Set aside by Appeal : Set Aside by Appeal on 14 March 2007: Commissioner for Fair Trading, Office of Fair Trading v The Australian Wine Consumers Co-Operative Society Limited (GD) [2007] NSWADTAP 14 CITATION: The Australian Wine Consumers Co-Operative Society Limited v Commissioner for Fair Trading [2005] NSWADT 224 DIVISION: General Division APPLICANT PARTIES: The Australian Wine Consumers Co-Operative Society Limited RESPONDENT Commissioner for Fair Trading FILE NUMBER: 053047 and 053048 HEARING DATES: 3/06/2005 SUBMISSIONS CLOSED: 06/03/2005 DATE OF DECISION: 10/05/2005 BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - secrecy provisions - Freedom of Information Act - access to documents - secrecy provisions MATTER FOR DECISION: Principal matter Co-operatives Act 1992 Freedom of Information Act 1966 (USA) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 LEGISLATION CITED : Freedom of Information Act 1992 (Qld) Income Tax Assessment Act 1936 (Cth) Independent Commission Against Corruption Act 1988 National Companies and Securities Commission Act 1979 (Cth) Ombudsman Act 1974 Police Integrity Commission Act 1996 Federal Commissioner of Taxation v Swiss Aluminium Australia Ltd (1986) 66 ALR 159 at 167) Law Society of New South Wales v General Manager, Work Cover Authority of New South Wales (No. 2) (GD) [2005] NSW ADTAP 33 CASES CITED: News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 re Birrell and Department of Premier and Cabinet (1990) VR 51 Richardson v Business Licensing Authority [2003] VCAT 1053 Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41 APPLICANT REPRESENTATION: A Naylor, counsel RESPONDENT J Renwick, counsel ORDERS: 1.The respondent's determination that the documents the subject of this application are exempt under cl.12 of the FOI Act is set aside; 2.The Registrar to set the matter down for hearing on the remaining issues at a date that is suitable to the parties REASONS AND DECISION Introduction 1 In August 2004, the applicant ("the Australian Wine Consumers Co-Operative Society Ltd") made two requests to the respondent (Commissioner for Fair Trading) seeking access to specified documents under the Freedom of Information Act, 1989 ("FOI Act"). These requests have resulted in two applications (File No. 053047 and 053048) for review of the respondent's decision to refuse access to documents that had been sought. 2 File no. 053047, relates to the applicant's request for all documents concerning complaints about the applicant that were made by members of the applicant ("FOI request 1"). File no. 053048 relates to the applicant's request for copies of all correspondence between the respondent and fifteen specified members of the applicant during the period 1 January 2001 to August 2004 ("FOI request 2"). 3 Following consultation, in respect of both FOI requests, on 8 November 2004, the respondent decided to grant the applicant access to some documents and refused access to the remaining documents on the grounds that the documents were exempt under the following clauses of schedule 1 of the FOI Act : cl.12 (secrecy provision); cl.4(1)(b) (documents affecting law enforcement and public safety); cl.6 (documents affecting personal affairs); and cl.13(b) (documents containing confidential material). 4 The applicant requested an internal review of the respondent's decision, which was determined on 17 December 2004. The internal review decision affirmed the original decision. 5 At the commencement of the hearing of the matter the applicant and the respondent made a joint application for a separate hearing on the question of whether the documents, for which access had been refused, were in fact exempt under cl.12 of schedule 1 of the FOI Act. Both parties agreed that if the secrecy provision in s.431 of the Co-operatives Act 1992 came within the terms of cl.12 of Schedule 1 of the FOI Act and the documents for which access had been refused came into existence or were held pursuant to s431, this would dispose of both applications as they would be exempt under cl.12 of the FOI Act. 6 In light of the joint application, the Tribunal agreed to proceed by hearing and making a determining as to whether the documents in question were exempt under cl.12 of the FOI Act. Background 7 The applicant is a co-operative registered under the Co-operatives Act 1992. That Act provides for the establishment of co-operatives and the regulation of their operations. The Act makes provision in respect of the formation of a co-operative (Part 2), the legal capacity and powers of a co-operative (Part 3), membership of a co-operative (Part 4), rules of a co-operative (Part 5), requirements for active membership (Part 6) shares in a co-operative (Part 7), voting (Part 8), management and administration of co-operatives (Part 9) and other matters relating to the operation of a co-operative. In essence the Act provides for the incorporation as a co-operative of any group (including bodies incorporated under the Corporations Act 2001 (Cth)) that is willing to abide by the traditional co-operative principles which included democratic control, returns on share capital being limited, commitment to education of members and employees and co-operation with other co-operative societies at the local, national and international level. While a co-operative registered under the Co-operatives Act 1992 is not a corporate entity coming within the Corporations Act 2001 (Cth) and visa versa, the Co-operatives Act 1992 contains similar provisions regulating a co-operative to that which is contained in the Corporations Act 2001 (Cth) for a corporation. 