3. The respondent sought review of the Board's decision by the Tribunal. At the hearing, the Tribunal was informed by the respondent's legal representatives that access was sought to 33 documents described in each case as "claim form for compensation completed by insured worker".

4. Before the Tribunal, it was argued, on behalf of the Board, first, that the FOI Act did not apply to it at all; and, secondly, that disclosure of the material sought would involve a breach of confidence so that the documents were exempt material under s.45 of the FOI Act. The Tribunal decided that the Board, including its Insurance Division, was subject to the provisions of the FOI Act. The Tribunal also set aside the Board's decision, ruling that the documents described as "claim form for compensation completed by injured worker" were not exempt as claimed by the Board.

The Board's claim, as put to the Tribunal, that the FOI Act did not apply to it

5. Before the Tribunal, it was common ground that the FOI Act can apply to the Board only if it is an "agency" within the meaning of the FOI Act. An "agency" is defined, by s.4(l), to mean a Department or a "prescribed authority". So far as material, "prescribed authority" is defined, by s.4(l), to mean, inter alia, "a body corporate...established for a public purpose by, or in accordance with the provisions of, an enactment..." (Emphasis added) "Enactment" is defined to mean, inter alia, an Act.

6. It was submitted to the Tribunal, on behalf of the Board, that the FOI Act did not apply to it because it was not a "prescribed authority". It was accepted, on behalf of the Board, that it was established for a "public purpose" within the meaning of the statute. However, it was contended, on behalf of the Board, that the Board was not "established by,...or in accordance with, (a Commonwealth) enactment," for the following reasons: (a) the documents sought were exclusively within the possession of the Insurance Division of the Board as established under N.S.W. legislation; (b) that Division (i) was staffed exclusively by State employees; (ii) was licensed exclusively by reference to State legislation; (iii) performed no Commonwealth functions; (iv) was funded exclusively from its own finances.

7. In order to understand the Board's submission, it is

The Coal Industry Act 1946 ("the Commonwealth Act").

8. The long title to the Commonwealth Act describes it as an Act to provide means for securing and maintaining adequate supplies of coal throughout Australia and for providing for the regulation and improvement of the coal industry in the State of New South Wales, ("the State") and for other purposes. In the preamble, it is recited that it had been agreed between the Governments of the Commonwealth and of the State that they should (i) take measures for securing and maintaining adequate supplies of coal to meet the need for that commodity throughout Australia and in trade with other countries, and for providing for the regulation and improvement of the coal industry in the State and for other matters relating to the production, supply and distribution of coal; (ii) jointly establish authorities vested with power to take action designed to attain those objectives; and (iii) take all practicable steps to secure the passage by the respective Parliaments of legislation within their constitutional powers for the establishment of such authorities.

9. Relevantly, the Act provides as follows: The Governor-General may enter into an arrangement with the Governor of the State for the constitution of the Board (s.5(1)); the Board shall be a body corporate with perpetual succession (s.5(6)); the power and functions of the Board are to include the taking of such action as, in the opinion of the Board, is necessary or desirable, inter alia, to ensure the regular production of coal in the State and its economical use, and to promote the welfare of workers engaged in the coal industry in the State (s.14(1)); and the Board is to have power to establish workers' compensation insurance schemes and to require any employer in the coal industry in the State to effect with or through the Board all workers' compensation insurance in respect of his employees in that industry (s.16).

10. It will be recalled that reference is made in the preamble to the joint establishment of "authorities". Of immediate concern for our purposes is the Board. However, in Part V of the Commonwealth Act, which deals with industrial matters, provision is also made for the constitution of a Coal Industry Tribunal and of Local Coal Authorities.

11. The long title and preamble are in substantially the same terms as the Commonwealth Act. So far as presently material, the operative provisions of the State Act are similar to those of the Commonwealth Act.

The meaning and constitutional validity of the Commonwealth-State legislative scheme

12. The purpose and effect, and constitutional validity, of the Commonwealth-State legislative scheme has been considered by the High Court in two recent cases.

The Queen v. Duncan; Ex parte Australian Iron and Steel Pty. Ltd. [1983] HCA 29; (1983) 158 CLR 535

13. In holding that the Coal Industry Tribunal was validly constituted, Gibbs C.J., Mason, Murphy, Wilson, Deane and Dawson JJ. held that, although the Constitution effects a division of power between the Commonwealth and the States, it does not forbid them from exercising their respective powers in such a way that each is complementary to the other; that the Commonwealth and the States may, by co-operative action, simultaneously confer powers on one person and empower that person to exercise any or all of them alone or in conjunction; and that Commonwealth legislation otherwise within power is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth.

