McKenzie, B.L. v. Department of Social Security [1986] FCA 169

Re Sinclair v. Secretary to the Department of Social Security (Q85/47 - 16th October 1985)

Southern Centre of Theosophy Inc. v. South Australia (1979-80) 27 ALR 59 per Gibbs J. at 66

Department of Health and McKay v. Jephcott (Federal Court of Australia - unreported - 4 October 1985 (Foster J.)

Luzaich v. United States (1977) 435 F. Supp. 31 at 35

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr I.A. Wilkins (Member) and Mr G.D. Grant (Member) BERYL L. McKENZIE v. SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr

2. Applicant to pay respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Sir William Prentice (Senior Member), Mr I.A. Wilkins (Member) and Mr G.D. Grant (Member } BETWEEN : BERYL L. McKENZIE

This is an appeal from a decision of the Administrative Appeals Tribunal dated 24th January last. By reason of s.44 of the Administrative Appeals Tribunal Act 1975 it is an appeal on a

At relevant times the applicant was in receipt of a pension from the Department of Social Security having been deserted by her husband. On 9th April 1985 the Department received a handwritten letter dated 2nd April 1985. The letter

ill laves with her husband Mr McKenzie. Sometimes in

her place. sometimes in his place. Mr McKenzie supports her financially.

She might lie to you as she alwavs does. But this 1s the truth.

I am just doing my duty to inform you. Thank you. Yours sincerely,

In accordance with its usual practice the Department invited the applicant to call. She was informed of the allegations, which were denied. Upon request by the Department she provided a written statement. The Department determined there was no substance in the letter and her entitlement was not varied. A note was made on the departmental file that, to use the words of the Tribunal the "purported information was to be disregarded". By request dated 27th April 1985 the Applicant sought a copy of the letter pursuant to the Freedom of Information Act 1982. In May 1985 the department replied and sent her a typed copy of the letter with the signature of the author deleted, pursuant to the power contained in s.22 of the Freedom of

Information Act. The officer writing the letter referring to the

basis of his decision stated inter alia, after reference to the

"2. This information was given to the Department on the implied basis that the information would remain confidential.

The letter went on te explain to the appiicant her right to a departmental review and 1f appropriate her right of appeal to

The applicant's father, on her behalf sought a review, and by letter dated 18th July the applicant was advised in effect that the earlier decision had been reviewed and affirmed, hence the appeal to the Administrative Appeals Tribunal. Upon the Tribunal hearing, evidence was given by officers of the department. The Tribunal succinctly but fairly summarised the

evidence which referred to departmental practice as follows:

"In evidence, the Regional Manager explained that upon the receipt of information from third parties, which might militate against the payment of a pension, an investigation is usually initiated. The Departmental Manual instructs however that a benefit is not to be aitered pending completion of such an investigation. A Field Officer 1s usually sent out to investigate. An average of six such pieces of information are it seems, received at the Fremantle office per week ~ in 1985 there were 150 in a period of 5 months. What is called a "Register of Dob-Ins" is kept. Some are thought to come from people who feel

they are acting in the public interest, others from

a that all information of the <x1ind 1s unsolicited;

o 1t 1s not discouraged. but is treated confidentially and is cegarded as potentially an important source for

assisting the administration of the Social Security Act

1947. More than half of the information so received is

another recent Tribunal decision; in Re Sinclair v. Secretary to

the Department of Social Security (985/47 - 16th October 1985).

"Ll. The information contained in the letter clearly related to the administration of the law within the

2. In the circumstances it should be implied that the letter "was both written and received under the

3. There were reasonable grounds for concluding that disclosure of the letter in its original handwriting and signed form, could reasonably be expected to enable a person to ascertain the

I refer to those sections of the Freedom of Information

Act 1982 emphasised by the applicant's counsel as requiring

Counsel for the applicants placed some emphasis upon the objects of that Act referred to in s,.3(1), one of which is to

extend "as far as possible" the right of the community to have access to information in the possession of government by creating a general right of access to information in documentary form in the possession of such government "limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected..." Part VI of the Act deals with the review of decision by the Tribunal and s.61

provides that in such proceedings the agency bears the onus of

establishing that the decision in question was justified.

In this case the partial exemption claimed was based on

"(1) A document 1s an exempt document if its disclosure under this Act would, or could reasonably be expected to -

(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply witha law relating to taxation or prejudice the

enftoccement of froper administration cf the law Li & PAYTLCuULSaY instance:

tb) disclose, or enable a person ta ascertain, the existence or identity of a confidential source of

information in relation to the enforcement or administration of the law: or

(2) A document 1s an exempt document if its disclosure under this Act would, or could reasonably be expected to-

(a) prejudice the fair trial of a person or the impartial adjudication of a particular case;

(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

lawful methods for the protection of public safety.

(3) In sub-sections (1) and (2), "law" means law of the Commonwealth or of a State or Territory."

