Robertson v Deputy Secretary, Local Government, Planning and Policy

Issue to be determined

1. The question to be determined in the appeal is whether the documents sought relate to the complaint handling and investigation process. The appellant contends that the conclusion of the Tribunal at [33]-[34] was contrary to the legislative regime when properly interpreted. We have rehearsed those two paragraphs: As submitted by the Respondent, because the preparation of a departmental report is a precursor to disciplinary action pursuant to either ss 440H(5) or 440H(5A) of the LGA, it would clearly 'relate to' the investigative functions of the Respondent, because such a report would be prepared 'in relation to an investigation' under s 440H of the LGA. Even where a report is prepared about a councillor without an investigation being carried out, pursuant to s 440H(5A)(c) of the LGA, that report would 'relate to' the complaint handling functions of the Respondent, because it would be the prerequisite to a decision to take disciplinary action against a councillor, which is a means by which a complaint of misconduct might be handled pursuant to s 440H(6) of the LGA. The second category of documents sought by the access application - 'a copy of any other briefing notes, recommendations or instructions relied upon… when determining whether to make any direction to [Clr Funnell]' clearly forms part of the Respondent's investigative processes because it is relied upon by a decision-maker of the Respondent in the course of an investigation. Similarly, the third category of documents sought by the access application - 'a copy of any other documents relied upon… indicating any prior offending or post event conduct and previous incidents of misconduct' would also 'relate to' the investigative functions of the Respondent.

