Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 Hearing dates: On the papers Date of orders: 30 March 2021 Decision date: 30 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE LAW – access to government information – secrecy provisions - whether disclosure could reasonably be expected to constitute a contravention any other Act – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure Legislation Cited: Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Work Health and Safety Act 2011 Cases Cited: Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 DDT v Charles Sturt University [2017] NSWCATAD 329 Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13 Fraser v SafeWork NSW [2019] NSWCATAD 227 Fraser v SafeWork NSW [2020] NSWCATAP 92 Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280. Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 Transport for NSW v Searle [2018] NSWCATAP 93 Category: Principal judgment Parties: Stuart Fraser (Applicant) SafeWork NSW (Respondent) Representation: Solicitors: Applicant (Self Represented) Legal, Department of Finance, Services and Innovation (Respondent) Also heard: Information Commissioner (see section 104(1), Government Information (Public Access) Act 2009) File Number(s): 2018/00348202 Publication restriction: Nil Reasons for Decision Introduction 1. The background to this matter is set out in Fraser v SafeWork NSW [2019] NSWCATAD 227 ("Fraser 2019"). In that decision I affirmed the decision by SafeWork NSW ("the Respondent") to refuse to provide the Applicant with access to information that he requested. The Applicant sought access to information provided by Blacktown City Council ("BCC"). The information comprised answers ("the BCC Answers") to a series of questions that BCC had given in response to a Notice issued by SafeWork's Inspector John Lennon under section 155 of the Work Health and Safety Act 2011 ("the WHS Act"). 2. The Applicant appealed that decision. The Appeal Panel decision is recorded as Fraser v SafeWork NSW [2020] NSWCATAP 92 ("the Appeal Panel decision") The Appeal Panel allowed the appeal and made orders remitting the matter for redetermination. 3. The Appeal Panel concluded at paragraphs [34] - [37]: 34 It is not clear from the approach adopted by the Tribunal in [79] to consideration of the public interest provisions in cl 1(d) and (f) whether the Tribunal regarded cl 6(1), and s 271, as applying in effect a conclusive presumption of an overriding public interest against disclosure. If that were the approach in fact adopted, that would reflect an error of law. 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. 35 The transcript does not assist in understanding how the issue was approached. The respondent's submissions below, while acknowledging that the Tribunal could order release under s 271(3)(e) after having gone through the usual exercise of considering the public interest in favour of disclosure, and whether that would have the effect of prejudicing the future supply of information (T 80), were also framed in terms of s 271 providing a comprehensive protection against disclosing any information which had come into the knowledge of the respondent in the course of the exercise of its functions under the WHS Act, a protection which would be applicable even if the information had been provided voluntarily (T 71). A further submission was made that the penalty provision in s 271(2) was an indication that the s 271 protection was intended by Parliament as being a mandatory provision, and that an absolute protection was provided (T 87). 36 A further cause for uncertainty as to how the Tribunal framed the task is that while the documents in dispute had been handed to the Tribunal at the hearing (T 91), the reasons for decision do not indicate whether the Tribunal considered those documents in order to address the issues posed in cl 1(d) and (f), or how the public interests in favour of disclosure should be weighed. While the Tribunal correctly identified at [9] that s 63 of the Administrative Decisions Review Act 1997 required the Tribunal to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law, that determination would in the ordinary case require the Tribunal to have regard to the documents to consider whether disclosure could "reasonably be expected to" have any of the effects specified in the provisions in the Table to s 14 of the GIPA Act, and the public interests in favour of disclosure. 37 The Appeal Panel is not persuaded that the Tribunal properly applied the relevant provisions of the WHS Act and the GIPA Act in reaching its conclusion. A failure to exercise jurisdiction conferred is an error of law, and the appeal should be allowed. The proceeding should be remitted to the Tribunal to consider the issues in accordance with these reasons. It will be a matter for the Tribunal to determine, having considered in context the public interests against disclosure as framed in the Table to s 14, whether those public interests on balance outweigh the public interests in favour of disclosure so that disclosure of the documents is authorised under the GIPA Act and thus under s 271(3) of the WHS Act. 1. Each of the parties and the Information Commissioner has made submissions in relation to the reconsideration. The Respondent has provided an unredacted copy of the BCC answers on a confidential basis. The BCC answers contain information about the BCC and the BCC does not consent to the disclosure of the information. For completeness I note that I have had regard to the BCC answers and the further submissions and I have also reviewed the material that was filed in relation to the Fraser 2019 decision. 2. The Respondent identified clauses 1(d) and 1(f) and clause 6 of the table to section 14 of the GIPA Act as relevant considerations. 