8 Part 15 of the Co-operatives Act 1992 makes provision for the administration of the Act and s.409 vests in "The Registrar" responsibility for the general administration of the Act. That section also provides that the Registrar is conferred with those functions prescribed under the Act. These include the keeping of a register of co-operatives (ss410 & 410A) and those functions contained in Part 14, which relate to the supervision and protection of co-operatives. These particular powers are discussed more fully below. 9 It is not disputed that the Registrar is the respondent Commissioner. Evidence 10 The respondent has provided the Tribunal, on a confidential basis, copies of the documents that come within the terms of the two FOI requests of the applicant. I have examined these and I am satisfied that they all relate to complaints or queries received by the respondent. There is no need to provide any further detail in respect of the contents of these documents for the purpose of determining the preliminary issue. Relevant legislation 11 The issue for determination in this preliminary issue is primarily one of construction. First, the proper meaning of cl.12 of Schedule 1 of the FOI Act and then the proper meaning of s.431 (in particular s.431(1)) of the Co-operatives Act 1992 and whether it is a provision to which to cl.12 applies. Clause 12, Schedule 1 FOI Act 12 Clause 12 of schedule 1 of the FOI Act provides as follows: "12(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence". 13 On a literal reading, cl.12 appears to require a two-stage process in determining whether a document is exempt. The first stage (i.e. cl.12(1)) involving a determination as to whether the document for which access is sought contains "matter" the disclosure of which would constitute an offence, regardless of any prescribed excuses (qualifications or exceptions). The second stage (i.e. cl.12(2)) involving a determination as to whether a disclosure , to the FOI applicant, of the "matter" contained in the document for which access is sought would constitute an offence. It is at this stage where consideration is given to the qualifications or exceptions that have been prescribed in the relevant section that creates the offence. However, unless the first stage has been satisfied, the second stage has no application. That is in order for a document to be exempt under cl.12 both cl.12(1) and (2) must be satisfied. 14 Anne Cossins in Annotated Freedom of Information Act NSW (Lawbook Company) at [112.2] explained the operation of this exemption as follows: "… For the exemption to apply, an agency or minister will first have to identify specific information in a document and identify a specific provision which would make disclosure of that information an offence . In other words, cl 12 can only apply if there is a secrecy provision that specifically applies to particular information in the document. …" 15 She went on to say at [112.3.2] that the preferred interpretation of cl.12 was that: "… the exemption will not apply in circumstances where there are qualifications or exceptions which provide methods by which an agency could release information (such as, obtaining consent or other lawful means): … This would mean that if there is an exception or qualification which permits disclosure under a secrecy provision, then that exception should also permit disclosure under the FOI Act. …" 16 In my opinion, the express words of cl.12 do not support such a wide interpretation. However, her explanations appear to support a two stage process of determination 17 In the recent decision of Law Society of New South Wales v General Manager, Work Cover Authority of New South Wales (No. 2) (GD) [2005] NSWADTAP 33 (currently subject to appeal) the Appeal Panel, considered cl.12, in particular, the appropriate approach to interpreting that clause. At [113] and [137] it said:- "113 In our view an approach must be adopted to the interpretation of cl.12(1) which preserves the effective operation of the NSW FOI Act. The clearest case where s.12 would be applicable is one where there is, in the way sought to be reflected in the Commonwealth and Victorian provisions, a close or precise correspondence between the type of matter the subject of the claim for exemption and then a description of the matter of the same type in the offence provision…" and "137 …In our view a purposive approach to the application of cl.12(1) must be taken, one which ensures that the objectives of the FOI Act are maintained, especially where the secrecy provision relied upon does not refer specifically to the kind of information for which exemption is claimed." 18 At [109] and [110] the Appeal Panel pointed out that the equivalent exemption contained in s.38 of the Victorian Freedom of Information Act 1982 and the original form of s.38 of the Commonwealth Freedom of Information Act 1982 were derived from the United States Freedom of Information Act 1966 (5 USC s.552(B)(3)) which protected from access information in documents where an enactment, other than the relevant freedom of information enactment, prohibited particular persons from disclosing specific information and the information for which access was sought was such specific information. That provision, which continues to apply in Victoria provides 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." 