook an internal investigation into the applicant's complaints and, as noted earlier, Mr Simon Dwyer, the Acting Regional Commissioner for Tasmania, carried out that investigation. Mr Dwyer prepared the Report, which was in two parts. Part one dealt with the applicant's complaint that ASIC's original investigator, a Mr Cook, had abused his office, and taken enforcement action for an improper purpose. Part two dealt with the complaint regarding Mr Brodie's name having been put on to the Register. In substance, the applicant contended that ASIC had acted precipitously in including Mr Brodie's name on the Register. Had ASIC acted appropriately, and delayed including that name on the Register, the applicant would have been able to avoid having the HSBC Bank appoint a Receiver and Manager to his business, thereby salvaging it.
27 As previously noted, Mr Dwyer cleared Mr Cook of any impropriety in the conduct of the investigation into the applicant's affairs. He also concluded that there had been no impropriety by any member of ASIC's staff in entering Mr Brodie's name onto the Register.
28 As also previously noted, the applicant then complained to the Commonwealth Ombudsman about the Report. On 29 June 2001, the Ombudsman advised the applicant that he had rejected his complaints. There then followed the applicant's various requests under the FOI Act, their rejection, at least in part, and the applicant's challenge to that decision in the Tribunal.
29 The applicant explained, from the bar table, that at the time he committed the offences to which he pleaded guilty in the County Court, his brother-in-law, Mr Brodie, was living in Townsville. He was a director and shareholder of the applicant's companies. The applicant explained that by notice dated 13 August 1998, ASIC had asked Mr Brodie to show cause why he should not be prohibited from being a director, or from taking part in the management of a company. That followed an investigation into his conduct as a director.
30 On 11 June 1999, ASIC banned Mr Brodie from acting as a director for a period of two years and two months from 12 May 1999, the date on which he was served with a notice of prohibition. It was some twenty-eight days after that date that ASIC entered Mr Brodie's name onto the Register.
31 Mr Brodie sought review of the decision to ban him, and also a stay of that decision. The applicant complained that ASIC told Mr Brodie that his name would not be entered on the Register until at least 7 July 1999, being the last date on which he could seek review. Notwithstanding that assurance, Mr Brodie's name was put on the Register in June.
32 It should be noted that neither Mr Dwyer, nor the Ombudsman accepted the applicant's claim that Mr Brodie had been given any such assurance.
33 The applicant said that, at the time, he was in the process of changing his companies' banking arrangements from the HSBC Bank to Westpac. The manager of the particular branch of Westpac with whom he was dealing expressed a desire to meet Mr Brodie in order to obtain a clearer picture of those companies' objectives. It was in those circumstances, and in particular in the context of a heated and very public dispute that the applicant was having with a trade union, and a Member of Parliament allegedly acting at that union's behest, that the applicant sought to conceal from the manager his involvement with those companies. He therefore pretended to be Mr Brodie when he met the bank manager. The applicant claimed that Mr Brodie had, at all times, been fully aware of what he was doing, and that Mr Brodie had freely and voluntarily signed and executed all relevant documents.
34 The applicant then explained in still more detail why he believed that ASIC had conducted an investigation into his affairs. The theory was essentially that there had been a conspiracy on the part of certain ASIC officers to cause him harm. He alleged that they had gone to the HSBC Bank on a number of occasions, and that they had arranged for certain documents on the ASIC database to be backdated in order to deceive the bank into thinking that Mr Brodie had been acting as a director after he had been banned. This, in turn, led the bank to "pull the plug" on the applicant's companies. To make matters worse, this was at a time that both ASIC, and the HSBC Bank were aware that the applicant was about to acquire a large company in Adelaide, ostensibly now worth $100 million.
35 The applicant then turned to his notice of appeal. By that notice, he simply asserted that the Tribunal had erred in its interpretation and application of the following sections of the FOI Act: ss 37(1)(b), 37(2)(b), 40(1)(c), 40(1)(d), 41, 42 and 45.
36 In his oral submissions, the applicant contended that the Tribunal had "totally ignored" the FOI Act. When asked specifically what error or errors he submitted that the Tribunal had made in dealing with, for example, s 37(1)(b), he replied that this provision could not have been intended to apply to cases such as his own. He submitted that anyone who had had a complaint made against them to a body like ASIC was entitled to know the identity of the complainant, and the substance of the complaint. He submitted that s 37(1)(b) was of limited application, and could only be invoked to protect the identity of persons who were under police protection, as recognised police informers.
