Smeaton v Victorian WorkCover Authority (General) [2009] VCAT 1195

1. The preliminary question "whether the Tribunal has jurisdiction to review the decision of the respondent to transfer the applicant's request for access to documents to the Ombudsman pursuant to s 18 of the Freedom of Information Act 1982" is answered "no".

The Human Rights Law Resource Centre made written submissions on Mr Smeaton's behalf.

1. Anthony Smeaton sought access under the Freedom of Information Act 1982 from the Victorian WorkCover Authority to a report prepared in 2006 by the Victorian Ombudsman. The Authority transferred the request to the Ombudsman under s 18(2) of the Freedom of Information Act, whereupon it was refused because, under s 29A of the Ombudsman Act 1973, the Freedom of Information Act does not apply to documents of that kind in the possession of the Ombudsman.
2. Mr Smeaton now seeks review of the Authority's decision to transfer his request to the Ombudsman. He submitted the decision was reviewable in itself or as a deemed refusal of his request. The premise of his submission was that the Authority's power to transfer requests was not available in this case.
3. The Authority challenges the competence of Mr Smeaton's application for review. It submits the application falls outside the statutory jurisdiction of the tribunal. That question has been set down for determination as a preliminary issue.
4. Mr Smeaton was a self-represented party. It was my duty to ensure he received a fair hearing by giving him due assistance. That duty arose as an incident of the tribunal's statutory duty to act fairly,[1] of its common law duty to provide due assistance to self-represented parties[2] (which applies to the tribunal) and of its obligation under ss 24(1) and 38(1) of the Charter of Human Rights and Responsibilities Act 2006 to act compatibly with Mr Smeaton's human right to a fair hearing in a civil proceeding, which directly applies to the tribunal not just, as in this case, it is exercising administrative jurisdiction in the public law sense,[3] but when it is exercising all of its jurisdictions.[4]
5. To ensure Mr Smeaton was given a fair hearing, I made an opening statement explaining the procedure I would follow and the main issues in the case, in terms appropriate to the nature of the case and his level of understanding. In that opening and when required during the course of the hearing, I brought to his attention the relevant factual and legal issues and, in an appropriate manner, assisted him to articulate his response. During the hearing, I directed him away from irrelevant submissions and towards relevant submissions, and explained the difference. Where appropriate, I asked questions of him so that he could fill in some gaps, or elaborate on, the factual circumstances of his case. Finally, I referred him to pro bono lawyers so he could obtain assistance in relation to some important legal issues. As the tribunal can expect, counsel for the Authority co-operated with the steps I took to ensure Mr Smeaton got a fair trial, consistently with the government's model litigant policy but not inconsistently with their duty to their client.
6. Turning to the preliminary question, the jurisdiction of the tribunal to review decisions made under the Freedom of Information Act is relevantly set out in s 50(2) of that Act, which is an enabling enactment for the purposes of ss 40(b) and 42(1) of the Victorian Civil and Administrative Tribunal Act 1998. The provisions of s 50(2) list a number of decisions in respect of which an applicant may apply to the tribunal for review. They include "a decision refusing to grant access to a document in accordance with a request" (paragraph (a)) and "a decision deferring the provision of access to a document" (paragraph (b)). A decision to transfer a request to another agency under s 18(2) is not included in the list.
7. The Victorian Civil and Administrative Tribunal is a body of statutory jurisdiction (express or implied). It does not have inherent jurisdiction in this case or in any other. If the decision of the Authority to transfer Mr Smeaton's request to the Ombudsman is valid, it is not a decision reviewable by the tribunal. Such a decision is not included in the list of reviewable decisions in s 50(2).
8. However, the tribunal possesses jurisdiction to determine all questions of fact, law and merit relevant to an application for review. If it appears an agency has purported to exercise the power of transfer in s 18(2) when it is not properly available, the tribunal possesses the jurisdiction to consider and determine that issue. If it determines the transfer to be invalid, it could then proceed with the application for review on the basis (for example) that the agency has not decided the request within the 45 day time period specified in s 21. That follows from what Gray J decided in Bienstein v Attorney-General.[5] His Honour held the federal tribunal had the jurisdiction (and therefore the responsibility) to decide whether the equivalent provisions of the federal legislation authorised the transfer decision made in that case.[6] To that question in this case I now turn.
9. Under s 18(2)(b)(ii) of the Freedom of Information Act, a request for access to a document made to an agency may be transferred to another agency. It will then be the responsibility of that other agency to process the request. The agency to which the request was made can transfer it if (relevantly) "the subject-matter of the document is more closely connected with the functions" of the other agency.