19 This section has been construed to include only those secrecy provisions that specifically prohibit the disclosure of information contained in the document for which access is refused. That is, in order for s.38 to apply to a secrecy provision that secrecy provision had to have a "direct and explicit reference to the nature of information" contained in the alleged exempt document (see News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 85). On the other hand, a secrecy provision did not come within s.38 if it did no more than prohibit disclosure of material received by particular persons in a particular capacity (see News Corporation at p.70). That is, the emphasis in s.38 was to the nature of the information in a document as opposed to the capacity in which it was received. I have dealt with this more fully below. 20 In Law Society of New South Wales the Appeal Panel noted that the equivalent provision under the Queensland Freedom of Information Act 1992 (s.48) and the amended Commonwealth provision only applied to secrecy provisions that were expressly prescribed in the schedules of the respective Freedom of Information Acts. It was also noted that those that were prescribed related to agencies, which collected or were recipients of very sensitive information. The Tribunal notes that the secrecy provisions specified in the Queensland and Commonwealth Freedom of Information Acts do not include a secrecy provisions in respect of information collected or received by an agency similar to that of the Registrar under the Co-Operatives Act 1992. In particular, it is noted that the Commonwealth Act does not specify information received and collected by the Australian Securities and Investment Commission, which is responsible for regulating corporations. 21 At [136] the Appeal Panel pointed out that at the time the FOI legislation was debated in Parliament, the Government of the day had indicated that a similar approach of prescribing a list of secrecy provisions to the NSW FOI Act was to be considered as part of a review of the legislation after it had been enacted and operational for a few years. However, this has never occurred. 22 At [132] the Appeal Panel also made reference to the following comment by the then Minister in the Second Reading Speech to the Freedom of Information Bill (No. 2), 1988: "The secrecy exemption has caused consternation in some circles, but the principle behind its inclusion in this Bill is sound. Freedom of Information legislation is not an appropriate vehicle for striking down specific secrecy provisions in other legislation. These provisions should not be rendered void by an across-the-board application of the Freedom of Information Act " (Legislative Assembly, Parliamentary Debates ) (10 November 1988, p.3165). 23 The Appeal Panel, said that these comments did not suggest that the Minister intended cl.12 to operate so as to allow an agency to refuse access to a document on the basis that disclosure under the FOI Act would infringe a global confidentiality provision for all documents held by an agency. To give cl.12 such an operation would result in the FOI Act having no application to documents held by agencies whose employees and former employees are bound by a general confidentiality provision in respect of information they receive in the course of their duties. In this regard it is noted that the Minister did not make reference to secrecy provisions generally, but referred to "specific" secrecy provisions. It is also noted that s.9 and Schedule 2 of the FOI Act make provision for a body or office specified in the Schedule to be exempt from the operation of the FOI Act in respect of prescribed functions of that body or office. Included in the list of bodies and offices in Schedule 2 is the Independent Commission Against Corruption, The Police Integrity Commission and the Ombudsman. The statutes under which these particular bodies and office are established each contain a global confidentiality or secrecy provision (see: s.111 Independent Commission Against Corruption Act 1988, s.56 Police Integrity Commission Act 1996 and s.34 Ombudsman Act 1974). Had Parliament intended cl.12 of the FOI Act to apply to all secrecy provisions it would have been unnecessary to include these particular bodies and office in Schedule 2 in the FOI Act. 24 I agree with the purposive approach to interpreting cl.12 as set out by the Appeal Panel in Law Society of New South Wales. That approach requiring a construction of cl.12 that is consistent with the objectives of the FOI Act as set out in s.5 (i.e. the right of members of the public to obtain access to information held by the Government and to ensure that records held by the Government concerning personal affairs of members of the public are not incomplete, incorrect, out of date or misleading). 25 In applying such an approach, at [144], the Appeal Panel said that, having regard to the "nature" of the document for which access has been refused, the following factors were relevant in determining whether disclosure of the document would or could constitute an offence: "(a) the degree of direction given by the legislation to the agency as to how the kind of information under notice is to be managed and divulged; (b) the breadth of any powers given to the agency to release the kind of information under notice; (c) the intrinsic sensitivity of the information; and (d) the likelihood that information of this kind would ever be released to the applicant having regard to the wider circumstances of the relationship between the applicant and the agency, to the extent that they are known." 