37 In support of that submission, the applicant relied primarily upon a document apparently issued by the Attorney-General's Department regarding the operation of the FOI Act, and published on that Department's website. That document contains a set of guidelines to the interpretation of that Act. It characterises s 37(1)(b) as applying to documents "the disclosure of which would, or could reasonably be expected to affect the enforcement of a law for the protection of public safety", inter alia, by revealing the existence of a confidential informant. It suggests that in order for this exemption to apply, the document should have a connection with the criminal law, or the processes of upholding or enforcing civil law. The guidelines make specific reference to s 37(2A) which provides that, for the purposes of s 37(1)(b), a person "is taken to be" a confidential source of information in relation to the enforcement or administration of the law if the person is receiving or has received police protection under a witness protection program.
38 The applicant submitted that as those persons whose identities ASIC sought to protect under s 37(1)(b) were not receiving protection under any witness protection program, it could not rely upon the exemption contained in that section at all. In other words, he claimed that s 37(2A) prevented any reliance upon s 37(1)(b). The Tribunal, however, had granted exemption for a number of documents in part at least upon that provision. To that extent, the Tribunal had erred in law.
39 The applicant next turned to the Tribunal's finding that s 37(2)(b) rendered a number of the documents exempt. That section provides that a document is exempt if its disclosure would or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating or dealing with breaches of the law, the disclosure of which would be reasonably likely to prejudice the effectiveness of those methods or procedures. He submitted that the Tribunal had erred in adopting an unduly wide interpretation of this provision. He further submitted that the Tribunal had erred in requiring him to demonstrate that the exemption did not apply, rather than requiring ASIC to demonstrate that it did.
40 The applicant submitted that the provisions of the FOI Act that provided access to documents should be accorded the widest possible interpretation in order to achieve the aims and objectives of that Act. He submitted that Parliament could hardly have intended to allow government departments to withhold documents that merely caused embarrassment, under the aegis of a provision such as s 37(2)(b). He argued that the section only applied where the release of the documents might significantly prejudice law enforcement. He distinguished between the activities of mere regulatory bodies such as ASIC, and genuine law enforcement bodies such as the police. He also distinguished between the investigation of "serious" crimes, and mere violations of the Corporations Law.
41 The applicant then turned to the exemption granted under ss 40(1)(c) and (d). These provisions exempt documents the disclosure of which would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel, or a substantial adverse effect on the proper and efficient conduct of the operations of an agency. By virtue of s 40(2), s 40(1) does not, however, apply to a document in respect of matter the disclosure of which under the FOI Act would, on balance, be in the public interest.
42 The Tribunal concluded that because a number of the documents contained the names or personal details of staff members who had been interviewed, the release of this information would severely hinder ASIC's operations. The applicant submitted that the Tribunal erred in failing to appreciate that the onus rested upon ASIC to justify an exemption on these grounds. He contended that the Tribunal had simply glossed over the paucity of material to support its findings regarding these provisions, and effectively reversed the onus of proof. He posed the rhetorical question, how could it be in the public interest for ASIC to spend huge amount of money protecting innocuous documents?
43 The applicant next turned to s 41. That section provides that a document is exempt if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about any person. The aim of the section is to protect personal privacy. The Tribunal invoked this section to exempt from disclosure the private telephone numbers, and home addresses, of ASIC staff. As I understood the applicant's submissions, he did not challenge that part of the Tribunal's reasons.
44 Section 41 was only invoked in relation to a handful of documents. One of those documents was provided to me so that I could assess for myself whether the privacy concerns expressed by ASIC were reasonable. I shall return to this matter later in these reasons for judgment.
45 The next provision under which ASIC claimed exemption was s 42. That section provides that a document is exempt if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. Once again, the applicant sought to rely upon the guidelines prepared by the Attorney-General's Department, and in particular, upon the broad statement of aims and objectives underlying the FOI Act. He was not able to point to any specific error on the part of the Tribunal in relation to its application of this section.
46 The final provision that ASIC had relied upon was s 45. Section 45(1) provides that a document is exempt if its disclosure under the FOI Act would found an action, by a person other than the Commonwealth, for breach of confidence. The section does not apply to certain classes of document that are specifically set out in s 45(2). The applicant referred to the Attorney-General's Department's guidelines, and in particular, the five separate criteria identified therein as rendering s 45(1) applicable. He submitted that these criteria could not conceivably have been met, particularly since most of the people who had provided information to ASIC had been required by statute to do so.