The appellant's submissions

1. The appellant concedes that the complaint handling and investigation process processes are excluded from scrutiny. However, resulting reports and decision-making processes are not, unless they relate to the investigation process. The error made by the Tribunal was to not take into account the context of the phrase "relates" in Schedule 4 of the GIPA Act defining "excluded information" when determining its meaning.
2. The appellant refers to ss 429A, 440H and 440I of the LGA and submits that interpretation is made clear following an analysis of the statutory regime dealing with investigations and general principles as to statutory construction and the meaning of words. He contends: The principles as to statutory construction are clear. As held in The Queen v A2; (2019) 269 CLR 507, [20191 HCA 35 at [32] - (331: The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. 30. Legislation is to be construed according to its text, context and purpose?
3. The appellant submits that the word "investigation" should bear its ordinary or natural meaning "the act or process of searching or inquiring in order to ascertain facts" Health Insurance Commission v Freeman (1998) 88 FCR 55 at 552. It should not extend to information related to completed investigations.
4. The context is said to encompass three distinct processes dealing with misconduct. The complaint handling process, the investigation process and the reporting and potentially a disciplinary process. The appellant highlights the difference between the processes in Schedule 2 of the GIPA Act, which parliament has included a reference to review and reporting, which are sperate from the complaint handling and investigation process.
5. The purpose, is that set out n s 3 of the GIPA Act. The appellant contends that the Tribunal did not take into account the purpose of the GIPA Act into account when determining the meaning of "relates to".
6. The appellant submits that the Tribunal's apparent influence by the decision in Beregi v Department of Planning and Industry and Environment [2020] NSWCATAP 185 at [27] in [39] and [40] of the decision under review, leads to error. Paragraphs [39] and [40] include: At [71] - [77] the Beregi Appeal considered the Tribunal's findings in Beregi at [27] and held that that the broad approach adopted by the Tribunal was supported by the evidence in that case, and that the inclusion of "relates to" as it is used in the definition of "excluded information" in Sch 2 of the GIPA Act has a broad meaning, and there was no error in the Tribunal's conclusion on this point: 71 The Tribunal concluded at [27] that the complaint handling and investigative functions of the OLG encompass "matters from the receipt of a complaint up to and including its resolution", from the broad complaint handling powers in s 430 of the LG Act through to more serious functions concerning suspension and a performance improvement order, to the very serious undertaking of a public inquiry. 72 The broad approach adopted by the Tribunal to the range of functions provided for in Chapter 13 of the LG Act as informing the "complaint handling and investigative functions" of the OLG is consistent with Ms Brown's evidence as to the OLG's role in performance management. In oral evidence Ms Brown explained that complaints give the OLG an indicator that something is not going right at the council, and the OLG then has an obligation to examine that information and to monitor and see how that council is going (T 191). Ms Brown's evidence was that the underlying information, being complaints, investigations and monitoring, was used to inform the Minister about whether the criteria for the issue of a performance management order were met (T 192). The OLG could manage complaints, but to get an effective outcome a range of mechanisms to try and assist the council to improve its performance was needed; by the time of the public inquiry nothing had been effective and the complaints could not have been dealt with even with the performance improvement order (T 193). The OLG had a dual role in the public inquiry, in providing a submission and giving evidence, and in providing documents to the Commissioner at his request (T 198). In cross examination Ms Brown described the OLG's role in the public inquiry as being a "supporting agency" (T 200); and further described the OLG as doing all the preliminary inquiries, investigations and intervention work, and using the information gained to inform the advice provided as to the most appropriate intervention by the DCE or the Minister (T 211). 73 Ms Beregi takes issue with the Tribunal's reference in [27] to the "undertaking of a public inquiry", which she submits is not a function conferred on the OLG. That is because, as Ms Beregi submits, the Governor or the Minister appoints a Commissioner to hold a public inquiry under s 438U of the LG Act. The question is whether this determines whether the information held by the OLG relating to the period leading up to the calling of the inquiry into the Council, through the conduct of the inquiry and the preparation of a report until that report was tabled in Parliament, is information that "relates to" the "complaint handling and investigative functions conferred by or under any Act on that Department". 74 The Tribunal relied on the authorities adopting a broad approach to the term "relates to", concluding at [21] that the question is the extent to which the information in issue has a connection with the specified function. The authorities referred to, in particular Miller v Director of Public Prosecutions [2012] NSWADT 38 and more recently Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, support that approach. In Miller the Tribunal adopted a broad approach both to the functions, in that case being the "prosecuting functions" of the DPP, and the expression "relating to", applying the reasoning in the Federal Court decision in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111, at [28] that the words "relating to" "are of the widest import". In Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, concerning information relating to complaint handling by the NSW Trustee and Guardian, the Tribunal concluded at [15] based on those authorities, that the issue is the extent to which the information in issue has a connection with the specified agency. 75 The term "relates to" was considered by the New South Wales Court of Appeal in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390. Campbell JA reviewed the relevant authorities at [44] and following. His Honour referred (at [45]) to Taylor J's judgment in Tooheys Ltd v Cmr of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620, where his Honour said: the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. 76 His Honour also referred (at [46]) to the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285, where their Honours referred to Taylor J's judgment in Tooheys then continued: Other decisions of the High Court have acknowledged that, ordinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice... 77 We consider that the term "relates to," as it is used in the definition of "excluded information" in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to "open government information to the public by ... providing that access to government information is restricted only when there is an overriding public interest against disclosure" (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2). I agree with the Appeal Panel's reasoning and findings in relation to the scope of 'relates to' as it is used in the definition of 'excluded information in Sch 2 and Sch 4 of the GIPA Act, and agree with the Respondent that the Appeal Panel's reasoning in these paragraphs clearly forms part of the ratio of its decision, and is therefore not obiter dictum.

