FEDERAL COURT OF AUSTRALIA

Mullen v Aged Care Quality and Safety Commissioner [2020] FCAFC 78

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the costs of the respondent to be assessed on a lump sum basis if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Since 2015, Mr Mullen has been seeking to obtain various documents held by Commonwealth agencies. The documents relate to care provided to his mother in a residential aged care facility and the investigation of his complaints about that care. He has made requests for the documents under the Freedom of Information Act 1982 (Cth) (FOI Act). Mr Mullen pursued the requests because of his belief that there were inadequate staffing levels at the facility due to a policy of covering absent staff by drawing on staff who were required to provide care to patients with dementia. He maintains that the facility has not been frank in acknowledging the nature of the policy.

2    Speaking generally, under the FOI Act, if a request is made for access to a document of a Commonwealth agency or an official document of a Minister then, subject to the Act, the agency of the Minister must give the person making the request access to the document in accordance with the Act. However, there is no right to obtain a document by request under the FOI Act if there is a statutory secrecy provision that applies that prohibits disclosure.

3    When a request is made under the FOI Act then it may be referred to a relevant Commonwealth agency for response. That is what occurred in this case. Mr Mullen says that he made the requests that are presently relevant to the Department of Social Services. However, those requests were then referred to relevant Commonwealth agencies. Mr Mullen was provided with some documents by those agencies in response to his requests. By pursuing statutory rights of review he was able to obtain access to some further documents. In two decisions concerned with what were then separate agencies, the Information Commissioner (Commissioner) decided that some of the documents covered by his request were exempt from the statutory process and could not be provided to Mr Mullen.

4    Mr Mullen applied for review of the Commissioner's decisions in the Administrative Appeals Tribunal. His review applications were unsuccessful. The Tribunal affirmed the two decisions by the Commissioner. Mr Mullen then brought an appeal in this Court in the exercise of his statutory right to appeal on a question of law as conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). His appeal was dismissed with costs.

5    Mr Mullen now exercises his right to bring a further appeal. In order to succeed he must demonstrate error in the decision by the primary judge. He raises two grounds of appeal that concern the interpretation of the relevant legislation by the primary judge. He also claims that even if his appeal is unsuccessful he should not have to pay the costs of proceedings in this Court because he tried, unsuccessfully, to persuade both the Commissioner and the Tribunal to refer the relevant questions of statutory construction to this Court and that he has been acting in the public interest in seeking to have the questions determined.

6    For the following reasons, no error has been demonstrated in the reasoning of the primary judge and Mr Mullen's appeal must be dismissed with costs.

The appeal grounds of Mr Mullen

7    As we have noted, the FOI Act confers a statutory right of access to documents upon request. The provisions apply to documents held by Commonwealth agencies and official documents held by Ministers: s 11, s 11A and s 22. However, the right does not extend to an 'exempt document'. The documents to which Mr Mullen was refused access by the relevant agencies, despite his request, were said to be exempt documents. That claim was upheld by the Tribunal. On appeal to this Court, the primary judge rejected arguments advanced by Mr Mullen as to why the relevant legislation should be construed in a manner that would mean that the documents sought by him were not exempt documents. It is those claims that are the subject of the grounds raised in the present appeal.

8    Relevantly for present purposes, a document is an exempt document under the FOI Act if its disclosure 'is prohibited under a provision of an enactment' and 'that provision is specified in Schedule 3': s 38(1). The list in Schedule 3 includes 'subsection 86-2(1) and sections 86-5, 86-6 and 86-7' of the Aged Care Act 1997 (Cth) (Listed Provisions). It does not include s 86-9 of that Act.

9    The issues as joined concern whether the Listed Provisions prohibit the production of documents of the kind sought by Mr Mullen. He makes two claims as to why there is no such prohibition.

10    First, he says that whereas the Listed Provisions concern 'protected information' and the circumstances in which it is an offence to disclose that information, s 86-9 of the Aged Care Act permits the production of information as non-protected general information. He says that his request was for documents of a kind that were covered by s 86-9. For that reason he says that the Tribunal was wrong in treating the documents that he sought as being exempt documents. Rather, he says that it should have treated them as documents that could be required to be disclosed because of the terms of s 86-9 (ground 1).

11    Second, he says that when the Commissioner undertook the review, the powers conferred by s 55K(2) of the FOI Act could be exercised. Mr Mullen says that under s 55K(2), the Commissioner could exercise the power of the agency holding the documents under the Aged Care Act to release the documents (even if they were otherwise prohibited from production). He says that because his initial request for production was made to the Department, any power of the Secretary of the Department could be exercised by the Commissioner (and the Tribunal on review) and that included the power to make documents publicly available under s 86-9. On that basis, he submits that when the matter came before the Tribunal, it could exercise that power and it was in error in approaching the review on the basis that it had no such power (ground 2).