10. The proper application of s 18(2)(b)(ii) requires consideration of the subject-matter of the document, the functions of the agencies and the relative closeness of the connection of that subject-matter with those functions. The subject-matter of the document is to be ascertained from its contents viewed in its whole context. The functions of an agency are to be ascertained from its legislative or other constitutive source. The question is, under the legislation (for example), what is the purpose and role of the agency? The relative closeness of the connection is a matter for judgment, but two points should be noted. First, it is the connection with the functions of the agency that is relevant. Functions and activities are not necessarily the same thing. Second, for a transfer to be authorised, the document must be more connected, not just connected, with the functions of the other agency.
11. While s 18(2)(b)(ii) authorises transfer of a request, transfer is not mandatory. The agency "may" decide to transfer, which means, in the words of s 45(1) of the Interpretation of Legislation Act 1984, that the "power ... may be exercised, or not, at discretion". The fact that the document is made inaccessible under the Freedom of Information Act by the home legislation of the other agency is a relevant discretionary consideration, especially where the document is (in such a case) more closely connected with its functions than with the agency to which the request was made.
12. In the present case, the document arose out of the Ombudsman's investigation into complaints made by Mr Smeaton's wife about the Authority's handling of her claim for compensation and medical payments. Mrs Sue Smeaton had been injured at work in 1992 and 2003. Her complaints related to numerous aspects of the Authority's administration of her claims. The report was produced by the Authority following its investigation and consideration of those complaints. In terms of subject-matter, it records the Ombudsman's factual findings, conclusions and recommendations about Mrs Smeaton's complaints.
13. Under s 13(1) of the Ombudsman Act, the principle function of the Ombudsman is to enquire into and investigate administrative actions of government departments and public statutory bodies. The legislation gives the Ombudsman wide powers of inquiry (Part IIIA) and investigation (Part IV) in relation to complaints. It requires the Ombudsman to adopt certain procedures on the completion of its investigation, including reporting his or her opinions, reasons and any recommendations to the principal officer of the appropriate authority (s 23(2)). The report concerning Mrs Smeaton's complaints was prepared in that context. It was thus prepared in direct connection with the Ombudsman's principle functions.
14. Under s 20(1)(a)-(b) of the Accident Compensation Act 1985, the functions of the Authority relevantly are to administer claims for payments of compensation and medical expenses in respect of people injured at work. The contents of the report have a connection with these functions, for Mrs Smeaton's complaints concerned the Authority's administrative actions in this regard.
15. On the one hand, there is the principal investigative function of the Ombudsman, which he discharged by investigating and reporting on the administrative activities of the Authority. On the other, there is the function of the Authority to administer claims for compensation and medical expenses, which the Authority discharged by carrying out those activities. There is a very close connection between the Ombudsman's functions and the subject-matter of the report. The connection between the Authority's functions and that subject-matter is less close. The report was produced pursuant to the investigative functions of the Ombudsman, not the administrative functions of the Authority.
16. Therefore, in my view, the Authority correctly concluded Mr Smeaton's request for access to the report could be transferred to the Ombudsman under s 18(2)(b)(ii) of the Freedom of Information Act. That is not, however, the end of the matter.
17. Of course the Freedom of Information Act has very important purposes in the public interest. The objects of the legislation are set out in s 3(1). The provisions of the legislation are to be interpreted, and its discretions exercised, with those objects firmly in mind (s 3(2)). The right to seek, receive and impart information is an aspect of the human right of freedom of expression which is recognised in s 15 of the Charter of Human Rights and Responsibilities Act 2006, reflecting article 19 of the International Covenant on Civil and Political Rights.[7] The provisions of the Freedom of Information Act should be interpreted consistently with this human right, to the extent required by the standard principles of interpretation and the special interpretative obligation in s 32(1) of the Charter, as I explained them in Kracke v Mental Health Review Board.[8]
18. Mr Smeaton submitted the purposes of the Freedom of Information Act have been undermined in this case. The Authority has transferred his request to the Ombudsman where it was doomed to fail. In various ways he submitted the provisions of s 18(2) should be interpreted restrictively to preclude the Authority from transferring his request.
19. I must reject those submissions. In a case to which it applies, s 18(2) authorises the agency to which the request was made to transfer the request to another agency even where the fate of the request would thereby be sealed. Nothing in the purposes of the legislation or the standard principles of interpretation require the clear words of s 18(2) to be interpreted otherwise. It is true that, since the power in 18(2) is discretionary, relevant considerations must be taken into account. Also, under s 38(1) of the Charter, the discretion must be exercised compatibly with the Charter and the human rights it recognises must be given proper consideration. This does not mean the power of transfer in s 18(2) is not available where the other agency would be bound to refuse the request.