3. Clause 1 of the Table to section 14 of the GIPA Act provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 1. Clause 6 of the Table to Section 14 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. 1. The Respondent continues to rely on its previous submissions in relation to the requested information. I have read the Applicant's submissions and it is not clear from those submissions whether his position has been varied. 2. The applicable legislation is discussed in Fraser 2019 and in the Appeal Panel decision. I will not repeat that discussion here but Ms Higgins, for the Information Commissioner, has provided a useful discussion on the necessary considerations. She submitted: Public interest test under the GIPA Act The public interest test in section 13 of the GIPA Act provides that: "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure." The task for the Tribunal is to determine whether the correct and preferable decision is that there is an overriding public interest against disclosure of the information, and as a merits review, the Tribunal is not concerned with the question of whether the decision under review itself was correct or incorrect: see, Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at [6]. The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information (Hurst v Wagga Wagga City Council [2011] NSWADT 307 and in Flack v Commissioner of Police, NSW Police [2011] NSWADT 286). The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place (at [96]). The balance is always weighted in favour of disclosure: see, Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. The Information Commissioner draws the Tribunal's attention to section 15(b) of the GIPA Act as relevant to the decision-making process under section 13, which confers a positive obligation on agencies to have regard to any relevant guidelines issued by the Information Commissioner. The Commissioner notes for the Tribunal its Fact Sheet, "What is the Public Interest test?" June 2018 ... The GIPA Act recognises the primacy of the presumption in favour of disclosure and, relevant to the matters subject to appeal, this is the guiding principle for the decision-making process when applying the section 13 public interest test. Only information identified in Schedule 1 and Schedule 2 of the GIPA Act is removed from this decision-making regime by the Act's provision for a conclusive overriding presumption against disclosure. [GIPA Act section 14(1)] Schedule 1 expressly identifies the statutes and the provisions within those statutes that attract this conclusive presumption. Schedule 1 identifies overriding secrecy laws that operate to prohibit disclosure of information. Schedule 2 concerns "excluded information" that may be released, despite the conclusive presumption, if the agency consents to its release. The task for the decision maker with respect to Schedule 1 information necessitates identification of the statute and the operative provision. The task for the decision-maker with respect to Schedule 2 information includes identifying whether the information relates to the excluded function, and whether the relevant agency consents to its disclosure. The Table to section 14 of the GIPA Act contains the factors that operate as public interest factors against disclosure. [GIPA Act section 14(2)] These factors do not operate as conclusive factors to exclude the information from release. Rather, the Act permits a decision-maker to take these public interest considerations against disclosure into account when applying the section 13 public interest test. The language of the GIPA Act conveys a calibrated approach to decision making. For the public interest test, the text of section 13 confirms that only those considerations identified by section 14 can be taken into account against the release of information, and that these factors must be weighed against unlimited factors in favour of disclosure. Accordingly, a general approach to decision making may not demonstrate a proper application of the GIPA Act, and in particular, section 61 of the Act which requires the agency decision-maker to provide reasons for its decision. Conclusive presumption under section 14(1) of the GIPA Act The Appeal Panel found that it was unclear whether the Tribunal in Fraser [2019] had correctly applied the public interest test. The Appeal Panel was concerned that the Tribunal may have "in effect" applied a conclusive presumption of an overriding public interest against disclosure in its consideration of clause 6. Government information for which it is to be "conclusively presumed that there is an overriding public interest against disclosure" is given "some special protection" [McKean v Department of Justice [2016] NSWCATAP 93 at [11]] by section 14(1) of the GIPA Act. An agency is not required to balance the public interests in favour of, or against, disclosure before refusing access to that information; and the Tribunal is precluded from considering the public interest test in relation to it: Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31], referring to Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]. This distinction was also explained in Park v Transport for NSW [2018] NSWCATAD 82 at [13]: "In general terms, government information is released to applicants unless it meets the criteria of information particularised in Schedule 1 of the GIPA Act. However, in various instances, government information not referred to in the Schedule may be withheld from release on the basis that there is an applicable public interest consideration against disclosure sufficient to 'override' the general public interest consideration in favour of disclosure. In all other instances the GIPA Act broadly contemplates release of government information." Secrecy provisions and the GIPA Act The GIPA Act also distinguishes between "overriding secrecy laws" subject to the conclusive or complete restriction on disclosure under Schedule 1, and "secrecy provisions" in