12    Mr Mullen claims that the primary judge was in error in not accepting that his contentions raised by grounds 1 and 2 were correct.

13    As has been mentioned, Mr Mullen also claims that a costs order should not have been made against him even if he is otherwise unsuccessful in his appeal.

Ground 1: The proper construction of s 86-9 of the Aged Care Act

14    There are express provisions to the effect that neither the Commissioner nor the Tribunal can permit access to exempt documents: s 55L and s 58. As we have noted, the significance of ground 1 is that it is the foundation for a claim that s 86-9 of the Aged Care Act means that documents of the kind sought by Mr Mullen were not exempt and it was an error for the Tribunal (and the primary judge) to conclude that they were exempt.

15    Of the Listed Provisions, the relevant secrecy provision for present purposes is s 86-2(1) of the Aged Care Act. It states:

A person commits an offence if:

(a)    the person makes a record of, discloses or otherwise uses information; and

(b)    the information is protected information; and

(c)    the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act or the Aged Care (Transitional Provisions) Act 1997.

16    It follows that if the disclosure of information in a document would constitute an offence against s 86-2(1) of the Aged Care Act because it was a disclosure of 'protected information' then the document is an exempt document for the purposes of the FOI Act.

17    Relevantly for present purposes, s 86-1 defines the term 'protected information' to be information acquired for the purposes of the Aged Care Act that 'is personal information' or 'relates to the affairs of an approved provider'. There is no challenge to the findings by the primary judge to the effect that the documents requested by Mr Mullen came within those terms.

18    The offence created by s 86-2(1) operates subject to the exceptions expressed in s 86-2(2) which states that the offence provision as to disclosure of protected information does not apply to:

(a)    conduct that is carried out in the performance of a function or duty under this Act or the Aged Care (Transitional Provisions) Act 1997 or the exercise of a power under, or in relation to, this Act or the Aged Care (Transitional Provisions) Act 1997; or

(b)    the disclosure of information only to the person to whom it relates; or

(c)    conduct carried out by an approved provider; or

(d)    conduct that is authorised by the person to whom the information relates; or

(e)    conduct that is otherwise authorised under this or any other Act.

19    In the above context, it is to be noted that s 86-9 confers a power upon the Secretary to make publicly available 'information about an aged care service' of the kind listed in the provision. There is a long list of the types of information that the Secretary may make publicly available. Disclosure in the exercise of that power would fall within the exclusion expressed in s 86-2(2)(a). Therefore, if the power under s 86-9 had been exercised in respect of documents that were the subject of request by Mr Mullen then the information made available to the public would not be exempt information. However, unless and until the power conferred by s 86-9 was exercised, the disclosure of any protected information of the kind described in s 86-9 has not been authorised. It is either information which is not covered by the prohibitions in the Listed Provisions irrespective of whether the Secretary's power under s 86-9 is exercised (in which case it can be made publicly available) or it requires the exercise of that power. The fact that the information is of a kind listed in s 86-9 does not, of itself, mean that it is exempt information.

20    Significantly, s 86-9 is dealing with the circumstances in which the listed information can be made publicly available. It is not dealing with a request for access to information. It is dealing with a decision made by the Secretary that it is appropriate, irrespective of any request, for particular information about an aged care service to be made public. Once that information is released, the use to which it is put will not be restricted to any particular purpose.

21    Importantly, there is a separate power for the Secretary to disclose protected information: s 86-3. Section 86-3(1)(a) confers a power for the Secretary to disclose protected information 'to such people and for such purposes as the Secretary determines' where the Secretary certifies in writing that such disclosure is necessary in the public interest. There are many other circumstances in which power to disclose protected information is conferred. There is a further offence created if the person to whom disclosure is given then discloses the information for a purpose that is not the purpose for which the information was disclosed: s 86-6. It forms part of the Listed Provisions.

22    Plainly, the existence of these provisions count substantially against an intention by s 86-9 to describe a category of information that may be disclosed on request, even though it would otherwise be protected information. Any such provision would be inconsistent with the detailed nature of the Listed Provisions which define the extent of exempt documents for present purposes and confine the use to which they can be put if they are disclosed.