26 The Appeal Panel went on to say that where the nature of the document is extremely sensitive and unlikely to be released to the FOI applicant (e.g. the document in Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41), then cl.12 will apply. On the other hand, where the nature of the document is not sensitive and the agency is given broad powers under the secrecy provision to release such a document (e.g. Law Society of New South Wales ), then cl.12 will not apply and release of the document is subject to the remaining provisions of the FOI Act. 27 In my opinion the Appeal Panel is correct in placing emphasis on the specific "nature" or content of the document for which access is refused when determining whether the document is exempt under cl.12. That emphasis, in my opinion, arises from the express words used in cl.12, in particular the use of the word "matter" and not information. The same terminology is used in other sections and exemptions in Schedule 1 of the FOI Act. 28 As mentioned above, the objectives of the FOI Act is to give every member of the public a right to access information held by Government or one of its agencies. That right is not absolute (see s.5(2)(b) of FOI Act). The restrictions to access include those referred to in s.25(i)(a) of the FOI Act which enables an agency to refuse access to a document if it is an "exempt document". An "exempt document" is defined in s.6 to mean: "(a) a document referred to in any one or more of the provisions in Schedule 1, or (b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from operation of this Act." (Underlining added.) 29 Schedule 1 makes provision in respect of 21 categories of documents that are exempt. With the exception of the exemption relating to Cabinet documents (cl.1), Executive Council documents (cl.2) and private documents in public library collections (cl.19) the remaining exemptions in Schedule 1 of the FOI Act are predicated on the document for which access is to be refused to contain "matter" the disclosure of which would have a particular affect as prescribed for each exemption. For example, cl.4(1)(b), which falls into that category of document that is exempt because disclosure would affect law enforcement and public safety, provides that a document is an exempt document if it contains " matter ", "the disclosure of which could reasonably be expected to enable the existence or identity of any confidential sources of information, in relation to the enforcement or administration of the law to be ascertained." 30 Another example is cl.6, which provides that: "a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased)." (underlining added) 31 The word "matter" in this context clearly refers to the "specific" information contained in the document for which access is refused. For the exemption to apply there is then a requirement to establish that the "specific" information, if disclosed could reasonably be expected to have the prescribed affect or result. If it does then this "specific" information is described as being "exempt matter": see s.6 FOI Act. The significance of "specific" information being "exempt matter" is that, where a document for which access is sought contains information other than the "exempt matter", there is an obligation on the agency to grant the FOI applicant access to the document with the "exempt matter" deleted where it is practical to do so and the applicant request such a copy: see s.25(4) FOI Act. 32 The other class of documents defined in s.6 to be exempt are those that contain "matter" relating to functions of an agency, which are exempt by virtue of s.9 of the FOI Act. As explained above, s.9 makes provision for those bodies or offices specified or described in Schedule 2 to be exempt from the operation of the FOI Act. That exemption, however, only applies to documents that contain "matter" which relates to the specified functions of the body or office as prescribed in the Schedule. Included in Schedule 2 are the following agencies and their respective functions: Office of the Auditor-General – investigative, audit and report functions; Office of the Director of Public Prosecutions – prosecuting functions; The Independent Commission Against Corruption – corruption prevention, complaint handling, investigative and report functions; Office of the Ombudsman – the complaint handling, investigative and reporting functions of that office; The Child Death Review Team – all functions; The Police Integrity Commission – corruption prevention, complaint handling, investigative and report functions. 33 It has already been noted that Schedule 2 makes no reference to the respondent or the Registrar of Co-operatives. Furthermore, there does not appear to be any reason why the word "matter" should not be given the same meaning as it is given in the other Schedule 1 exemptions, namely it refers to the "specific" information contained in the document, and for the exemption to apply that "specific" information must be shown to relate to one or more of the specified functions of the prescribed exempt agency (i.e. a body or office set out in Schedule 2). 34 Nor is there any reason why the word "matter" in cl.12 should not be given the same meaning, namely the "specific" information contained in the document. If this is correct, as with the other exemptions, on its proper construction, the exemption will only apply if: (a) disclosure of the "specific" information in the document in dispute constitutes an offence regardless of whether that offence contains any exceptions or qualifications (i.e. determination required under cl.12(1)); and (b) disclosure of the "specific" information to the FOI applicant is an offence (i.e. determination required under cl.12(2)). 