clause 6 of the Table to section 14. The Tribunal has confirmed that, with respect to government information not covered by overriding secrecy laws, the GIPA Act establishes a principle that there is a public interest in favour of disclosure: section 12(1) and Mannix v Department of Education and Communities [2014] NSWCATAD 35 at [5]. The effect of section 11 is that access can be granted if, on balance, there is an overriding public interest consideration in favour of disclosure (Mookhey v Department of Finance, Services and Innovation [2018] NSWCATAD 128). The Tribunal must firstly be satisfied that the information withheld from disclosure is protected from disclosure by a secrecy provision, such as that it was obtained in connection with the administration or execution of the Act: see, Seremetis v NSW Department of Justice [2019] NSWCATAD 118 at [40]. If a secrecy provision applies to the information, and the secrecy provision is not prescribed in Schedule 1, the decision maker is to consider whether the public interest considerations against disclosure outweigh those in favour: section 13; see, Sinclair v Psychology Council of NSW [2017] NSWCATAD 8 at [11]. In these proceedings, the secrecy provision in section 271 of the WHS Act is not listed in Schedule 1 and, therefore, may be overridden by section 11 of the GIPA Act. While the Tribunal must consider the Respondent's submissions and evidence on the relevant provisions in the WHS Act, and its applicability to the reviewable decision to refuse to provide access to information (sections 58(1)(d); 80(d)), the Tribunal's review is concerned with the consideration of the provisions of the GIPA Act with respect to this reviewable decision: see, Sharpies v Tweed Shire Council [2015] NSWCATAD 59 at [32]. The Respondent has argued that the considerations arising from clauses 1(d), 1(f) and 6(1) include preserving the willing and confidential supply of future information, and the preferred approach is to preserve the confidentiality of the information (the "BCC answers"). … The Respondent asserts that "an overriding public interest against disclosure arises from the circumstances in which the BCC answers were provided, which include the answers having been provided under compulsion and where a statutory offence is created by further disclosure". … The Information Commissioner agrees with the Appeal Panel's conclusion … that the public interest test must be applied before determining whether the exception to the prohibition in section 271(3)(e) is available, in applying section 11, the exemption in section 271(3)(e) where disclosure "that is required or authorised under a law" is permitted, enlivens the jurisdiction of the GIPA Act. Since section 11 and the public interest test in the GIPA Act prevails over section 271 of the WHS Act, it is open to the Tribunal to find that the public interest in favour of disclosure outweighs the considerations in clauses 1(d), 1(f) and 6 to the Table to section 14. Alternatively, it is open to the Tribunal to find that the clauses 1(d), 1(f) and 6 circumstances outweigh the public interest considerations in favour of disclosure. Application of the Freedom of Information Act 1989 The Information Commissioner draws the Tribunal's attention to the Respondent's assertion that the information the subject of the access application ("BCC answers") should be treated in a similar manner to the way the answers would be treated if they were an exempt document under the Freedom of Information Act 1989 (FOI Act). … The Commissioner submits that caution should be exercised when drawing a comparative approach to decision-making requirements in the current GIPA regime, and its predecessor legislation. [See, Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [8]-[9]; Barrett v Commissioner of Police (NSW) [2014] NSWCATAD 32 at [35] and [54].] While many of the public interest considerations against disclosure in section 14 are expressed in similar terms to the exemptions that were in the FOI Act, care should be taken by the decision-maker in examining the earlier decision-making approach and the application of the legal principles to documents, not information. In particular, section 14 sets out "considerations" to be taken into account when determining whether there is an overriding public interest against disclosure in the application of the public interest test. These must be balanced in the public interest test against the starting point presumption in favour of disclosure. 1. As I have noted above, the Appeal Panel referred to comments that I made at paragraph [79] of Fraser 2019 and stated that the approach I adopted was not clear. In paragraph [79] I stated: 79 I note the Respondent's contention that other considerations against disclosure also apply to the withheld information. I agree that there is a need to preserve the willing and confident supply of information to SafeWork in the course of exercising its investigative functions. I also agree that that SafeWork's ability to obtain similar information from other sources in the future would be impaired by disclosure of the information. While I am in general agreement with the Respondent in this regard to these considerations against disclosure, given my finding in regard to clause 6(1) of the Table to section 14 I do not need to consider those matters further. 1. Clause 6(1) of the Table to section 14 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. In regard to clause 6(1) the Appeal panel stated: 34 It is not clear from the approach adopted by the Tribunal in [79] to consideration of the public interest provisions in cl 1(d) and (f) whether the Tribunal regarded cl 6(1), and s 271, as applying in effect a conclusive presumption of an overriding public interest against disclosure. If that were the approach in fact adopted, that would reflect an error of law. ... 