Walker v SafeWork NSW

[2022] NSWCATAD 94

NCAT Administrative and Equal Opportunity|2021-10-14

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NCAT Administrative and Equal Opportunity

Decision date

2021-10-14

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Judgment (18 paragraphs)

[1]

REASONS FOR DECISION

On 5 March 2021 Philip Walker made an application to SafeWork NSW (SafeWork) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to all information relating to silica dust emission in 2019, 2020 and 2021 from construction of the Mona Vale Road East Upgrade by Georgiou Constructions. The reference in Mr Walker's access application to Georgiou Constructions is a reference to Georgiou Group Pty Ltd (Georgiou).
On 20 April 2021 SafeWork made a decision to release some information to Mr Walker, to partially release other information with personal information redacted and to refuse access to responses from Georgiou to a Notice issued by SafeWork to Georgiou under s 171 of the Work Health and Safety Act 2011 (the WHS Act) (Notice No. 7-378163).
It seems that the 20 April 2021 decision was not received by Mr Walker and he sought administrative review by the Tribunal on the grounds that SafeWork had failed to decide the access application within the required timeframe. This became apparent when the matter came before the Tribunal and he was then provided with a copy of the decision. Mr Walker later clarified that he is seeking review of that part of the decision which refused access to the responses from Georgiou to Notice No. 7-378163.
In the course of these proceedings SafeWork identified further information which fell within the terms of Mr Walker's access request. This information compromised documents that were provided to SafeWork by Georgiou in response to another Notice issued to Georgiou under s 171 of the WHS Act (Notice No. 7-375264). SafeWork made a supplementary decision on 31 August 2021 and also refused access to this information, essentially for the same reasons that access had been refused to the responses to Notice No. 7-378163. These reasons primarily relate to the confidentiality of the information provided to SafeWork by Georgiou and the ability of SafeWork to perform its functions.
The matter before the Tribunal encompasses the refusal to provide Mr Walker with access to the responses by Georgiou to Notice No. 7-375264 and Notice No. 7-378163. The decisions by SafeWork (the original decision and the supplementary decision) to refuse to provide access to some of the information sought by Mr Walker are decisions which are reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

[6]

Public interest considerations against disclosure

As set out above, SafeWork has identified three public interest considerations against disclosure as set out in the Table to s 14 of the GIPA Act. These concern the confidentiality of information, the effective exercise of SafeWork's functions and contravention of a secrecy provision in an Act. The legislative provision that SafeWork alleges would be contravened is s 271 of the WHS Act.
Each of the considerations against disclosure set out in the Table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
Several of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner (s 105).

[7]

Relevant provisions of the WHS Act

Before turning to a consideration of each of the considerations against disclosure relied upon by SafeWork, it is worth setting out the statutory provisions which are applicable to the information sought to be withheld from Mr Walker and which had been provided to SafeWork by Georgiou.
Notice No. 7-375264 and Notice No. 7-378163 were issued to Georgiou under s 171 of the WHS Act. That section empowers an inspector in certain circumstances to require the production of documents. The Notices were issued on 8 May 2020 and 1 July 2020 respectively and documents in response to the Notices were provided to SafeWork by Georgiou on 11 May 2020 and 7 July 2020. It is an offence for a person, without reasonable excuse, to refuse or fail to comply with a Notice issued under s 171.
Section 271 of the WHS Act provides: 271 Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7). (2) The person must not do any of the following - (a) disclose to anyone else - (i) the information, or (ii) the contents of or information contained in the document, (b) give access to the document to anyone else, (c) use the information or document for any purpose. Maximum penalty - (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document - (a) about a person, with the person's consent, or (b) that is necessary for the exercise of a power or function under this Act, or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use - (i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or (iv) is necessary for the recognition of authorisations under a corresponding WHS law, or (v) is required for the exercise of a power or function under a corresponding WHS law, or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or (e) that is required or authorised under a law, or (f) to a Minister. …

[11]

Confidential information

For information to come within clause 1(d), it must have been obtained in confidence. In Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it".
There is no doubt that the information was provided to SafeWork by Georgiou in response to Notices issued under s 171 of the WHS Act. This is confirmed by Ryan McKeown, Inspector in his Statement dated 26 August 2021. There is also no question that the information was obtained by SafeWork in the exercise of its functions under the WHS Act. Sub-section 271 of that Act provides that a person who exercises functions under the WHS Act must not disclose, use or provide anyone else with access to the information. Significant penalties apply for contravention of that provision.
As noted above, Ms Stewart has stated that Georgiou has not consented to the release of the information provided by it in response to the Notices. Ms Stewart expressed the view that a key public interest consideration in GIPA applications dealt with by her unit is to protect the identity of people who make disclosures to SafeWork as the work health and safety regulator. She also stated that a further key public interest consideration is to protect information provided to SafeWork under compulsion.
I am satisfied on the basis of the evidence provided by SafeWork that the withheld information was given and received in confidence. I am also satisfied that SafeWork's legislative obligation and practice in dealing with information produced in response to a Notice issued under the WHS Act is to treat such information as confidential. I am therefore satisfied that the information in issue is confidential information for the purposes of clause 1(d).

