Be ee ne ee ee eb ee oo oe re CATCHWORDS FREEDOM OF INFORMATION - Claim for exemption — Information held by Department of Health pursuant to Health Insurance Act 1973 - Provision in Health Insurance Act prohibiting disclosure of information with respect to the affairs of another person which was acquired in the performance of duties or the exercise of powers or functions made under the Act - Whether this provision is a provision "applying specifically to information of a kind-contained in the document" and prohibiting disclosure - Costs of parties joined. Freedom of Information Act 1982 ss.4, ll, 38. Health Insurance Act 1973 s.130. Administrative Appeals Tribunal Act 1975 s.45. Federal Commissioner of Taxation v Swiss Aluminium Ltd (1986) 66 ALR 159 followed. News Corporation v National Companies and Securities Commission (1984) 1 FCR 64, Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 referred to. NSW G.60 of 1986 KATHLEEN MAY HARRIGAN v_ DEPARTMENT OF HEALTH & QRS Fisher, Wilcox and Jackson JJ Sydney 13 November, 1986. 12 NOV 1986 DERAL COURT OF FE AUSTRALIA PRINCIPAL REGISTRY les Tae styrene aoe eee eae me ee ee ee ae er whos Bee a ee re ee a RE te. CeO eee wt Bene 2 et ee, IN THE NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION FEDERAL COURT OF AUSTRALIA No. G.60 of 1986 wee ww we PLACE: DATE: BETWEEN: KATHLEEN MAY HARRIGAN Applicant AND: DEPARTMENT OF HEALTH Respondent AND: AUSTRALIAN MEDICAL a ASSOCIATION, BESSIE SMYTH FOUNDATION, DARLING STREET WOMENS ' HEALTH CENTRE, DR _ GEOFFREY S_ BRODIE, DR GEOFFREY L R DAVIS, DR_SUSAN HEPBURN, DR_N J MARENKO, DR LEN FREUBERG and DR_BERTRAM WAINER Parties Joined FISHER, WILCOX and JACKSON JJ SYDNEY 13 NOVEMBER 1986 MINUTES OF ORDER me mee emrepne es eee rs vata ot spe nr cere "5 . € SOI eee Ee a ee a te en = Haren teem re ee, 2- THE COURT ORDERS THAT: Note: The question referred to the Court by the Administrative Appeals Tribunal, namely "whether s.130 of the Health Insurance Act 1973 is an enactment of a kind referred to in s.38 of the Freedom of Information Act 1982?", be answered in the affirmative. The question of costs be reserved pending receipt of any written submissions which the parties may choose to make within fourteen (14) days of this order being made. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. bee tee pee Secale Co a = eam et ee ee OF RR ARTT ee rane ot ae Sime Te IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G60 of 1986 ee ee GENERAL DIVISION BETWEEN: Kathleen May Harrigan Applicant Department of Health iB Respondent and oe Australian Medical Association, Bessie Smyth Foundation, Darling Street Womens' Health Centre, Dr Geoffrey S. Brodie, Dr Geoffrey L.R. Davis, Dr Susan Hepburn, Dr N.J. Marenko, Dr Len Freuberg, and Dr Bertram Wainer Parties Joined CORAM: FISHER, WILCOX AND JACKSON Jd. DATE: 13 November 1986 PLACE: SYDNEY REASONS FOR JUDGMENT Fisher and Jackson JJ. The Administrative Appeals Tribunal, acting under s.45(1) of the Administrative Appeals Tribunal Act 1975, has referred to the Court a question of law arising in a proceeding before fous, fom pee ot orn, - Ree ee wear oe LL aa RT ee Se the Tribunal, the question being whether s.130 of the Health Insurance Act 1973 is an enactment of a kind referred to in s.38 of the Freedom of Information Act 1982. The question arises because by letter dated 18th July 1984 the applicant sought from the Department of Health access pursuant to the Freedom of Information Act to information for the period Ist July 1978 to 30th June 1984, the information (as stated in the Special Case referring the question of law to the Court) being:- "(i) Yearly breakup of the incidence of all services the subject of claims, (ii) Breakup of all money paid to each doctor for each item, (iii) Yearly breakup of all abortion claims under item 6469 or any other abortion related item, in relation to:- (a) Seventeen named medical practititioners ..., (b) All doctors operating at seven named clinics ..., (c) All doctors performing abortions at Tweed Heads, (d) The five doctors in each State and Territory doing the most number of abortions." The request for access was refused by letter dated 6th December 1984 by the Acting First Assistant Director-General of Health, Medical Benefits Division and in that letter the documents, which are in the form of computer print-outs, were claimed to be exempt by reason of s.38 of the Freedom of Information Act. An internal review of that decision took place pursuant to s.54 of the Freedom of Information Act by the Deputy Secretary of the Department of Health and the earlier decision was upheld. An application was then made to the ae ort as a ait, pte ty 4 Ware mew a wen ene ge een seme em ems Wyott -—4 ae mor ~ ames - i re a ec) ~~ oF FN ee eter ee = earthed 1 Administrative Appeals Tribunal for review of that decision. S.11(a)_ of the Freedom of Information Act provides that:- "Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to - (a) a document of an agency, other than an exempt document." The Department of Health is an "agency" (see the definition of that term in s. 4(1)) and s.38 is one of a number of provisions defining the circumstances in which documents will be "exempt documents" for the purposes of s.il(a). It is as follows:- "38. A document is an exempt document if there is in force an enactment -applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications." The operation of s.38 has been considered by the Court on several occasions and the effect of those decisions, so far as presently relevant, may be stated as follows:- (a) An enactment does not satisfy s.38 if it does no more than prohibit the disclosure of information identified only by reference to the