1. This is not a matter in which there is a conclusive presumption of an overriding public interest against disclosure of the withheld information. The disclosure of the BCC answers under the GIPA Act is authorised if, on balance, there is an overriding public interest in favour of disclosure. This is the case notwithstanding the secrecy provision in section 271 of the WHS Act. 2. Section 271 prohibits disclosure of information or the giving of access to a document obtained in exercising "any power or function" under that Act. The BCC answers were provided in compliance with the Notice under section 155. The exceptions to the prohibition on disclosure include at section 271(3)(e), the disclosure of information or the giving of access to a document "that is required or authorised under a law", which would include a determination to provide access under the GIPA Act. 3. As the Appeal Panel has noted at paragraph [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. 1. It is necessary to undertake a balancing exercise between the public interest considerations against disclosure and those in favour of disclosure. 2. As I have noted, both the Applicant and the Respondent have provided written submissions in relation to this redetermination. The task to be undertaken is to weigh the considerations in favour of release against those against release. 3. The Applicant contends that the considerations against disclosure on which the Respondent relies are not compelling and are not deserving of the significant weight claimed by the Respondent. He submits that disclosure of the information would not inhibit, restrict or unduly affect the Respondent's ability to obtain information in the future requests. Clauses 1(d) and 1(f) -prejudice supply of confidential information; prejudice effective exercise of agency's functions 1. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)). It is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)). 2. The relevant elements of clause 1(d) are that: 1. the information was obtained in confidence; 2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and 3. the information facilitates the effective exercise of the agency's functions. 1. Clause 1(f) is also directed to whether disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions. It is convenient to address those considerations together. The first limb - confidential information 1. With respect to the first limb of clause 1(d), the Appeal Panel outlined the general approach to determining whether or not information is confidential information in Camilleri at paragraph [33]. The Panel held: "In our view, the question of whether the information supplied is 'confidential information' must 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 agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service." 1. It is not in dispute that the information was provided in response to a Notice issued by the respondent under section 155 of the WHS Act. It is not in dispute that section 271 of the WHS Act provides a comprehensive protection against disclosing any information which had come into the knowledge of the Respondent through that process. 2. The Respondent relies on the evidence of Ms Sue Stewart dated 30 April 2019 and the Statement of Mr Ian Blume dated 29 April 2019. These statements were tendered on behalf of the Respondent at the hearing in Fraser 2019. In my decision in Fraser 2019 I stated in relation to Mr Blume's evidence: 34 As noted above, SafeWork's Inspector John Lennon issued a Notice to BCC under section 155 of the WHS Act. Mr Blume stated that he was Inspector Lennon's manager and that Inspector Lennon has retired and is no longer employed by the Respondent. 35 Mr Blume provided a copy of the Notice issued by Inspector Lennon to BCC. 36 Mr Blume stated that he examined the Respondent's records associated with the steps taken by Inspector Lennon in connection with the Notice that he issued to BCC. He noted that the records indicate that Inspector Lennon used his powers under section 155 of the WHS Act to request information from BCC. From his review of the records he found that BCC responded to Inspector Lennon in compliance with the Notice. The records show that: (1) Inspector Lennon received a response to the Notice from BCC on 3 May 2017; (2) Inspector Lennon responded to BCC on 5 May; (3) BCC responded further to Inspector Lennon on 5 May; (4) Inspector Lennon received a further response to the Notice on 9 May 2017 37 Mr Blume stated that the information and documentation that BCC provided to Inspector Lennon was obtained by Inspector Lennon in response to the Notice and in the course of exercising his function as an inspector with SafeWork and in the course of his inquiries. 1. I stated in relation to Ms Stewart's evidence: 38 Ms Stewart stated that she oversaw the processing of the Applicant's access application and also the internal review request. She explained the processes that the Respondent adopted in relation to responding to the Applicant's application. This included the searches undertaken and the need for third party consultation. 39 Ms Stewart stated that SafeWork consulted with BCC in the course of processing both the initial application and the internal review application, and asked whether it consented to the release of the BCC answers. On both occasions BCC indicated that it did not consent to the release. This position was repeated in a further letter dated 18 March 2019 from BCC to the Respondent. 40 Ms Stewart expressed the view that a key public interest consideration is to protect the identity of people who make disclosures to SafeWork as the work health and safety regulator and that a further key public interest consideration is to protect information provided to SafeWork under compulsion. She stated that the BCC answers in this case fall into this category of information. 