Appeal Panel CITATION: N (No. 4) -v- Commissioner of Police, New South Wales Police Service (GD) [2002] NSWADTAP 10 APPELLANT PARTIES: N RESPONDENT Commissioner of Police, New South Wales Poplice Service FILE NUMBER: 019064 HEARING DATES: 04/03/2002 SUBMISSIONS CLOSED: 03/04/2002 DATE OF DECISION: 04/04/2002 N -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 197 DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Britton A - Judicial Member; Bolt M - Member CATCHWORDS: relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 013086 DATE OF DECISION UNDER APPEAL: 11/22/2001 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Mangoplah Pastoral Co P/L v Great Southern Energy [1999] NSWADT 93 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 CASES CITED: Sean Investments Pty Ltd v MacKe a llar (1981) 38 ALR 363 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 Ashby v Minister of Immigration [1981] NZLR 222 Associated Provisincial Picture Houses Ltd v Wednesbury Corporation [1948] I KB 223 APPELLANT REPRESENTATION: In person RESPONDENT M Tzannes, barrister ORDERS: The decision of the Tribunal is affirmed. Introduction 1 The appellant's identity is the subject of a suppression order. He will be referred to in these reasons as "the appellant". This is an appeal from a decision of the Tribunal made on 22 November 2001 affirming a decision of the Commissioner of Police, NSW Police Service (the Commissioner). The Commissioner decided to refuse to give the appellant access to three documents held by the Commissioner. The reason for the refusal was that, in the Commissioner's submission, the documents were exempt documents pursuant to Clause 12 to Schedule 1 of the Freedom of Information Act 1989 (FOI Act). That Clause provides that documents which are the subject of certain secrecy provisions in other legislation are exempt under the FOI Act. 2 The documents in dispute were given to the Commissioner by the Police Integrity Commission (PIC). Section 56 of the PIC Act makes it an offence for the Commissioner, or any other officer of the Police Service, to divulge or communicate to any person the information in those documents. 3 The parties agreed that the Tribunal should deal with the matter pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). This meant that the matter was determined "on the papers" without an oral hearing, following the receipt of written submissions from both parties. Jurisdiction 4 The power of the Appeal Panel to hear this matter is found in s 113 of the ADT Act. Section 113 states that: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (3) An appeal must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow. (4) An appeal is to be made in the manner prescribed by the rules of the Tribunal. 5 The powers of the Appeal Panel if the appeal is restricted to a question of law are set out in s 114: (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. Tribunal's decision 6 The issue before the Tribunal was whether the respondent had made the correct and preferable decision under the FOI Act in refusing to disclose three documents held by the Commissioner which apparently relate to the appellant. Neither the Tribunal nor the Appeal Panel has seen the documents. The Tribunal reviewed section 56 of the PIC Act and Clause 12 to Schedule 1, of the FOI Act. Clause 12 states that: (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. 7 Section 56 of the PIC Act states that: (1) This section applies to: (a) a person who is or was an officer of the Commission, and (b) a person who is or was an officer of the Inspector, and (c) a person who is or was a legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such a legal practitioner in the exercise of the legal practitioner's functions as counsel to the Commission, and (d) a person or body referred to in section 15 (6), 18 (4), 77 (5) or 83(6), and (e) an authorised person referred to in section 18A. (2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act: (a) make a record of any information, or (b) divulge or communicate to any person any information, being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (3) A person to whom this section applies cannot be required: (a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act, except for the purposes of a prosecution, disciplinary proceedings or proceedings under Division 1A or 1C of Part 9 of the Police Service Act 1990, arising out of an investigation conducted by the Commission in the exercise of its functions. (4) Despite this section, a person to whom this section applies may divulge any such information: (a) for the purposes of and in accordance with this Act, or (b) for the purposes of: (i) a prosecution, or (ii) disciplinary proceedings, or (iii) the making of an order under section 173 or 181D of the Police Service Act 1990, or (iv) proceedings under Division 1A or 1C of Part 9 of that Act, arising out of an investigation conducted by the Commission in the exercise of its functions, or (c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or (d) to any prescribed authority or person. (5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act. (6) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. produce includes permit access to. 8 Both parties agreed, and the Tribunal found, that the provisions set out above apply to the documents in dispute, making them exempt under the FOI Act. The Tribunal noted at paragraph 8 that: The applicant's submission accepts that the exemption is applicable to the documents in issue. He submits, however, that the Tribunal should nonetheless order release in the exercise of a "public interest" override discretion. 9 The issues before the Tribunal were as follows: · does the Tribunal have an overriding discretion to disclose the documents, despite the fact that they are exempt documents? · If so, should that discretion be exercised in favour of the applicant (now the appellant) in the circumstances of this case? 10 At paragraph 12 of its decision, the Tribunal set out the nature of the so-called override discretion as first enunciated in Mangoplah Pastoral Co P/L v Great Southern Energy [1999] NSWADT 93 at [85]: . . . absent any special limitations on the Tribunal's review function in applications under the FOI Act, it has the function by reason of section 63 of the ADT Act -- indeed the duty -- when reviewing a determination under section 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. 