14. Gibbs C.J., with whom Murphy J. agreed "generally" (at p 566) and Wilson and Dawson JJ. agreed "substantially" (at p 567) said, (at p 553):

"the intention of the two legislatures was to

constitute one Tribunal whose authority depended

on the combined exercise of Commonwealth and

State powers. The Tribunal is constituted by the

statutes, rather than by the arrangement between

the Governor-General and the Governor. The terms

of the arrangement can have nothing to say as to

the powers of the Tribunal, since, once an

arrangement is made, and a person has been

appointed to constitute the Tribunal, the powers

and functions of the Tribunal will depend

entirely on the provisions of the statutes. I

incline to the view that the Tribunal, once

constituted, can exercise any of the powers

validly conferred on it either by the

Commonwealth or by the State Act. In other

words, it can exercise both Commonwealth and

State powers in the one case." (Emphasis added)

15. Brennan J. held that it is within the legislative competence of the Commonwealth to permit a tribunal established by Commonwealth law to exercise State power where that is consistent with the achievement of the object which the exercise of federal power is intended to achieve.

Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Limited [1987] HCA 28; (1987) 163 CLR 117

16. It was held by Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. that the Coal Industry Tribunal and the Local Coal Authorities were not required to exercise powers derived from the State Act in isolation from powers derived from the Commonwealth Act. The Court also held, applying Duncan's Case, that the joint operation of the Commonwealth and State Acts created a single tribunal rather than separate Commonwealth and State tribunals; and that the persons who constituted the Tribunal and the Authorities were officers of the Commonwealth within the meaning of s.75(v) of the Constitution, and remained so notwithstanding that they exercised powers conferred by the State Act.

"The Tribunal and the Local Coal Authorities derive

their existence from the Commonwealth Act and from the

State Act. They are, in short, joint Commonwealth and

State authorities. Although they exercise powers

conferred by Commonwealth and State laws, they stand

outside the category of State officers exercising

particular Commonwealth functions, as e.g., judges of

State courts exercising invested federal jurisdiction,

who have been held not to be officers of the

Commonwealth in relation to the exercise of

Commonwealth powers:"

"Given then that the authorities derive their existence

from the Commonwealth Act, although not exclusively so,

and that the Commonwealth Act either confers or

authorizes the conferral on the authorities of all or

any of their powers and functions, the persons

constituting the authorities are necessarily officers

of the Commonwealth and remain so in respect of the

exercise of all their powers unless, perhaps, the

Commonwealth Act evinces an intention that in the

exercise of powers derived from the State Act the

authorities function in some different capacity. The

Commonwealth Act has no provision similar to s.5 of the

National Companies and Securities Commission Act 1979

(Cth) which provides that in the performance of a

function or the exercise of a power under an Act the

Commission represents the Crown in right of the

Commonwealth, but that nothing is to prevent a State

Act providing that, in the performance of a function or

the excercise of a power under a State Act, the

Commission is to represent the Crown in right of the

State...It is unnecessary to consider the effect of

such a provision or like implication from a

Commonwealth Act in this case for we are satisfied that

no like implication can be drawn from the Coal Industry

Act (Cth). Such an implication, it seems to us, could

only be drawn if, either, the Commonwealth Act evinces

an intention that the powers conferred by the State Act

are to be exercised in isolation from the powers

conferred by the Commonwealth Act, or there are

separate Commonwealth and State Tribunals and Local

Coal Authorities, rather than a joint Tribunal and

unified joint authorities." (Emphasis added.)

The Tribunal's reasons for rejecting the Board's claim that it was not bound by the FOI Act

19. The Tribunal, saying that it could "find no foundation for the proposition that the activities of the (Board's) Insurance Division are carried on other than as part of the functions of the (Board)", rejected the argument that the Insurance Division was separate from the Board and thus not an "agency" as defined in s.4(1). The Tribunal rejected an alternative submission, then apparently put on behalf of the Board, but not now pressed, that the Commonwealth Act was beyond power. The Tribunal said, correctly, that the question of constitutional validity of the legislative scheme was settled by Duncan's Case.

The submission put on this appeal on behalf of the Board that it was not bound by the FOI Act

20. In this Court, a rather different argument, one of statutory construction only, was advanced on behalf of the Board as follows: (1) The Board is constituted a body corporate under each of ss.5(6) of the State Act and ss.5(6) of the Commonwealth Act. (2) The documents came into the possession of the Board pursuant to State legislation, i.e. the Workers Compensation Act. (3) The State Act does not expressly or impliedly authorise the single joint body created by co-operation of the two levels of government to be subject to powers or obligations unilaterally imposed by the Commonwealth (see Cram's Case at p 128). (4) The Commonwealth Act also operates on the assumption that the single corporate entity jointly created will have powers and be subject to obligations jointly imposed. (5) A subsequent Commonwealth Act of general appliction will not be construed so as to unilaterally impose obligations on the joint authority. (6) Accordingly where the FOI Act defines "prescribed Authority" to mean "a body corporate...established by...an enactment" it should be construed to mean "a body corporate...established only by an enactment". (7) This construction is reinforced by the objects of the legislation in s.3(1) of the FOI Act. It is only if the body corporate is exclusively created by Commonwealth legislation that it can be said that the information was "in the possession of the Government of the Commonwealth".