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 discharging its investigative functions under the WHS Act. 1. I am satisfied that the information in issue is 'confidential information' for the purposes of clause 1(d). The second limb - prejudice supply of future information 1. The second limb of clause 1(d) is not concerned with whether a particular person would in future refuse to supply the type of information that is in issue. Rather, the question as to prejudice is to be determined at a broader operational level. Clause 1(d) is concerned with the question whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future: see Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13 at paragraph [58], cited with approval in Camilleri at paragraphs [28] - [29]. 2. The Tribunal has accepted that disclosure of material arising from agencies' investigative processes could prejudice the supply of future information essential for those processes to function. In Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 the Tribunal found that clause 1(d) applied with respect the disclosure of confidential information obtained by officers in the course of an investigation under Part 8A of the Police Act 1990. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel disagreed that no prejudice to the supply of information would or could occur because of the duties of honesty of public servants. 3. However in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Senior Member Lucy did not accept that police officers would not give full and frank responses if confidentiality was not assured. She stated at paragraphs [84] - [85]: 84. There was evidence from the Commissioner that police are generally obliged to provide information in respect of a Part 8A investigation if the investigator wishes to interview them. Detective Inspector Raper gave evidence that the procedure, when investigating a Part 8A complaint, is to approach the subject officer for interview "under caution in criminal inquiries and under direction in departmental inquiries." The Detective Inspector stated that "[w]hether or not a subject officer declines to answer under caution, it will usually be the case that the subject officer is directed to answer questions under clause 8 of the [Police] Regulation [2008]." 85. That is, police officers are generally required to answer the questions put to them in an interview conducted under Part 8A of the Police Act 1990. They are under a duty to provide information in response to the questions they are asked. Further, under s 201 of the Police Act 1990, a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. It is also relevant that the Police Act 1990 provides in s 7(a) to (c) that each member of the NSW Police Force is to act in a manner which places integrity above all, upholds the rule of law and preserves the rights and freedoms of individuals. The duty to act in such a manner would require police officers to answer an investigator's questions honestly and not to conceal relevant information. 1. For the reasons that I set out below, I am satisfied that disclosure of the BCC answers could reasonably be expected to prejudice the supply to an agency of confidential information. It is likely that the Respondent's ability to obtain similar information in the future could be impaired. The third limb - effective exercise of an agency's functions 1. Many agencies rely on information from outside the agency to deal with issues that require investigation. The Tribunal has found in a number of cases that disclosure of information given in relation to an investigation could reasonably be expected to prejudice the effective exercise by the agency of its functions. The Tribunal has recognised that agencies will be less likely to receive information of this kind if there were not some assurance of confidentiality: see for example Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43; Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280. 2. In DDT v Charles Sturt University [2017] NSWCATAD 329, the Tribunal concluded at paragraphs [48] – 49]: "The fact that a report into a complaint may be disclosed to the complainant at the complainant's request is not likely in my view to discourage future complaints from being made. However that does not mean that the clause 1(d) and 1(f) factors are not relevant or of significant weight in this case. It is important to the investigation of academic misconduct that any persons communicating with the investigators can be assured, if appropriate, that their communications will be treated confidentially. The disclosure of the report will disclose confidential communications from persons other than the applicant himself." 1. Clause 1(f) concerns situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions. Similar considerations apply as in regard to clause 1(d). 2. For the reasons that I set out below, I am satisfied that disclosure of the BCC answers could reasonably be expected to prejudice the effective exercise by the Respondent of its functions The weight to be given to clauses 1(d) and 1(f) 1. In the circumstances of this matter, the information has been provided in circumstances in which there is a reasonable expectation of confidentiality. I accept that the obligation to provide information pursuant to a notice under section 155 would remain if the BCC answers were disclosed and that it is probable that a response would be forthcoming. However, in my view it is probable that the response is more likely to be honest, full and frank and that the answer to an investigator's questions would not conceal relevant information if confidentiality is assured. In my view the recipient of the Notice is less likely to provide a comprehensive response if they were aware the information was likely to be disclosed. It could reasonably be expected that disclosure of such information would impede frank communication and that, as a result, the agency's function would be adversely affected. 