The respondents submissions

1. The respondent contends that the Tribunal's decision at first instance is correct for the reasons given by the Senior Member, and the appeal should be dismissed.
2. The respondent agrees with the statement of principles set out by the appellant concerning statutory construction. However, the respondent takes issue with the application of those principles to the LGA.
3. The respondent disputes the characterisation by the appellant that the word "investigation" does not extend to completed investigations. He contends that the question of whether information "relates to" an investigative function is not addressed. The relevant question is what the purpose or character of the information was at the time the information was first created or obtained by the respondent (Beregi at [44]).
4. The conclusion of an investigation does not cause information that "relates to" that investigation to lose that relationship. The respondent submits that if that was parliament's intent, it would have used words "relating to an ongoing complaint handling or investigative process" in Sch 2 to the GIPA Act.
5. The respondent contends that the Tribunal in a number of decisions has held that information that relates to a concluded function of an agency in Sch 2 of the GIPA Act is still excluded information (Coppock v Willoughby City Council [2021] NSWCATAD 166; Beregi; Yee v Medical Council of NSW [2017] NSWCATAD 370; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130). The Tribunal correctly interpreted the words "relates to" and in doing so its findings are consistent with all of these decisions.
6. In respect of the appellant's submission that there is a distinction between "review" and "reporting" functions and "complaint handling" and investigative" functions, the respondent contends that the distinction is drawn by reference to agencies other than the respondent who are listed in sch 2 to the GIPA Act. In doing so, each of those other agencies have a unique and separate statutory regime. It would be an error to rely on those functions to interpret the statutory functions of the respondent.
7. The respondent submits the appellant's contention that the LGA gives rise to three distinct sequential processes - complaint handling, investigation and then reporting and disciplinary is not borne out by a proper analysis of the LGA. In particular, s 440H of the LGA permits the Departmental Chief Executive to take disciplinary action on the basis of a departmental report without an investigation: s440H(5A). The submission is also inconsistent with Beregi [71]-[78] and Coppock [69].
8. The respondent contends that the Tribunal did not err in failing to take into account the purposes of the GIPA Act in interpreting the meaning of "relates to". This is because s 14(1) provides there is a conclusive presumption that there is an overriding public interest against disclosure of government information in Sch 1 of the GIPA Act. Restricting government information that relates to the complaint handling and investigative functions of the respondent is in keeping with the GIPA Act, particularly with the s 3 principles.
9. The respondent contends that the decision in Bergi and Coppock ought to be followed as a matter of comity.

The Information Commissioner's submissions

1. The meaning of "excluded information"
2. The extent that an application is made for access to excluded information, it is not a valid access application: s. 43(2).
3. The terms, "complaint handling" and "investigative function" in Sch 2 are not defined in the GIPA Act. Nevertheless, the Tribunal has applied the ordinary meaning of these words and has adopted a broad reading of the terms (Bergi at [42]). The Appeal Panel in DM Ombudsman [2019] NSWCATAP 77 (at [52]) commented that the legislature has described the "complaint handling, investigative and reporting" functions in Sch 2 in general terms, the requirement for the agency when deciding whether information is excluded information is to determine whether the information "relates to" a function specified in Sch 2: see, Watson v NSW Trustee and Guardian (2015] NSWCATAD 139 (Watson) at [11].
4. Whilst the terms, "complaint handling" and "investigative function" in Sch 2 are not defined in the GIPA Act, the exclusion relating to the Office of Local Government refers to "any Act".
5. The Information Commissioner submits that the case law has interpreted the term "relates to" widely and a broad connection between the information and the complaint handling or investigation function is sufficient: referring to, Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]; Sinclair v Psychology Council [2017] NSWCATAD 8 at [71]; Coppock v Willoughby City Council [2021] NSWCATAD 166 (Coppock) at [78]; Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81 at [41]. In each case, the question is the extent to which the information in issue has a connection with the specified function in cl 2 of Sch 2: referring to, Watson at [16].
6. However, she contends that the Tribunal should consider the various functions conferred upon the Office of Local Government prior to determining whether the information sought relates to a prescribed statutory complaint handling or investigative function. In this regard, the LGA does include specific reporting and review functions.
7. In examining the exercise of complaint handling and investigative functions, the Information Commissioner submits that the Tribunal may also have regard to the requirement for certain functions to be exercised under delegation under the LGA as a means of identifying the statutory functions of the Respondent prior to considering if the information relates to its excluded statutory functions in Sch 2 (referring to Beregi at [54]-[56]; Coppock at [204]-[205]).
8. In examining the exercise of complaint handling and investigative functions, the Tribunal may also have regard to the requirement for certain functions to be exercised under delegation under the LG Act as a means of identifying the statutory functions of the Respondent prior to considering if the information relates to its excluded statutory functions in Sch 2: see, Beregi at [54]-[56]; Coppock at [204]-[205].

Our Consideration

1. The GIPA Act establishes a presumption in favour of disclosure of government information. That is, unless there is an overriding public interest against disclosure - s 3 of the GIPA Act. The GIPA Act identifies three separate ways in which an application may be determined not to be valid. Relevantly, s43(1) provides that an access application cannot be made to an agency for access to excluded information of the agency. The operation of s 43(2), means an application for government information is not a valid application to the extent the application is made in contravention of s 43.