capacity of the person who has received or is in possession of the information (The News Corporation Ltd v. National Companies and Securities Commission (1984) 1 F.C.R. 64 at 70 per Bowen C.J. and Fisher J.). BREN Tee cee -- fe ee tat Tey ~ ort LD rea eae Ie ro, poy are ww a, Ve (b) An enactment does not satisfy s.38 if it does no more than prohibit the disclosure of information identified pore only as information obtained in pursuance of the AG enactment in which the prohibition is found (Kavvadias v. Commonwealth Ombudsman (1984) 1 F.C.R. 80 at 85). nm (ec) The two types of enactment to which we have referred do cen op eee oe a not satisfy s.38 because they do not sufficiently identify the type of information which is the subject \, r of the prohibition upon disclosure. A provision, however, which identifies the information as information "respecting the affairs of another person" will ordinarily be sufficiently specific to satisfy s.38 (Federal Commissioner of Taxation v. Swiss Aluminium Australia Ltd (1986) 66 A.L.R. 159 at 162-163 (Bowen C.J.) and at 167, 168-169 (Jackson J.)). With these considerations in mind we turn to s.130(1) of the Health Insurance Act which is as follows:- t "{1) A person shall not, directly or indirectly, except in the performance of his duties, or in the exercise of his powers or | functions, under this Act, and while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him in the performance of his duties, or in the exercise of his powers or functions, under this Act. Penalty: $500." It will be seen that the prohibition in s.130(1) is limited to b "7 7 ft ve1 ' .i information which is "with respect to the affairs of another person" and which has been acquired by the officer or former officer in the performance of his duties or in the exercise of his powers and functions under the Act. The provision, in our view, is relevantly indistinguishable from that in consideration in Federal Commissioner of Taxation v. Swiss Aluminium Ltd (supra) and we see no reason why the Court should not arrive at a similar conclusion in this case, namely that s.130(1) is an enactment to which s.38 applies. The applicant contended, formally, that Federal Commissioner of Taxation v. Swiss Aluminium Australia Ltd (supra) was wrongly decided but, on the assumption that it would be followed by the Court, — — sought to contend that the provisions of s.130 other than s.130(1) were such that the meaning which s.130(1) would prima facie bear should not be attributed to it. The applicant's contention in this regard was that notwithstanding that s.130(1) appeared to describe the information to which it applied as being information which was:- (a) with respect to the affairs of another person; and (b) which had been acquired by the officer in the performance of his duties or in the exercise of his powers or functions under the Act; the succeeding provisions of s.130 were such that they should be treated as similar in effect to those in issue in Kavvadias v. Commonwealth Ombudsman, (supra) i.e. as covering all information acquired by the officer in the performance of his duties or in the Ue, sane wage se ee eee -—_~+—— - — -- - = Been Do ee Teele wee eet exercise of his powers or functions under the Act, the words "with respect to the affairs of another person" in s.130(1) being inserted only to ensure that the prohibition did not apply to information respecting the affairs of the officer himself. Reliance was then placed upon the fact that provisions such as s.130(3) did not contain any reference to information "with respect to the affairs of another person" but simply dealt with information acquired by an officer in the performance of his duties or in the exercise of his powers or functions under the Act. We should set out s.130(3) which is as follows:- "(3) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the General —~— —Manager of the Commission may - (a) if the Minister certifies, by instrument in writing, that it is necessary in the public interest that any information acquired by an officer in the performance of his duties, or in the exercise of his powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; (b) divulge any such information to any prescribed authority or person; or (ec) divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorised by the person to whom the information relates to obtain it." We are unable to agree with this submission. In the first place it seems to us to be opposed to the very clear words of s.130(1) ~ a penal provision - which require that the information be both with respect to the affairs of another person and acquired by the officer in the performance of his duties or in the exercise of his powers or functions under the Act. Secondly, to the extent to which s.130(3) ~~ "or en ee "7 aq and the succeeding provisions of s.130 are exceptions to the generality of the operation of s.130(1), they are also exceptions to the generality of the operation of s.130(2) which is as follows:- "(2) A person who is, or has been, an officer shall not, except for the purposes of this Act, be required - (a) to produce in court any document that has come into his possession or under his control in the performance of his duties or functions under this Act; or (b) to divulge or communicate to a court any matter or thing that has come under his notice in the performance of any such duties or functions." It seems obvious enough that the manner in which the succeeding provisions of s.130 have been drawn does no more than recognize that —-~the information that is the subject of the prohibition in s.130(2) is wider than the information the subject of the different prohibition in s.130(1) and that a reference