2. The Respondent submits that the protection afforded by section 271 of the WHS Act and the fact that the BCC answers having been provided under compulsion are considerations against disclosure. It is further submitted that the fact that BCC was concerned to ensure that the statutory protection against further disclosure was secured prior to the BCC answers being provided, presents an even more compelling consideration in this case. 3. I agree with that submission. 4. In my view, clauses 1(d) and 1(f) of the Table to section 14 should be given significant weight. Clause 6(1) - contravention of a provision of any other Act 1. The Respondent submitted that if any officer of the Respondent was to disclose any of the BCC answers, that person would be committing an offence under section 271(2) of the WHS Act. The offence would be committed unless one of the provisions in section 271(3) is applicable. 2. If applicable, section 271(3) could prevent an offence being committed by such a disclosure of the BCC answers. In the circumstances of this matter, if not for the provisions of section 271(3)(e) disclosure of the BCC answers could reasonably be expected to constitute a contravention of that Act. 3. The secrecy provisions in section 271 of the WHS Act constitute a public interest consideration against disclosure of the BCC answers. In my view, clause 6(1) of the Table to section 14 should be given significant weight. Public interest considerations in favour of disclosure 1. I identified various public interest considerations in favour of disclosure from paragraph [20] of Fraser 2019. I do not propose to discuss them again here. The Applicant has not identified any additional considerations that I consider to be relevant to this matter. 2. The Applicant has suggested that a decision to release information in other matters should be taken into account in this matter. However, each access application is determined in accordance with the approach provided for in the GIPA Act and the weighing process applicable to the particular matter. In this matter, I am not satisfied that disclosure of different information in response to other access applications is a consideration to be taken into account. 3. I consider that reasonable weight should be given to the public interest considerations in favour of disclosure. Weighing the considerations in favour of and against disclosure 1. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. There can be an overriding public interest against disclosure only when the public interest test in section 13 is satisfied. It provides that "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 2. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the provisions set out in schedule 1. Therefore, section 271 of the WHS Act does not provided a conclusive presumption against disclosure of the BCC answers. 3. I discussed the various public interest considerations in favour of disclosure in Fraser 2019. These include the Applicant's education and road safety interest in the BCC answers and associated public interest in disclosure. I have taken the Applicant's basis for his interest in access to the BCC answers into consideration. I consider that reasonable weight should be given to those considerations. 4. As I have indicated, it is my view that significant weight is to be given to the considerations in clauses 1(d) and 1(f) and to clause 6(1) of the Table to section 14 of the GIPA Act. The circumstances in which the BCC answers were provided are significant. The answers were provided under compulsion and this gave rise to a statutory offence against disclosure. The BCC was concerned to ensure the securing of the statutory protection against disclosure. 5. There is a public interest in maintaining the supply of information to the Respondent to enable the effective exercise of its functions. I accept that the Respondent has an ongoing need for unfettered supply of information sought by its inspectors acting in the course of their investigative functions under the WHS Act and that this is fundamental to its core operations. The need to preserve the future supply of information to regulators is a significant consideration and this could be affected by the release of information such as the BCC answers. 6. Those providing information to a regulator in confidence should be able to take comfort in the understanding that the information that they provide will be usually kept confidential. If that confidence is compromised it could be reasonably expected to prejudice the future supply of information. It is likely that the Respondent's ability to obtain similar information in the future could be impaired and therefore the disclosure could reasonably be expected to have the effect referred to in clauses 1(d) and 1(f) of the Table at section 14 of the GIPA Act. 7. The BCC answers are clearly confidential. Disclosure under the GIPA Act is effectively disclosure tot eh world as no restrictions can be placed on its use. Disclosure to members of the public would amount to a breach of section 271 of the WHS Act if it were not for the not for the application of section 271(3)(e). This is a public interest consideration against disclosure of the information. It is my view that significant weight is to be given to this consideration against disclosure. 8. When the competing interests are weighed, it is my view that the public interest considerations against disclosure of the BCC answers outweigh the considerations in favour of disclosure. These considerations outweigh the ordinary presumption in favour of disclosure. 9. Accordingly, it is my view that the Respondent has made the correct and preferable decision and therefore it should be affirmed. Order 1. The decision under review is affirmed. ********** 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: 30 March 2021