Is the Board an "agency" for the purposes of the FOI Act?

21. The Board will be a "prescribed authority", and thus an "agency", for present purposes, if it is "established by, or in accordance with the provisions of, (the Commonwealth Act").

22. It will be recalled that, in Duncan's Case, it was said that the Tribunal was "constituted by the statutes, rather than by the arrangement between the Governor-General and the Governor". (Although the High Court did not there need to consider the position of the Board, there is no reason to suppose that it stood differently from the Tribunal in this respect.) It will also be remembered that this reasoning in Duncan's Case was affirmed in Cram's Case; and that it was also held in Cram's Case that both the Tribunal and Local Coal Authorities "derive their existence from the Commonwealth Act, although not exclusively so"; and, further, that the persons constituting the authorities are necessarily officers of the Commonwealth in respect of the exercise of all their powers.

23. In our opinion, it follows from the reasoning process of the High Court that the Board was established by the Commonwealth Act; and that, if it be necessary to decide the point, the Board was also established in accordance with the provisions of that Act.

24. It is true that the Board was not exclusively so established. But it does not follow that the Board was not established by, or in accordance with the provisions of, the Commonwealth legislation. There is no express statement in the FOI Act to the effect that, in order to qualify as a "prescribed authority", the body concerned must be exclusively established by, or in accordance with the provisions of, the federal statute. The real question for present purposes is whether there is anything in the statutory context to justify an implication that the Commonwealth legislative source must be the exclusive source and the FOI Act read down accordingly.

25. In our opinion, there is no basis, in the context of the FOI Act, or otherwise, for making such an implication. No reason, of logic or of policy, exists to indicate that a joint corporate enterprise deriving its existence from both federal and state legislative sources was intended to fall outside the scope of the FOI Act. On the contrary, the circumstances that the bringing of that single body into existence was a matter of legitimate concern for the Commonwealth and fell within federal legislative power suggest that it would be wrong to read down the statutory definition of "prescribed authority" so as to exclude a body established by, or in accordance with, the provisions of a Federal Act, although not exclusively so (cf. Colonial Sugar Refining Co. Ltd. v. Dilley [1967] HCA 34; (1967) 116 CLR 445; Blue Metal Industries Limited v. Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651).

26. For the sake of completeness, reference should be made to s.6 and Schedule 1 of the FOI Act to which Davies J. drew attention during argument. Section 6 is as follows:

"6. For the purposes of this Act -

(a) each tribunal, authority or body specified in

Schedule 1 is deemed to be a prescribed

authority;

(b) the holder of an office pertaining to a tribunal,

authority or body specified in Schedule 1, being

an office established by the legislation

establishing the tribunal, authority or body so

specified in his capacity as the holder of that

office, is not to be taken to be a prescribed

authority or to be included in a Department; and

(c) a registry or other office of or under the charge

of a tribunal, authority or body specified in

Schedule 1, and the staff of such a registry or

other office when acting in a capacity as members

of that staff, shall be taken as a part of the

tribunal, authority or body so specified as a

prescribed authority,

but this Act does not apply to any request for access

to a document of a tribunal, authority or body so

specified unless the document relates to matters of an

administrative nature." (Emphasis added.)

"SCHEDULE 1

Courts and tribunals exempt in respect of

non-administrative matters

....

Coal Industry Tribunal or any other Tribunal, authority

or body appointed in accordance with Part V of the

Coal Industry Act 1946." (Emphasis added.)

28. Because of their "deeming" character, these provisions must be regarded as equivocal for present purposes. It is difficult to draw an inference, one way or the other, from these provisions as to the legislative intentions on the point now in question. Because a "deeming" provision is often a statutory fiction, it is not open to the Court to infer that the Parliament made an assumption that any of the bodies constituted under the Commonwealth Act would, or would not, fall within the FOI Act.

29. The Board's submission that it was not a "prescribed authority" should be rejected.

The Board's claim before the Tribunal for exemption on grounds of confidentiality - s.45 of the FOI Act

30. The Board claimed that disclosure of the claim forms

would be a breach of confidence. Section 45(1) is as follows:

"45. (1) A document is an exempt document if its

disclosure under this Act would constitute a breach of

confidence."