to information in the wider category will encompass that in the narrower category also. Thirdly, the succeeding provisions of s.130 do not merely provide exceptions to ss.130(1) and 130(2). They also confer authority to divulge information on particular persons in particular circumstances. It is not, we think, right to regard them as merely exceptions to ss.130(1) and 130(2). We would answer the question referred by saying that:- "$.130(1) of the Health Insurance Act 1973 is an enactment of a kind referred to in s.38 of the Freedom of Information Act 1982." Tv ve Sp er tye eet ot yer gece I a We turn then to consider the question of costs. In the proceedings before the Administrative Appeals Tribunal orders were made under s.30 of the Administrative Appeals Tribunal Act Te ts joining as parties to the proceedings the Australian Medical Association and some other persons and bodies. The parties so joined were joined at their own request. They were all represented before the Court by counsel and in substance adopted the argument advanced on behalf of the first respondent. Subject to any relevant statutory provision, it is generally desirable that persons whose interests may be affected by the outcome of proceedings before the Tribunal have the opportunity of participating in those proceedings. The general rule is that, before the Tribunal, all parties bear their own costs. There is, therefore, little danger that a decision to allow the joinder of additional parties will result in the imposition on another party of an undue burden of costs. By contrast, however, in proceedings in the Court under ss.44 and 45 of the Administrative Appeals Tribunal Act it is usual to order that the unsuccessful party pay the costs of the successful party. Care needs to be exercised to ensure that a combination of a liberal attitude as to joinder before the Tribunal and the application in this Court of the usual costs rule does not result in unfairness to the party who is unsuccessful. As the matter of costs is discretionary, no fixed rule can, or should, be propounded but relevant matters for consideration are the nature of the particular proceedings and the my Cola, vr Woe ee ee ae yore ge os 8 SS a position taken by the various parties before the Court. The present proceeding is a case stated, for its own guidance, by the Tribunal. In relation to the question raised by the case, the interest of the parties joined was identical to that of the respondent Department. Under these circumstances a question arises as to whether it would be right to visit upon the unsuccessful applicant the costs of the parties joined. The order which we are minded to make in the particular circumstances in relation to costs is an order that the applicant pay to the first respondent its taxed costs of the proceedings before the Court, but to make no other order as to costs. We would, however, give the parties a period of 14 days within which to make any written submissions which they may choose to make on the question of costs before the Court proceeds to make a formal order in that regard. I certify that this and the eight (8) preceding pages are a true copy of the - Reasons for Judgment herein of their Honours Mr Justice Fisher and Mr Justice Jackson. Date: /3 Meweuter (986 Associate: Pilla clesalictr IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: PLACE: DATE: No. G.60 of 1986 BETWEEN: KATHLEEN MAY HARRIGAN Applicant AND: DEPARTMENT OF HEALTH Respondent AND: AUSTRALIAN MEDICAL ASSOCIATION, BESSIE SMYTH FOUNDATION, DARLING STEEET WOMENS' HEALTH CENTRE, DR_ GEOFFREY S BRODIE, DR GEOFFREY L R DAVIS, DR_ SUSAN HEPBURN, DR N J MARENKO, DR_ LEN FREUBERG and DR_ BERTRAM WAINER Parties Joined FISHER, WILCOX and JACKSON JJ SYDNEY 13 November 1986 REASONS FOR JUDGMENT WILCOX J: I have had the advantage of reading in draft form the reasons for judgment of Fisher and Jackson JJ. For the reasons they give, I agree that this case is not relevantly distinguishable from Federal Commissioner of Taxation v Swiss Aluminium Australia Ltd (1986) 66 ALR 159. In Swiss Aluminium there was a division of opinion within the Court as to whether s.16 of the Income Tax Assessment Act 1936 was an enactment of a kind referred to in s.38 of the Freedom of Information Act 1982. Although the present applicant formally submitted to us that the majority view was erroneous, we were not invited to review the correctness of that decision. That task will shortly be undertaken in the High Court of Australia, special leave to appeal against the decision in this Court having recently been given. Those circumstances make it unnecessary for me to express any opinion about the views respectively expressed in Swiss Aluminium. I am content to agree that, Swiss Aluminium being indistinguishable, the question rafsed by the case stated should be answered in the manner proposed by the other members of the Court. I share the views expressed by Fisher and Jackson JJ concerning costs. I certify this page to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. Associate: Ce EL ——— Date: 13 November, 1986. 7, a er Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Counsel for First Joined Party: Solicitors for First Joined Party: Counsel for Second and Third Joined Parties: Solicitor for Second and Third Joined Parties: Counsel for Fourth to Eighth Joined Parties: Solicitors for Fourth to Eighth Joined Parties: Date of hearing: Mr N A Cotman O'Hallorans Mr A Robertson Australian Government Solicitor Mr M Bozic Dawson Waldron Ms H G Murrell The Marion Brown Womens' Legal Resources Centre Mr M F Holmes Tress, Cocks & Maddox 23 October 1986 —e wpe ae ype eee se ' A pee or ont niet ner re er pr a re re ee re 2 pee