23    Before the Tribunal and the primary judge, but not on appeal, there was an issue as to whether the documents requested by Mr Mullen came within the definition of protected information. As that issue is not pursued, this is not a case where the information is not covered by the prohibitions in the Listed Provisions irrespective of the exercise of power under s 86-9. Mr Mullen did say that he was not specifying which of the exceptions in s 86-2(2) was relevant. He said that was a matter for the respondent to demonstrate. That submission cannot be accepted. It was for Mr Mullen to advance the basis upon which there was alleged to be error in the approach adopted by the primary judge as to whether there was an error of law by the Tribunal.

24    In any event, on the material presented on the appeal, the only possible exception was the exercise of a power under the Act (that would fall with the language used in s 86-2(2)(a)). If that power has not been exercised then the information is protected information and documents containing that information are exempt documents. Put another way, the existence of the power conferred by s 86-9 does not mean that an offence is not committed by the disclosure of information that might be the subject of an exercise of power under s 86-9, but has not been.

25    There are many reasons why the Secretary may form the view that the power to make the information publicly available should not be exercised. Unless and until the power has been exercised in respect of protected information of the kind listed in s 86-9, the information remains exempt information for the purposes of the FOI Act.

26    The rationale for s 86-9 conferring a power to make information publicly available rather than simply adding all the information listed in s 86-9 within the exclusions in s 86-2(2) is plain. Instead of the information listed in s 86-9 simply being excluded from the prohibition, such information can only be made publicly available if and to the extent that the Secretary forms the view that such disclosure is appropriate and even then does not extend to most personal information. If the intention had been to exclude all the information listed in s 86-9 from the information that it would be an offence to disclose then the list would have been included in s 86-2(2). It was not. Instead, its disclosure was made subject to the exercise of a power by the Secretary.

27    Mr Mullen relies upon the terms of the explanatory memorandum for the Bill which introduced s 86, namely the Aged Care Bill 1997 (Cth) to support his contention. It describes the terms of the then proposed s 86-1 in the following way:

Clause 86-1    Meaning of protected information

The provisions in this Division relate only to protected information. This clause sets out a definition of 'protected information' as information that has been acquired under or for the purposes of the Act, and either;

•    is personal information; or

•    relates to the affairs of an approved provider, or of an applicant under Part 2.1 or Chapter 5. The purpose of this part of the provision is to ensure that information such as commercial-in-confidence information is protected under this Part.

Personal information is defined in the Dictionary as 'information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'.

Any information that is not protected information can be used as necessary. It is not protected in any way under this Act.

(emphasis omitted)

28    Mr Mullen submits that the purpose of s 86-9 is to list the information that is not protected information. However, that is not the form of s 86-9. Rather, it assumes that there is some reason why the information cannot be made publicly available. It is clear from the terms of s 86-9(2) that one of those reasons is the prohibition in s 86-2 upon disclosure of protected information. However, there is also the prospect of uncertainty as to the extent to which it is appropriate for the Secretary to take active steps to release into the public domain any information, including protected information. The terms of s 86-9 are explained by an intention to make clear that the Secretary has authority to do so and that the authority extends to all information that might be garnered for that purpose, irrespective of whether it is protected information.

29    So, as the primary judge noted, the explanatory memorandum went on to make the following statement concerning then proposed s 86-9:

Clause 86-9    Information about an aged care service

This clause allows the Secretary to release general information about a service or support service provided that personal information is not included. The intention of this clause is to ensure that residents and prospective residents have access to information about services to enable them to make informed decisions about their care. The type of information that can be released under this clause includes:

•    the name, address, and telephone number of a service,

•    the number of places included in the service,

•    the services provided by the service,

•    the facilities and activities available to care recipients receiving care through the service; and

•    information about the approved provider's performance in relation to responsibilities and standards under the Act.

Additionally, this clause allows the Secretary to give information about the outcome of a complaint relating to an aged care service to the complainant.

30    The terms of the earlier passage from the explanatory memorandum concerned with s 86-1 can be explained by the fact that they are describing the meaning and function of the definition of protected information. All that the final sentence in the quoted passage from the explanatory memorandum is making clear is that there is no need in the Act for any provision about information that is not protected information under the Aged Care Act. There being no prohibition upon disclosure that extends to 'information that is not protected information', it may be disclosed. However, if it is to be actively disclosed as part of general information to be provided to the public then s 86-9 authorises that step being taken with the approval of the Secretary.

31    However, the existence of s 86-9 does not undo the prohibition on the disclosure of protected information. That is evident from the terms of s 86-9(2). As we have explained, it is also evident from the terms of the rest of the Listed Provisions.

32    Therefore, no error has been demonstrated in the conclusion by the primary judge concerning the proper construction of s 86-9.