11 The Tribunal summarised the three grounds on which the respondent opposed the appellant's application that the documents should be released. These grounds were: (1) the Tribunal has erred in law in the past in finding that it has the power to exercise such a discretion where an exemption is applicable; (2) that if that submission is not accepted, the Tribunal should not exercise its discretion in cases where an agency is in possession of documents supplied to it by the PIC and affected by section 56 of the PIC Act; and (3) if the last submission is not accepted as too wide, that in the circumstances this case, the documents in issue not be released as the public interest in non-disclosure should be preferred. 12 In relation to the first ground, the Tribunal proceeded on the assumption that it did have an override discretion as outlined in the decision in Mangoplah. At paragraph 14 of its decision the Tribunal stated that: The issue of whether the Tribunal correctly stated the law in Mangoplah has yet to be finally decided at the Appeal Panel level. I am not inclined on this occasion to explore that issue in detail, as I am satisfied that if there is a public interest discretion available to the Tribunal, it should not be exercised in this case on the basis of the second submission of the respondent. 13 On the assumption that the Tribunal does have an overriding discretion to release exempt documents, the Tribunal went on, at paragraph 16, to deal with the second ground raised by the respondent. The Tribunal noted that, because PIC is an exempt agency under s 9 and Schedule 2 to the FOI Act, the Tribunal would have been without jurisdiction in relation to any application for access to the documents by the appellant directly to PIC. The Tribunal went on to say, at paragraph 16, that: It would not, I consider, be appropriate for the Tribunal to apply any override discretion that it may have to information totally exempt at its original location, where it passes to a recipient agency and thereby becomes governed by the FOI Act and where the recipient agency is opposed to release. Such an approach ensures that Parliament's fundamental policy goal is upheld, i.e. that information held by the PIC in relation to its core functions if left unaffected by the FOI Act. Grounds of appeal 14 In his Notice of Appeal the appellant set out four points in relation to the correct interpretation of section 56 of the PIC Act. The difficulty with this ground of appeal is that the appellant did not submit to the Tribunal at first instance that he should be given access to the documents in issue despite section 56 of the PIC Act and Clause 12 to Schedule 1 of the FOI Act. Despite written submissions to the contrary, the appellant conceded at the hearing that the construction of section 56 of the PIC Act and Clause 12 to Schedule 1 of the FOI Act were not in issue before the Appeal Panel. Consequently these grounds of appeal cannot succeed. 15 At the hearing the appellant made oral submissions and filed a document in reply to the respondent's reply to the Notice of Appeal. By virtue of both his written and oral submissions, we have gleaned that the substance of the appellant's submission is that the Tribunal failed to take into account relevant considerations when declining to exercise its override discretion. On the basis of the Tribunal's reasons, it appears that it took into account the following factors when coming to its decision not to give the appellant access to the disputed documents: · the documents are governed by section 56 of the PIC Act and Clause 12 of Schedule 1 to the FOI Act; · the documents would have been totally exempt in the hands of PIC because PIC is an exempt agency; · the agency is opposed to the release of the documents; and · one of Parliament's fundamental policy goals is that information held by the PIC is relation to its core functions is unaffected by the FOI Act. 16 The appellant submitted that the Tribunal did not take into account other relevant public interest considerations in exercising its discretion. Some of these considerations are set out at paragraph 14 of the appellant's original submissions to the Tribunal dated 10 September 2001. They include the public interest in a person being informed of the nature of allegations made against him or her to an agency and being given the opportunity to respond to those allegations. Respondent's submissions 17 The respondent's fundamental submission was that the appellant had not identified an error of law in his Notice of Appeal. Alternatively, the respondent submitted that the Tribunal did not make an error of law in accepting its second submission outlined above at paragraph 11. The respondent submitted that either the Tribunal was correct in confining itself to a consideration of whether the documents were governed by section 56 and Clause 12 to Schedule 1 of the FOI Act, or the Tribunal did take into account all relevant considerations in exercising its discretion. Decision and reasons 18 At paragraph 16 of the decision the Tribunal stated that where the documents in issue come within the terms of section 56 of the PIC Act, are passed on to a recipient agency and that agency opposes disclosure, it is not appropriate for the Tribunal to exercise its discretion in favour of the applicant. The Tribunal noted that this approach is in accord with Parliament's policy goal of ensuring that information held by the PIC in relation to its core functions is left unaffected by the FOI Act. 19 At paragraph [12] of the decision the Tribunal acknowledged that: "It is a fundamental objective of the FOI Act that the rights of the public to obtain access to information held by the Government are to be extended 'as far as possible': FOI Act s 5(1)." However we accept the applicant's submission that the Tribunal did not, in its reasons, set out the particular circumstances of his case or any public policy considerations favouring disclosure. 20 The question for the Appeal Panel is, assuming that the Tribunal has an overriding discretion, as outlined in Mangoplah, whether its approach to the exercise of that discretion contained any legal error. 