What is excluded information?

1. Schedule 4 of the GIPA Act in turn defines 'excluded information' to mean "excluded information" of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency. If an agency specified in Sch 2 received an application and determines that the application is seeking "excluded information" of the agency, then the application is invalid, at least to the extent to which it seeks information that meets that definition. This is not in dispute in the appeal.
2. Relevantly, clause 2 of Sch 2 identifies the respondent and its respective functions "The Office of Local Government (including the Chief Executive and other Departmental representatives)--complaint handling and investigative functions conferred by or under any Act on that Department."
3. Sch 4 to the GIPA Act defines "Function" to include " a power or authority, or duty"; and "exercise" a function includes "perform a duty", linking the power or duty to the activity of an agency in performance of these functions.
4. It is important in our view to first determine the functions granted to the respondent before determining whether the information sought "relates to" a prescribed statutory complaints handling process.

Functions granted to the respondent

1. As set out above, the terms "complaints handing" and "investigative functions" in Sch 2 are not defined in the GIPA Act. Div 1. Pt 5 of Ch 13 of the LGA provides for specific procedures and functions as does Div 1. Pt 3 of Ch 14, dealing with the making of, and investigation of complaints. These provisions provide the basis for the Tribunal's examination of the exercise of functions related to the statutory functions excluded under Sch 2 of the GIPA Act.
2. As set out above, the real issue to be determined in the appeal is whether the documents sought by the appellant relate to the complaint handling and investigation process.

Do the documents sought relate to the complaint handling and investigation process?

1. The appellant contends that resulting reports and decision-making processes do not relate to the investigation process. The word "investigation" does not extend to completed investigation because that does not involve any searching or enquiring in order to ascertain facts. This is because the facts have already been determined.
2. The Appeal Panel is of the view that there was no error in the Tribunal's approach to the question of whether a completed investigation relates to complaint handling and investigation functions, for the following reasons.
3. We agree with the respondent that the correct test is what is the purpose or character of the information at the time the information was first created or obtained by the respondent Beregi at [44]; [100].
4. The Tribunal at [33] - [34], in our view correctly found that "the preparation of a departmental report is a precursor to disciplinary action pursuant to either ss 440H(5) or 440H(5A) of the LGA, it would clearly 'relate to' the investigative functions of the Respondent, because such a report would be prepared 'in relation to an investigation' under s 440H of the LGA. …". There is no error in the Senior Members reasoning. This is because the information relates to a concluded function of the respondent in Sch 2 of the GIPA Act which is still excluded information. We do not accept the appellant's contention that a concluded report cannot relate to an investigation or complaint handling function. The concluded report and any of the other categories of information sought in the application are in our view at the heart of the complaint handling and investigation process, not at the periphery. Such a report and the material considered will contain the results of the investigation. Where the investigation is concluded, this does not prevent a final report from relating to that process.
5. We agree with the submissions of the respondent that the decision under review is consistent with the Tribunal's previous determinations in Beregi, Yee, Pertsinidis and Coppock. While the Appeal Panel and the Tribunal is not bound by those decisions, we accept that the findings are applicable to this appeal as a matter of comity.
6. We reject the appellant's submission that the there are three distinct sequential processes found in the LGA - complaint handling, investigation and then reporting and disciplinary. The submission ignores the operation of s440H of the LGA which allows for the Departmental Chief Executive to, in certain circumstances take disciplinary action without conducting an investigation - s440H(5A). A complaint handling function can encompass matters from notification and receipt of a complaint up to and including its resolution. The agency can decide whether to take action, or no action including disciplinary action - see ss 440I and 400J of the LGA. All of which, in our view relate to one continuous complaint handling and investigation process, not three separate processes.
7. The appellant submits that the Tribunal erred in failing to take into account the purpose of the GIPA Act in determining the meaning of 'relates to'. We do not agree. This is because consideration of restricting access to government information that 'relates to' a complaint handling and investigation function is in keeping with the purpose of the GIPA Act and the conclusive presumption of an overriding public interest disclosure of government information in Sch 1 of the GIPA Act (s14(1) of the GIPA Act).
8. For these reasons the appeal fails and is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2023