Ground 2: The power under s 55K of the FOI Act

33    Section 55K(2) provides that for the purpose of implementing a decision made by the Commissioner on review of a decision concerning a freedom of information request, the Commissioner 'may perform the functions, and exercise the powers' of the person who made the reviewable decision.

34    Section 55L then provides that the Commissioner does not have power to decide that access to an exempt document is to be given, so far as it contains exempt matter.

35    The powers that Mr Mullen says should have been exercised by the Commissioner are powers under s 86-9 and under s 86-3.

36    As to s 86-9, we have already referred to its terms. It confers a power on the Secretary to 'make publicly available' certain types of information. We have also referred to s 86-3. It too confers a discretionary power on the Secretary. It allows protected information to be disclosed to particular people for particular purposes.

37    The Secretary referred to in s 86-9 and s 86-3 is the Secretary of the Department of the Minister responsible for the administration of the Aged Care Act. The respondent to the proceedings in this Court is not the Secretary. It is the Aged Care Quality and Safety Commissioner. The Tribunal proceedings were in respect of decisions made by the Information Commissioner concerning requests under the FOI Act that were responded to by the Australian Aged Care Quality Agency and by the Aged Care Complaints Commissioner. It is common ground that the respondent is the single statutory successor to those two agencies. It was not for those agencies to be able to exercise the power conferred on the Secretary. Therefore, the power in s 55K(2) did not apply. It was confined to powers of the person who made the reviewable decision. That is because, regardless of whether an original request was made to the Department, the decisions the Commissioner reviewed were decisions of the respondent agencies, not decisions of the Secretary of the Department.

38    For the Commissioner it was contended that the power conferred by s 55K(2) was confined to the implementation of a decision and that the powers conferred on the Secretary could not be exercised for that purpose in any event. It is not necessary to express any view about the correctness of that submission.

39    It follows that ground 2 has not been made out.

Other matters

40    In the course of the hearing of the appeal, Mr Mullen suggested that material on which he sought to rely demonstrated bad faith in the way his requests had been dealt with in the past, such that the construction of the statutes sought to be advanced by counsel for the Commissioner should be discounted. This appeal is about statutory construction. The statute speaks for itself and binds all those affected by it. The correct statutory construction is to be reached regardless of the motives of those involved, be they good, bad or indifferent. In saying that, we have no reason to conclude that there has been any improper motive involved on the part of the Commissioner or that there has been any departure from the requirements of the statutory office.

41    Mr Mullen also invited the Court to reach a view about matters that he described in his written submissions as '[i]ssues in dispute that are not subject to this appeal'. They included whether documents produced as part of one statutory process matched other documents and whether there had been a transfer of a request for access to documents from the Ombudsman. Neither of these matters bear upon the questions of law to be determined in the appeal.

42    Finally, Mr Mullen took the Court to documents that had given rise to his original complaint about staffing and his view that there was some form of improper conduct in the way the facility had responded to the complaint. Mr Mullen has had an opportunity to raise his complaint through the statutory process. The present appeal is not concerned with that complaint. It is confined to whether documents should have been produced by the particular statutory agencies the subject of the review by the Commissioner in response to his requests under the FOI Act. It would be entirely unfair to other parties for this Court to express any view about the matters the subject of the complaint about staffing at the facility in circumstances where the handling of the complaint is not in issue on the appeal and other interested parties have had no opportunity to present any material or submissions on those matters.

Costs

43    These proceedings concern matters that Mr Mullen seeks to raise concerning whether documents are exempt from production under the FOI Act by reason of the provisions of the Aged Care Act. It might be said that the issues have the potential for broader application. However, that is true of many proceedings in which review is sought of administrative decisions by agencies of the Executive.

44    The circumstances in which it may be appropriate, in cases where issues of public interest are raised, to depart from the approach that costs follow the event in the absence of some reason for a different approach were considered in Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35 at [126]-[132] (Kenny and Robertson JJ). This is not an instance where it might be said that the sole or principal purpose of the proceedings was the advancement of the public interest. Mr Mullen was acting out of genuine concern for the treatment of his mother and the particular circumstances of her case. We are not persuaded that there was any proper basis upon which the primary judge, in the proper exercise of discretion, ought to have departed from the approach that the unsuccessful party should bear the costs before the primary judge. Likewise, costs should follow the event on the appeal.

Conclusion

45    It follows that the appeal must be dismissed with costs. The Minister asks for an order that the costs be assessed on a lump sum basis by a Registrar. Having regard to the Court's practice in encouraging lump sum assessment where appropriate that order should be made.

Associate:

Dated:    13 May 2020