32. The Tribunal explained the following by way of background:

"The claim form for compensation is completed by the

worker effectively at the pit-head, as I was informed,

and handed to the employer who forwards it to the

insurance divison of the JCB. It remains within the

exclusive control and possession of the Insurance

Division, and no copy thereof comes into the possession

of any other Division. The claim form for compensation

completed by the worker is completed at the time of

injury and its purpose is to document a claim for

compensation by the worker arising during the course of

his employment. Since the coming into force of the

Workers' Compensation Act 1987 (NSW) each worker is

provided with a copy of the claim form, the copy being

created by means of sensitised copying paper."

32. (It may be noted that by s.53(1) of the Workers' Compensation Act, 1926 (N.S.W.) it is provided that proceedings for recovery, under that Act, of compensation for an injury shall not be maintainable unless notice of the injury has been given to the employer as soon as practicable after the happening thereof.)

33. The evidence before the Tribunal as to the nature of the claim for confidentiality was imprecise and expressed in very general terms. The Board relied, in particular, on a statement in the affidavit evidence (or, more accurately, an assertion) of its insurance manager, Mr. K.D. Thorne, given to the Tribunal, that "(a)ll documents which are subject of the application form part of a decision making process and all such documents are supplied in confidence by the employer..."

The Tribunal's decision on the claim for exemption under s.45

34. In rejecting the claim for exemption, the Tribunal said:

"It may well be that as against outsiders, such as the

general public and other persons and companies in the

industry, the documents in question are impressed with

the character of confidentiality. Accepting that this

is so however, it seems to me that there are no grounds

for suggesting that the grant of access to the document

to the person who created it, in his own interest, is

in any way a breach of confidence."

Submissions put on behalf of the Board in this Court in support of the claim for exemption

35. On behalf of the Board, it is now submitted that the ambit of the exemption conferred by s.45 is not limited to situations where an action would lie for breach of confidence: see Corrs Pavey Whiting and Byrne v. Collector of Customs [1987] FCA 266; (1987) 14 FCR 434; Attorney-General v. Cockcroft (1986) 10 FCR 180 at 191-92. It is said that the rationale of s.45 is that "an understanding that information is being supplied in confidence ought to be respected". It is contended that access to the information in the present case has been restricted and was communicated to the Board in circumstances in which it is proper to find a pledge of confidentiality: cf. Baueris v. Commonwealth of Australia (1987) 75 ALR 327 at pp 329-33O. It is further said that nothing here turns on the fact that the respondent is requesting his own claim form: access pursuant to the Act is to anyone who so requests; that the relevant confidence is between the employer and its insurer, the Board; and that there is no relevant relationship between the employee and the Board and the provider of the information has expressly asserted the maintenance of confidence.

Did the Tribunal err in deciding that exemption claimed had not been made out?

36. Two questions arise here: (l) Did the information in the claim forms have the required quality of confidentiality at the time the material was communicated? (See Corrs Pavey Whiting & Byrne v. Collector of Customs (Vic.) [1987] FCA 266; (1987) 14 FCR 434 per Jenkinson J. at p 438.) (2) If so, was the confidentiality intended to be absolute or limited only? That is to say, would there be a breach of the confidentiality if the information were now to be disclosed by the Board to the respondent, being the person who supplied the very information in question?

37. In our view, no error of law was made by the Tribunal in rejecting the claim for exemption.

38. The question is essentially one of fact. Whether, and if so, to what extent, the information in question was provided under an express or implied pledge of confidentiality, and if so, the scope or extent of that confidentiality, will depend upon an analysis of all the relevant circumstances (see Department of Health v. Jephcott [1985] FCA 370; (1985) 62 ALR 421 at p 425). It is impossible to imagine that the respondent intended to exclude himself from later access to the material. It is difficult to conceive that Clutha, the employer, would wish to do so. It is, in essence, a question of fact whether, in the circumstances, it was the intention of the parties at the time of the communication of the information that the recipient should be at liberty, consistently with the confidence reposed, to divulge the information to a limited class of persons (see Attorney-General's Department and Australian Iron and Steel Pty. Ltd. v. Cockcroft (1986) 10 FCR 180 at pp 191-2). That is, it is well established that the fact that it is contemplated that disclosure will be made to a restricted class of persons will not destroy the confidential character of the material for other purposes and vis-a-vis other persons.

39. The Tribunal concluded that even if some degree of confidentiality in the material were contemplated at the time the respondent handed over the claim forms, it should be inferred, or implied, from all the circumstances of the case that there would be no breach of any confidentiality if the information were later to be disclosed to the respondent. In our opinion, such a conclusion was not only open to the Tribunal, it was also clearly correct.