[12]

Prejudice the future supply of information

In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said with respect to the requirement that disclosure could reasonably be expected to prejudice the future supply of information to an agency: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information."
In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
The information to which access is sought was provided to SafeWork by Georgiou in response to the two Notices that required the production of, among other things, air, health and dust monitoring reports in relation to the works being carried out. Ms Stewart stated that, in her view, if information of this kind is not protected from disclosure it could prejudice the future supply of information to SafeWork in the course of discharging its investigative functions under the WHS Act.
A similar issue to that in the present case was addressed in Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 where information had been provided to SafeWork by Blacktown City Council in response to a Notice issued under s 155 of the WHS. In that case the Tribunal found that it was likely that, if the information provided by Blacktown City Council was disclosed, the ability of SafeWork to obtain similar information in the future could be impaired (at [29]).
As was noted in Fraser, the Tribunal has, in a number of cases, accepted that disclosure of material arising from an agency's investigative processes could prejudice the supply of future information essential for those processes to function. In this matter, the information provided by Georgiou was provided in circumstances where it was expected, taking into account the legislative prohibition against disclosure and SafeWork's practices, that it would not be further disclosed. Indeed, Georgiou has objected to the disclosure of the information to Mr Walker.
In its investigation of possible contraventions of the WHS Act, SafeWork relies upon companies and others to provide full disclosure of information sought by it. It is likely that the recipient of a Notice issued under the WHS Act would be less frank and less comprehensive in its response if it were aware that the information it provided was likely to be disclosed to the public. The fact that the information is provided under compulsion and the recipient of a Notice is therefore obliged to provide information, does not detract from the fact that the recipient may be more guarded in its response if it was aware that the information was likely to be disclosed.
I am satisfied that disclosure of the information provided by Georgiou in response to the two Notices could reasonably be expected to prejudice the supply of such confidential information to SafeWork.

[15]

Clause 6 - secrecy provisions

Clause 6(1) of the Table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act.
Section 271 of the WHS Act is set out above. It prohibits disclosure of information or the giving of access to a document obtained in exercising any power or function under that Act. Information provided in response to a Notice issued under s 171 of the WHS Act is captured by s 271.
As was noted by the Appeal Panel in Fraser v SafeWork NSW [2020] NSWCATAP 92 at [34]: Section 11 of the GIPA Act provides that that Act overrides a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified exceptions, other than a provision of a law listed in Sch 1 as an overriding secrecy law. Clause 1 of Sch 1 to the GIPA Act identifies the relevant overriding secrecy laws, and s 271 of the WHS is not included in that list.
As information caught by the s 271 prohibition is not subject to a conclusive presumption in Schedule 1 of the GIA Act, it may therefore be disclosed unless there is an overriding public interest against disclosure. In addition, there are a number of exceptions to the prohibition on disclosure contained within s 271(3) and (3A). Of relevance to this matter is s 271(3)(e) which provides that the prohibition against disclosure of information or the giving of access to a document does not apply if the disclosure or access is required or authorised under a law. As was stated by the Appeal Panel in at [32], this would include a determination to provide access under the GIPA Act.
I am satisfied that s 271 is a secrecy provision within the meaning of clause 6 of the GIPA Act and that the Georgiou information is therefore included within the prohibitions as set out in s 271. I am also satisfied that disclosure of the withheld information could reasonably be expected to constitute a contravention of s 271 of the WHS Act which prohibits the disclosure of information, whether or not the prohibition is subject to specific qualifications or exceptions.

[16]

Is there an overriding public interest against disclosure of the information?

There is no doubt that there is a legitimate interest in the disclosure of information concerning possible exposure to silica dust arising out of the construction of the Mona Vale Road East Upgrade. I understand that Mr Walker has a keen interest and concern in relation to these matters and I have taken this into account in my consideration.
It is also important that SafeWork is accountable and seen to be independent and diligent in its investigation of possible breaches of the relevant legislation. Matters concerning the health and safety of workers (and the public) are of great public importance and should be given considerable weight. It is important, however, that the integrity of the investigation process and the means by which all relevant information can be obtained by WorkSafe in performing its functions can be maintained.
As set out above, I am satisfied that the factors set out in clauses 1(d) and 1 (f) of the Table to s 14 of the GIPA Act are applicable to the information which has been withheld from Mr Walker. In my view, considerable weight should be given to these considerations. Georgiou provided its responses to SafeWork under compulsion and has maintained that they should be kept confidential. In order to adequately fulfil its functions under the WHS Act, SafeWork must be able to obtain all relevant information even if that information is adverse to the interests of the person or entity providing it. In addition, those providing the information must be able to have confidence that their information will be used only for the purpose for which it was provided and not otherwise disclosed without authority. Elements of the integrity of the work health and safety system in NSW would be undermined if the supply of information to WorkSafe is prejudiced by the release of the withheld Georgiou information.
I am also satisfied that that the withheld information comes within clause 6 of the Table to s 14 of the GIPA Act. I accept the submissions of SafeWork that the very broad wording of the prohibition on disclosure and access in s 271 of the WHS Act is indicative of an intention by the legislature to provide a protection against disclosing information which has come to the knowledge of WorkSafe in exercising its powers and functions under that Act. SafeWork points to a passage from the Second Reading Speech on the introduction of the Work Health and Safety Bill 2011 where the then Deputy Premier stated that the Act was intended to "strengthen the capacity of regulators to work with businesses and workers to improve health and safety and reduce the tragedy of workplace death and injury". This is not to say that the information can't be disclosed. There is no doubt that it can be disclosed under the GIPA Act unless there is an overriding public interest against disclosure (see the Appeal Panel in Fraser).
In Perilya v Nash [2015] NSWSC 706 Hall J stated that s 271 of the WHS Act is one of the "protective provisions" contained within that Act and observed at [10] that s 271 "is directed at ensuring confidentiality in relation to information obtained". In my view, for the reasons already expressed, it is important that, SafeWork as the regulator is able to secure compliance with the WHS Act and that it is able to maintain the confidentiality of information obtained or accessed so as to fulfil its statutory obligations. I am satisfied that this public interest consideration against disclosure should also be given significant weight.
Overall, I am satisfied that in this matter, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of the disclosure and that withheld Georgiou information should not be released. The correct and preferable decision, therefore, is to affirm the decision under review.

Walker v SafeWork NSW

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