35 That is, the exemption is focused on or directed towards the "specific" information contained in the document for which exemption is claimed and it is the disclosure of information of this particular nature or kind, which must constitute an offence. Accordingly, the offence provision must be sufficiently particular so that it can be said that it is directed towards prohibiting the disclosure of the "specific" information that is contained in the document for which the exemption is claimed. 36 Although differently worded, a similar approach has been adopted in the construction of s.38 as originally enacted in the Commonwealth Freedom of Information Act 1982 (see News Corporation Ltd (supra) and Federal Commissioner of Taxation v Swiss Aluminium Australia Ltd (1986) 66 ALR 159 at 167) and the Victorian Freedom of Information Act 1982 (see Richardson v Business Licensing Authority [2003] VCAT 1053 at [14] to [23] and re Birrell and Department of Premier and Cabinet (1990) VR 51). In determining whether a secrecy provision came within the terms of the s.38 exemption the courts have examined the direction or focus of the secrecy provision in question, in particular whether that provision was directed towards the prohibition of disclosure of the specific information contained in the document for which exemption was claimed. In News Corporation Ltd the secrecy provision in question was s.47 of the National Companies and Securities Commission Act 1979. That section is similar in terms to s.431 of the Co-operatives Act 1992. In that case the Full Federal Court held that this section was directed at the capacity of the person who had received the information and not the content of the information and therefore it did not come within the terms of s.38. The Court viewed s.47 as a disciplinary provision and not as a provision directed to prohibit the disclosure of particular forms of information. 37 However, in Swiss Aluminium Australia Ltd the majority of the Full Federal Court (Bowen CJ and Jackson J) came to a different conclusion when considering whether the secrecy provision in s.16 of the Income Tax Assessment Act 1936 came within the terms of the s.38 exemption. Although the court followed the earlier decision in News Corporation Ltd it distinguished s.16 of the Income Tax Assessment Act 1936 from s.47 of the National Companies and Securities Commission Act 1979 on the basis that s.16 contained some particularity in that it related to the disclosure of specific information, namely "information respecting the affairs of another person" (see at p.162, 163 and 167). 38 In Swiss Aluminium Australia Ltd the documents for which an exemption had been claimed were not before the court for its consideration. However, this was not the case in News Corporation Ltd. In that case the documents for which exemption was claimed were documents relating to an investigation that the respondent had conducted regarding the affairs of the appellants. It was held that these documents were not exempt under the former s.38 by reason of s.47 of the National Companies and Securities Commission Act 1979. Section 431 Co-Operatives Act (1992) 39 Section 431 of the Co-operatives Act 1992 provides as follows: " 431 Secrecy (1) A person: (a) who is, or at any time was, engaged in the administration of this Act or the former Act, and (b) who, except as provided by this section, records, makes use of or divulges any information obtained in the course of that administration, is guilty of an offence. Maximum penalty: 60 penalty units. (2) Subsection (1) does not apply to: (a) the recording, making use of or divulging of information in the course of the administration of this Act, or (b) the recording or making use of information for the purpose of divulging it as permitted by subsection (3) or (4), or (c) the divulging of information as permitted by subsection (3) or (4). (3) Information may be divulged: (a) for the purposes of criminal proceedings, or (b) for the purposes of any proceedings under this Act or of an inquiry authorised by an Act, or (c) with the consent of the person to whom the information relates, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or (e) in accordance with a reciprocal arrangement under section 441. (4) Information may be divulged to: (a) the Minister, or (b) the Treasurer, or (c) the Commissioner of State Revenue, or (d) the Auditor-General, or (e) the Commissioner of Taxation, a Second Commissioner of Taxation or a Deputy Commissioner of Taxation holding office under a law of the Commonwealth, or (f) the Australian Securities and Investments Commission, or (g) the person who, under a law of another State, or of a Territory, administers a law of the State or Territory that relates to taxation or the imposition of a duty, or (h) any special commission (within the meaning of the Special Commissions of Inquiry Act 1983) if: (i) the Registrar has received a written request in writing for information from the special commission, and (ii) the Minister has given written approval to the Registrar of the communication of that information, and (iii) the Registrar has given to that person written approval of the communication of that information, or (i) a person seeking information under a reciprocal arrangement under section 441, or (j) a police officer exercising functions as such, or (k) a person nominated by a person referred to in paragraphs (a)–(g), or (l) any person, to whom, in