21 It is a fundamental principle of law that in exercising discretionary power a decision maker must take into account relevant considerations and must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25. Justice Mason summarised the important principles at p 39: The ground of failure to take into account a relevant considerations can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKe a llar (1981) 38 ALR 363 at p 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, at pp 183, 196-197; Ashby v Minister of Immigration [1981] NZLR 222 at pp 225, 230, 232-233. The statement of the Lord Greene MR in Associated Provisincial Picture Houses Ltd v Wednesbury Corporation [1948] I KB 223, at p 228 that a decision-maker must take into account those matters which he "ought to have regard to " should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider.' What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act . . . (W)here the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined in terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. 22 This passage suggests that the Appeal Panel should ask itself the following questions in determining this matter: 1. For the purpose of exercising a discretion under section 24 and/or 25 of the FOI Act, in relation to documents which are exempt by virtue of Clause 12 to Schedule 1, what considerations, if any, is the Tribunal bound to take into account? 23 In answering this question a number of other questions are relevant, namely a) does the legislation expressly state the considerations to be taken into account? b) if not, taking into account the subject-matter, scope and purpose of the FOI Act, what, if any, considerations is the Tribunal bound to take into account? 24 Turning to the first question, the FOI Act does not expressly state the considerations to be taken into account in exercising any overriding discretion to disclose documents despite the fact that they are otherwise exempt. So far as is relevant to these proceedings, section 24 states that: "After considering an application for access to a document, an agency shall determine: (a) whether access to the document is to be given (whether immediately or subject to deferral) or refused . . . " Section 25 states that: "An agency may refuse access to a document if it is an exempt document . . ." As no considerations are stated in the FOI Act, we must look to the subject-matter, scope and purpose of the FOI Act to determine what, if any, considerations an agency, or in this case the Tribunal, is bound to take into account when exercising its override discretion in circumstances where the documents are exempt pursuant to Clause 12 of Schedule 1. In Mangoplah the Tribunal stated at paragraph 90 that: In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 25 This passage suggests, and we find, that generally speaking, when exercising the override discretion, the Tribunal is bound to take into account public policy considerations which arise from both the nature of the particular exemption and the circumstances of the case. However, in our view, there are cases, such as the present case, where the nature of the exemption itself and the public policy considerations associated with that exemption, disclose such a compelling case against exercising an overriding discretion in the applicant's favour that the Tribunal is not bound to take into account the public policy considerations supporting disclosure. 26 The particular exemption in this case is the secrecy exemption contained in Clause 12 to Schedule 1 of the FOI Act. Both parties agreed and the Tribunal found that the respondent would be committing an offence pursuant to s 56 of the PIC Act if an officer of the respondent disclosed the disputed documents to the appellant. In their original submissions to the Tribunal the respondent stated at paragraph 18 that "in that the present case, the information was received by the respondent from the Royal Commission and it was passed to them under the terms of section 56 (4). This is admitted by the applicant. It is submitted that if the Tribunal were to make a decision to release material in issue, then it would permit and be part of the commission of an offence." Section 65 of the FOI Act states that: If access to a document is given pursuant to a determination under this Act and if the person by whom the determination is made believes in good faith, when making the determination, that this Act permits or requires the determination to be made, neither the person by whom the determination is made nor any other person concerned in giving access to the document is guilty of an offence merely because of the making of the determination or the giving of access. 27 Although neither party mentioned this provision, it is arguable that its effect is that a decision by the Tribunal to release the documents, if made in good faith, would not constitute an offence. 28 Despite s 65, it is clear from a passage from the Second Reading Speech to the Freedom of Information Bill (No 2) 1988 that the government intended to oust the operation of the FOI Act in relation to the kinds of documents which are the subject of these proceedings. The then Minister, Mr Moore, said that: 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. (Parliamentary Debates, Legislative Assembly, 10 November 1988 at p 3165.) 29 In the context of documents which are exempt by virtue of Clause 12, the general public policy objectives of the FOI Act, for example to promote open, accountable and democratic government, have been overridden by parliament. Clause 12 creates a class of exempt document with no provision for weighing up the public interest considerations for or against disclosure. The fact that it is an offence to disclose such documents and that parliament has decided that such documents are exempt under the FOI Act, means that the only considerations which the Tribunal is bound to take into account when exercising its overriding discretion is the public policy considerations relevant to the nature of the exemption itself. The relevant public policy considerations favouring disclosure have already been taken into account in detail by Parliament when enacting s 56 of the PIC Act and Clause 12 to Schedule 1 of the FOI Act. In these circumstances, we are satisfied that the Tribunal was not bound to take into account the particular circumstances of the applicant's case or the public policy considerations favouring disclosure when determining whether or not to exercise any override discretion. Consequently, the Tribunal made no error of law in its reasons for decision. Orders Pursuant to section 114 of the ADT Act, the Tribunal's decision of the 22nd November 2001 is affirmed. 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.