20. In careful submissions on behalf of Mr Smeaton, the Human Rights Law Resource Centre submitted that s 32(1) of the Charter required the provisions of the Freedom of Information Act to be interpreted in the light of the human right to freedom of expression in s 15 of the Charter. That right includes the right to seek, receive and impart information of all kinds. Contrary to s 38(1) of the Charter, the Authority did not act compatibly with and failed to give consideration to this human right. Therefore the transfer decision was invalid. Further, any restriction of Mr Smeaton's right to obtain access to the report had to be demonstrably justified under s 7(2) of the Charter, which the Authority had not established.
21. As I held in Kracke,[9] "by reason of the combined operation of ss 4(1)(b) and (j) and 4(2) [of the Charter], courts and tribunals acting in an administrative capacity in the public law sense are public authorities and fully bound in that capacity to comply with the Charter". When exercising its review jurisdiction, the tribunal acts in an administrative capacity in this sense and is therefore fully bound by the Charter.[10] The tribunal's jurisdiction in this freedom of information case is its review jurisdiction under s 50(2) of the Freedom of Information Act and ss 40(b) and 42(1) of the Victorian Civil and Administrative Tribunal Act. When exercising that jurisdiction, the tribunal is acting in an administrative capacity in the public law sense and is therefore bound by s 38(1) of the Charter to act compatibly with and give proper consideration to human rights, subject to s 38(2).
22. The submissions made by the Human Rights Law Resource Centre raise issues concerning the interpretation of ss 18 and 52 of the Freedom of Information Act, taking into account ss 32(1) and 38(1) of the Charter. To address those issues, I would adopt the approach I set out in Kracke. That requires a consideration of the issues of engagement, justification and reinterpretation.[11]
23. As to engagement, the submissions rely on the right to freedom of expression in s 15(1) of the Charter, and specifically the right to seek and receive information and ideas of all kinds in s 15(2). It was not in this case submitted that the right to freedom expression, in its general or in those specific respects, involves an obligation on the part of the government to impart information requested, and I will consider the submissions on that basis.
24. I do not think Mr Smeaton's right to freedom of expression is engaged in this case. Nothing in the Freedom of Information Act or its administration limits his right to hold or express opinions or to seek, receive or impart information. Mr Smeaton is free, subject to law, to express whatever opinions he likes about the Authority and the Ombudsman in connection with his wife's case. He can seek whatever information he wishes and receive whatever information he may be given. There is no restriction imposed on Mr Smeaton's capacity to receive information which others may wish to give him.
25. The Freedom of Information Act creates a right to obtain access to information from government agencies (s 13), subject to specified exemptions and, among other things, the power of transfer in s 18. Section 29A of the Ombudsman Act operates to exclude information relating to complaints to the Ombudsman and other matters in the possession of the Ombudsman from the application of the Freedom of Information Act. These provisions of the Freedom of Information Act and the Ombudsman Act do not limit Mr Smeaton's human rights as specified. Moreover, while the provisions do regulate the government's capacity to provide information requested under the Freedom of Information Act, they do not limit the government's capacity to provide information independently of the scheme created by that legislation.
26. As Mr Smeaton's human right to freedom of expression is not engaged, no question of justification or reinterpretation of the provisions of the Freedom of Information Act arises.
27. Subsequent to the hearing, the Ombudsman refused a separate request made by Mr Smeaton under the Freedom of Information Act for access to the report. Its decision in this regard was later upheld by the tribunal. The Authority submits the present proceeding is therefore futile. I reject that submission. If Mr Smeaton is correct, the Authority should have determined his request for access to the report independently of the later Ombudsman's decision. His review rights are not restricted by the tribunal's decision to uphold the decision of the Ombudsman in this regard.
28. The preliminary question is "whether the Tribunal has jurisdiction to review the decision of the respondent to transfer the applicant's request for access to documents to the Ombudsman pursuant to s 18 of the Freedom of Information Act 1982". That question is answered in the negative. The question was stated in proceedings No G745/2007 and No G167/2008. I was told the question need only be answered in the latter proceeding because the result would naturally be followed in the former. I will therefore make orders only in proceeding No G167/2008. The application for review in that proceeding will be dismissed.

[1] Victorian Civil and Administrative Tribunal Act 1998, s 97. The scope of this provision would be

interpreted consistently with the right to a fair hearing in s 24(1) of the Charter of Human Rights and

Responsibilities Act 2006 by reason of the special interpretative obligation in s 32(1) of that Act - an

example of its horizontal application: see Kracke v Mental Health Review Board [2009] VCAT 646,

[2] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, [127]-[130], [139], cited with approval Macdiggers Pty Ltd v Dickinson [2008] VSC 576, [55] - [63] per Warren CJ.

[3] Kracke v Mental Health Review Board [2009] VCAT 646, [252], [332], [489].

[5] [2007] FCA 1174; (2007) 162 FCR 405.

[7] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[8] [2009] VCAT 646, [37] ff.

[9] [2009] VCAT 646.