the opinion of the Registrar, it is in the public interest that the information be divulged. (5) For the purposes of this section, a person is, or was, engaged in the administration of this Act or the former Act if the person exercises, or at any time exercised, a function as: (a) the Registrar holding office under this Act or the former Act, or (b) an inspector appointed under this Act or the former Act, or (c) an investigator appointed under this Act, or (d) a person appointed or employed for the purposes of this Act or the former Act. (6) In this section: divulge, in relation to information, means: (a) communicate the information verbally, or (b) make available a document containing the information, or (c) make available anything from which, by electronic process or otherwise, the information may be obtained, or (d) communicate the information in any other manner. former Act means the Co-operation Act 1923". 40 The applicant argued that the word "administration" should be narrowly construed to mean those functions, which are conferred on the Registrar under the Co-operatives Act. These it contends do not include a function of complaint handling. While the applicant is correct in that the Registrar is given no express complaint handling function, this does not mean that the functions, which are expressly conferred on the Registrar do not include, as part of that function, the ability to receive and deal with complaint relating thereto. Under s.409 of the Act the Registrar is vested with the role of administering the Act and such other functions that are conferred on the Registrar under the Act. These other functions are primarily those set out in Part 14 of the Act. Under this Part the Registrar is vested with wide powers to supervise compliance by co-operatives with the Act and where there is a failure to comply to take action to protect the interests of co-operatives, their members and creditors and the public. In this regard the Registrar has power to appoint an inspector (s.372), an investigator to conduct a formal inquiry into the affairs of a co-operative (s.386 – such an appointment is a joint appointment together with the Minister) and to call a special meeting of a co-operative (s.402). In my opinion, these express powers would include complaint handling as these will often be the trigger on which the Registrar will exercise his powers under Part 14 of the Act. 41 In my opinion, the documents for which exemption is claimed can all be described as containing information that the respondent directly or indirectly obtained in the course of his administration of the Co-operatives Act 1992. And as I have already indicated the specific information in these documents cannot be described as being intrinsically sensitive in nature as they were in the Saleam (supra) decision. 42 The relevant part of s.431 of the Co-operatives Act 1992 in determining the first stage of whether the exemption in cl.12 of the FOI applies is sub-section (1) as this is the provision creating the offence. That sub-section does not make reference to the "specific" information that is contained in the documents. Nor is it directed towards the nature or content of the documents to which the prohibition applies. Applying the same reasoning that the Full Federal Court in News Corporation Ltd (supra) in respect to s.47 of the former National Companies and Securities Commission Act 1979, in my opinion, sub-s.431(1) is directed towards the capacity of the person who receives information. That is, it is a disciplinary provision applying to all information obtained by the respondent (or any other person as defined in s.431(5)) in his capacity as Registrar under the Act. Conclusion 43 For the reasons set out above, in my opinion, having regard to the specific contents of the documents in dispute and the proper construction of cl.12(1) of the FOI Act, s.431(1) of the Co-operatives Act 1992 is not a relevant offence for the purpose of the first stage in determining whether the documents are exempt under cl.12(1). As it is not relevant to this stage it follows that it has no application to the second stage. 44 I would come to the same conclusion if applying the factors set out by the Appeal Panel in Law Society of NSW. Although s.431 of the Co-operatives Act 1992 provides a degree of direction as to whom information coming within that section can be divulged it does not specifically deal with disclosure of documents containing information from complainants. As I have said content of the documents are not intrinsically sensitive. Furthermore, the exceptions provided under the section are wide and includes a disclosure for the purposes of the administration of the Act and on the grounds of public interest. This in my opinion is indicative of the provisions of the FOI continuing to apply. 45 Accordingly, I find that the respondent has failed to satisfy the Tribunal that the documents for which access has been refused are exempt under cl.12 of the FOI Act. This does not mean that they are not exempt on one or more of the other grounds, which have been relied on. It is appropriate that the matter be set down for hearing in respect to these exemptions. Orders 46 For the reasons set out above, the Tribunal orders: a) the respondent's determination that the documents the subject of this application are exempt under cl.12 of the FOI Act is set aside. b) the Registrar to set the matter down for hearing on the remaining issues at a date that is suitable to the parties. 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.