Other grounds of exemption exist but the Department has at no stage claimed exemption under s.40(1)(d) on the ground that disclosure could reasonably be expected to "have a substantial adverse effect on the proper and efficient conduct of the

The essential question is whether the Tribunal was correct in law in being satisfied that release of the handwriting and signature could reasonably be expected to enable the applicant to ascertain "the existence or identify of a confidential source of information in relation to the enforcement or administration of

The applitant's argument can be summarised this way. Such letters to the department are exempt only if they can be reasonably described as a confidential source of information. Here it said the letter did not supply 'information' as such. To the contrary it contained only factual allegations found to be false, coupled with a malicious attack on the applicant who was in effect labelled as an inveterate liar. It contained not 'information' but 'disinformation', which is defined in the Concise Oxford Dictionary, 7th edition as deliberately false information. That publication defines information inter alia as an "informing, telling, thing told, knowledge, items of knowledge, news...". But it seems to me that deliberately false information, albeit malicious, coming into the hands of a department, which does not at the time of receipt know whether it is true or false 1s nevertheless at that time fairly labelled "information". The word misinformation goes merely to the true quality of the information. So when the letter comes into the hands of the department it must I think be treated as 'information', a word of common albeit wide meaning constantly used in the statute but which, wisely enough, the draftsman did not attempt to define. But that is not the end of the applicant's argument. Counsel submitted that it is at the time a client seeks disclosure of the document that the matter must be examined, a time it must be assumed in this case, when the department is satisfied the information was inaccurate and false. At that time when the document has lost all credibility can its author be aptly regarded

as a "confidential source of information in relation to the

enforcement or administration of the law"? That must be examined

unit' tne racaccrcund in this tase thas the department does not

elf know the source, but for reasons of overall policy does not wish to give the applicant an opportunity of ascertaining the identity of the person who has labelled her in a letter toa government agency as an habitual liar. Clearly it 15 the document itself, not a class of documents. which requires examination. Was then the Tribunal properly persuaded on the probabilities that this letter 1s by statute exempt from perusal by one who considers she has been thereby defamed. The 'object' section I have referred to talks of 'essential public interest' but the work such an objects clause has is limited. It 1s to s.37(1) that attention must be confined unless elucidation is required by reason of

ambiguity. (Southern Centre of Theosophy Inc. v. South Australia (1979-80) 27 ALR 59 per Gibbs J. at 66.)

Mr McPhee's written submission summarised those made during the hearing. He argues that the exemption applies only to sources of information which are established as having validity or accuracy. If the stage is reached when the department concludes that the information has no truth or validity in the sense that it does not influence a decision it ceases to have the protection of the Act as it can no longer be regarded as informative and the author can no longer be regarded as a confidential source of information, But I cannot accept such a narrow interpretation. Information prompting administrative inquiry, is still properly classified as information in the hands of the department, be it true or false. The department in the exercise of its responsibilities must and does regularly review the eligibility of

recipients of public monies. Some information may prove of value,

some ot no value. Mr McPhee submits that information which has resulted in action against the recipient by way of prosecution or

alteration in benefits payable 1s protected, but not otherwise.

In Sinclair (above) the Presiding Member the Hon. J.B.K. Williams considered with some care the origins of s.37(1)(b). He expressed the view that it gave Statutory recognition to pre-existing common law principles enumerated in cases such as

Reg. v. Lews Justices: Ex parte the Secretary of State for the

Home Department (1973) AC 388 and Dv. National Society for the

Prevention of Cruelty to Children (1978) AC 171. Those cases

emphasise that the confidentiality traditionally given to informers may operate to the advantage of the untruthful or Malicious but nevertheless immunity may be necessary when balanced

Be that as it may it is not I think necessary to go

The essential questions which faced the tribunal were:

(a) Was the letter in question a confidential source of

(b) If so was it properly classified as relating to the

(c) Would its release in toto disclose the identity of the confidential source or in the alternative could

As to (a) it was relevant that the letter bore no address. The author's concluding words "I am just doing my duty to inform you" may have significance in explaining the author's awareness of his ar her role as informer. The Tribunal did not err in my view by finding that it should be implied that "it was both written and received under the pledge of confidentiality". In Department of Health and McKay v. Jephcott (Federal Court of Australia - unreported - 4 October 1985). Forster J. observed "What then is a 'confidential source'?" I am content to accept the interpretation in Luzaich v. United States (1977) 435 F. Supp.

31 at 35 "a source is confidential if the information was provided

under an express or implied pledge of confidentiality".

As to (b) I can see no error in the Tribunal's approach. It stressed the duties and functions of the respondent under

the Social Security Act, and the fact that it prompted

investigation which called for no further action. There was adequate evidence to support the Tribunal's finding that "the letter clearly relates to the administration of the law within the meaning of s.37(1)(b)".

As to (c) the Tribunal reached its conclusion after

considering Department of Health and McKay v. Jephcott (above) a

case 1n which the Administrative Appeals Tribunal had held that

$.37(1)(b) did not exempt a document unless there was a

substantial risk that the enforcement or administration of the law

will be impaired 1f he (the confidential source) and others are

@everr2i foom giving sucn information by the ricx of Arseclas re ©

Mr Justice Davies commented in dealing with the words

"In my opinion, the paragraph imports no such element. The paragraph is umequivocal in terms and, in the context, has a sensible operation. It should be read according to its terms. No ground exists for implying a qualification. As Lord Mersey said in Thompson v Goold & Co. £1910] AC 409 at 420, "It is a strong thing to read into an Act of Parliament words which are not

there, and in the absence of clear necessity it isa wrong thing to do."

Against the factual background I consider no error has been demonstrated in the Tribunal's conclusion that the letter "in

its original handwriting and signed form could reasonably be

expected to enable the applicant to ascertain the identify of its

For the above reasons the Appeal must be dismissed.

I certify that this and the ten preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice