FEDERAL COURT OF AUSTRALIA

Walker v Secretary, Department of Health and Ageing [2016] FCA 233

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 20 January 2016 be dismissed.

2.    The appeal be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant (Dr Walker) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against a decision of a Deputy President of the Administrative Appeals Tribunal (AAT) (Walker v The Secretary, Department of Health (Freedom of Information) [2015] AATA 606). The decision concerned a request by Dr Walker for access to certain information under the Freedom of Information Act 1982 (Cth) (FOI Act). His request, which was dated 8 February 2012, was for “the names and contact details of all those General Practitioners (GPs) who are designated under Medicare as “Non-Vocationally Registered”. (i.e; they are known as “Non-VR GPs”)”.

2    The Deputy President dismissed Dr Walker’s application for review of a decision of the Acting Freedom of Information Commissioner, which had been made on 30 September 2014. The Deputy President held that if a document containing the information sought by Dr Walker was created under s 17 of the FOI Act, the document would be an exempt document because of the combined operation of s 38(1) of the FOI Act and s 130(1) of the Health Insurance Act 1973 (Cth) (HI Act).

3    For the reasons which follow, the appeal should be dismissed.

Summary of background facts

4    As noted above, Dr Walker’s FOI Act request was dated 8 February 2012. He was advised shortly thereafter that his request had been transferred to the Department of Health and Ageing (the Department). On 23 May 2012, he was informed that his request for access was refused under s 24A of the FOI Act because the documents he sought did not exist and could not be found. Dr Walker sought an internal review of that decision. On 28 September 2012, the internal review officer informed Dr Walker that the earlier decision was affirmed on the basis that there was no document which contained the information he sought.

5    On 21 November 2012, Dr Walker sought a review of that decision by the Australian Information Commissioner. There was then a long delay until, on 30 September 2014, Dr Walker was notified of the Acting Freedom of Information Commissioner’s decision under s 55K of the FOI Act that access to the document was refused on the basis that, as then submitted by the Department, it was exempt under s 38 of the FOI Act because it was a protected document for the purposes of s 135A(1) of the National Health Act 1953 (Cth).

6    By an application dated 27 October 2014, Dr Walker applied to the AAT for a review of the Acting Freedom of Information Commissioner’s decision.

Relevant legislative provisions

7    The following provisions in the FOI Act are of primary relevance (the legislative provisions referred to in this judgment are those which were in force as at 8 February 2012, however, for convenience they will be referred to in the present tense).

8    The general objects of the FOI Act are set out in s 3:

3    Objects – general

(1)    The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)    requiring agencies to publish the information; and

(b)    providing for a right of access to documents.

(2)    The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a)    increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;

(b)    increasing scrutiny, discussion, comment and review of the Government’s activities.

(3)    The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4)    The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

9    Section 11 is an important provision. It creates a legally enforceable right of every person to obtain access in accordance with the FOI Act. It provides:

11    Right of access

(1)    Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)    a document of an agency, other than an exempt document; or

(b)    an official document of a Minister, other than an exempt document.

(2)    Subject to this Act, a person’s right of access is not affected by:

(a)    any reasons the person gives for seeking access; or

(b)    the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

10    Section 17 provides for circumstances where information sought by an applicant is not available in a written document but could be made available in that form by using equipment such as a computer. It provides:

17    Requests involving use of computers etc.

(1)    Where:

(a)    a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency;

(b)    it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and

(ba)    it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and

(c)    the agency could produce a written document containing the information in discrete form by:

(i)    the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii)    the making of a transcript from a sound recording held in the agency;

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.

(2)    An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

11    Part IV deals with exempt documents. Section 38, which is included in Pt IV, deals with what are commonly known as “secrecy provisions”. It relevantly provides:

38    Documents to which secrecy provisions of enactments apply

(1)    Subject to subsection (1A), a document is an exempt document if:

(a)    disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b)    either:

(i)    that provision is specified in Schedule 3; or

(ii)    this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.

(1A)    A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

(2)    Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.

(3)    This section applies in relation to a document so far as it contains personal information about a person if:

(a)    the person requests access to the document; and

(b)    disclosure of the document, or information contained in the document, is prohibited under section 503A of the Migration Act 1958 as affected by section 503D of that Act.

(4)    In this section:

enactment includes a Norfolk Island enactment.

12    Schedule 3 of the FOI Act contains three of many provisions which are specified for the purposes of s 38, i.e. ss 130(1), (4) and (9) of the HI Act. Section 130(1) is central in the appeal. It is set out in [18] below, together with other sub-sections in that provision, including ss 130(4) and (9).

13    Section 58 of the FOI Act is also relevant, particularly s 58(2):

58    Powers of Tribunal

(1)    Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

(2)    Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.

(6)    The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.

14    It is desirable to now identify the primary relevant provisions of the HI Act. The first thing to note about that legislation is the breadth and complexity of its subject matter, as is reflected in its long title:

An Act providing for Payments by way of Medical Benefits and Payments for Hospital Services and for other purposes.

As might be expected of Commonwealth legislation dealing with such a complex subject and the expenditure of considerable amounts of Commonwealth money, the HI Act contains numerous provisions concerning persons who are affected by the Medicare Benefits Scheme, including participating medical practitioners (such as general practitioners, midwives, nurses, optometrists, physiotherapists, and pathologists), as well as patients. The legislation also contains numerous provisions relating to the supply, storage and disclosure of various information which is relevant to the operation of the Medicare Benefits Scheme, the purposes for which such information is acquired and the circumstances in which the information may lawfully be recorded and/or disclosed.

15    Section 3 defines “general practitioner” to include “a person registered under s 3F as a vocationally registered general practitioner”.

16    Section 3F of the HI Act is an important provision in this proceeding. It obliges the Chief Executive Medicare to maintain a Vocational Register of General Practitioners (the Register). It also deals with the provision of relevant information to the Chief Executive Medicare for the purpose of establishing and maintaining the Register and the circumstances in which the Chief Executive Medicare may provide information relating to the Register to specified persons. Section 3F provides:

3F    Vocationally registered general practitioners

(1)    The purpose of this section is to provide for the registration of certain medical practitioners as vocationally registered general practitioners.

Note:    Some items in the general medical services table apply only to services rendered by medical practitioners who are registered under this section.

(2)    The Chief Executive Medicare is to establish and maintain a Vocational Register of General Practitioners.

(3)    The Register may be maintained in any form, including the form of a computer record.

(4)    A medical practitioner may apply to the Chief Executive Medicare for registration under this section.

(5)    The application must be made in a manner approved by the Minister.

(6)    After receiving an application, the Medicare Australia CEO must, within the required period under subsection (6A), enter the applicant’s name in the Register if:

(a)    the Royal Australian College of General Practitioners; or

(b)    a body specified in the regulations;

gives the Chief Executive Medicare written notice that the applicant is, in accordance with the regulations, eligible for registration under this section.

(6A)    The required period for the purposes of subsection (6) is:

(a)    the period of 14 days after the notice under subsection (6) was received by the Medicare Australia CEO; or

(b)    if the application was made after the notice was received—the period of 14 days after the application was received by the Medicare Australia CEO.

(7)    The Chief Executive Medicare shall give the applicant written notice of the day on which the applicant’s name is to be entered in the Register.

(8)    The Chief Executive Medicare may give the Royal Australian College of General Practitioners information about:

(a)    the current state of the Register;

(b)    additions to the Register; and

(c)    deletions from the Register.

(9)    The Chief Executive Medicare or an authorised officer may make available to members of the public, on request, the names of medical practitioners who are registered under this section and the addresses at which they practise.

(10)    In the section:

authorised officer means a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) authorised in writing by the Chief Executive Medicare as an authorised officer for the purposes of this section.

17    It was common ground that registration on the Register gives a registered medical practitioner access to special items under the Medicare Benefits Scheme and higher Medicare rebates. It was also common ground that general practitioners, such as Dr Walker, whose names do not appear on the Register, are referred to administratively as “non-vocationally registered general practitioners”. This term does not appear in the HI Act. There was no dispute that non-vocationally registered general practitioners generally attract lower Medicare rebates, with the consequence that, in general, their patients personally spend more in consulting such practitioners. Although it is not relevant to the determination of the issues in the appeal, it appears that Dr Walker’s grievance stems from the lower rebates received by him as a non-vocationally registered general practitioner.

18    Section 130 of the HI Act relevantly provides:

130    Officers to observe secrecy

(1)    A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Dental Benefits Act 2008 or the indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act.

Penalty: $500.

(2)    A person who is, or has been, an officer shall not, except for the purposes of this Act, be required:

(a)    to produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or

(b)    to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions.

(3)    Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare may:

(a)    if the Minister certifies, by instrument in writing, that it is necessary in the public interest that any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; or

(c)    divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it.

…

(4)     An authority or person to whom information is divulged under subsection (3) or (3A), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (1) and (2) as if he or she were a person performing duties under this Act and had acquired the information in the performance of those duties.    

    …

(9)    A person to whom information is divulged under subsection (6) or (7) and any person or employee under the control of the first-mentioned person shall not, directly or indirectly, except:

(a)    in the case of the Secretary of the Department of Social Security or a person or employee under the control of the Secretary of the Department of Social Security-in the performance of his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Minister for Social Security; or

(aa)    in the case of the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) -in the performance of powers or functions under an Act administered by the Minister for Social Security; or

(b)    in the case of the Secretary of the Veterans' Affairs Department or a person or employee under the control of the Secretary-in the performance of his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Veterans' Affairs Minister; or

(ba)    in the case of the Secretary of the Immigration Department or a person or employee under the control of the Secretary-in the performance of his or her duties, or in the exercise of his or her powers or functions, under the Migration Act 1958; or

(c)    in the case of a person or persons referred to in paragraph (6)(e), (ea) or (eb), or (7)(g), (ga) or (gb), or a person or employee under the control of such a person or persons-in the performance of his or her duties, or in the exercise of his or her powers or functions, under the law referred to in that paragraph; or

(d)    in the case of a director, secretary or employee of a private health insurer or a person or employee under the control of such a person-in the performance of his or her duties, or in the exercise of his or her powers or functions in relation to the carrying on of the business of the insurer;

and while he or she is, or after he or she ceases to be, such a person, make a record of, or divulge or communicate to any person, any information so divulged.

Penalty: $500.

…

officer means a person performing duties, or exercising powers or functions, under or in relation to this Act or a medicare program.

protected information means information about a person that is held in the records of the Department.

19    It will be necessary to refer below to some other provisions in the HI Act.

AAT proceeding

20    The hearing in the AAT took place on 8 May 2015. Dr Walker represented himself. The respondent was represented by Ms K Robbins, solicitor. For the first time, the Department submitted that the information was exempt from access because of s 130 of the HI Act. Dr Walker submitted that this provision was inapplicable to the information he sought because it was necessary to distinguish between “personal and non-personal information”. He contended that the information he sought related to professional or practitioner details and was “non-personal”. In support of that submission, Dr Walker drew attention to provisions in both the FOI Act and other legislation, such as the Privacy Act 1988 (Cth), which differentiated between personal information and non-personal information.

21    The Deputy President’s reasons for dismissing Dr Walker’s review application may be summarised as follows. First, any document produced by the respondent acting in accordance with s 17 of the FOI Act would be an exempt document having regard to s 38 of the FOI Act and the fact that the secrecy provision in s 130 of the HI Act was specified in Sch 3 of the FOI Act.

22    Secondly, the Deputy President rejected the distinction drawn by Dr Walker between personal and professional information on the basis that:

(a)    applying the relevant principles as to statutory construction stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan), it was inappropriate to read down the term “information” so as to distinguish between personal and non-personal information;

(b)    further support for giving the word “information” its ordinary meaning is the fact that s 130 was designed to protect the information which individuals provide to the respondent under the HI Act;

(c)    the word “information” is qualified in s 130 by reference to it being “with respect to the affairs of another person”, but the affairs of a person generally include both personal and professional affairs (in [28] of the AAT’s reasons for decision the relevant qualification is erroneously described as being “with respect to the affairs of the other person” (emphasis added), however, this typographical error has no relevant significance); and

(d)    the reference in s 3F(9) to the power to make available to members of the public, on request, the names of medical practitioners who are registered under s 3F and the addresses at which they practice did not assist Dr Walker’s argument because the power could only be exercised in narrow circumstances and related only to the details of vocationally registered practitioners. If professional information was not protected, there would be no need for s 3F(9) so it would be illogical and inconsistent with the legislation to construe s 130 in a way which excluded professional information.

23    Thus the Deputy President concluded that the legislative text, when viewed in its context, meant that the names and contact details of non-vocationally registered practitioners was information with respect to the affairs of those practitioners and was therefore caught by s 130, with the consequence that the document which would come into existence under s 17 of the FOI Act would be an exempt document. The Deputy President concluded in [31] that the Minister (sic) was not required to give access to the document.

24    In [32] of his reasons for decision, the Deputy President rejected Dr Walker’s argument that the information which would be contained in the proposed document had to be assessed to determine whether it was exempt information on the basis that s 38(1) made the information exempt by reason of it being subject to s 130(1) of the HI Act and no further inquiry was relevant.

25    The Deputy President then addressed the question whether the AAT had power to grant access to Dr Walker to a document which would be an exempt document. He found in [35] that, under s 58(2) of the FOI Act, once a document is established to be an exempt document the AAT does not have the power to grant access to that document. It may interpolated at this point that this is correct, however, it fails to grapple with the full terms of s 58(2) and the AAT’s power under that provision to grant access to non-exempt information in an exempt document (see Swiss Aluminium Australia Ltd v Commissioner of Taxation [1987] HCA 43; (1987) 163 CLR 421 at 426 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ). It may be that the proceedings below were conducted on the basis that any document produced in accordance with s 17 of the FOI Act containing the information sought by Dr Walker would not contain any information which was not exempt. In any event, no issue was raised on this matter in the appeal.

The appeal to this Court

26    Dr Walker’s notice of appeal originally set out the following matters which were described as “questions of law” (without alteration):

Questions of Law

1.    Their claim under S.38 dismissed S.11 (2) (a) and (b) having failed to show that under S.38 my FOI request does not meet the intent of parliament as given under S.3 entire. My original claim for FOI does not fall with the exempt components as specified under S.38 or related sections including subservience to The Health Insurance Act 1973. S. 130 in any part.

2.    This was the basis under which I made appeal to the Administrative Appeals Tribunal and was not addressed but was obfuscated and ignored. I make note here that the same person who dismissed my previous appeal at the Office of the Information Commissioner also sat on the AAT bench at the time of my subsequent appeal to the AAT, and I claim that Judicial Bias occurred as a result which may account for this Question (2) of Law.

27    In his notice of appeal, Dr Walker asked the Court to make the following “findings of fact”:

Findings of Fact that the Court is asked to make

1.    That the court find that my FOI application is valid and must be complied with.

2.    That my application complies with the requirements of the FOI Act in all parts and any subordinate legislation that may arise.

3.    That the matter of costs be considered by the court as to those fees that can be charged in relation to my FOI request. Supporting documentation would suggest that they continue to use the fee charging process as a means to deny a fair and reasonable outcome in this matter.

28    The only ground set out in the notice of appeal was as follows (without alteration):

Grounds relied on

Variation or significant reduction in fees as given to date are untenable for an individual and that such fees previously charged do fall not within the intent of the FOI Act.

29    Dr Walker sought orders that the respondent “fulfil the original FOI application” and that there be a variation in the fees charged so that they were “fair and reasonable and reduced to an affordable reality”. He also sought costs.

30    At the commencement of the hearing of the appeal, the Court raised the issue whether, notwithstanding that no notice of objection to competency had been filed, the notice of appeal set out one or more questions of law adequately and precisely. The Court drew attention to the great importance of any question of law in a s 44 AAT Act “appeal” being stated with precision: see Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [91]. The Court also indicated that there was authority to support some involvement by the Court in assisting a litigant in person to frame a question of law adequately, at least where it is possible from the available materials to discern a question which, if properly framed, could found the Court’s jurisdiction (see Haritos at [103]).

31    Ms FT Roughley of Counsel (who appeared for the respondent) did not oppose this course as it was evident that Dr Walker’s primary concern was to obtain a ruling from the Court on the proper construction of s 130 of the HI Act in the context of its interaction with s 38 of the FOI Act.

32    Both parties were agreed that the case should proceed to be heard on the basis of an amended notice of appeal which replaced the original proposed two questions of law with the following single question of law:

1.    Whether the AAT misconstrued s 130(1) of the Health Insurance Act 1973 in finding that the information sought in the FOI request dated 8 February 2012, if produced in accordance with s 17 of the FOI Act, would be an exempt document under s 38 of the FOI Act in that, on its proper construction, s 130(1) does not apply to information relating to another person’s professional or business affairs and is limited to personal information.

33    Dr Walker was directed to file and serve an amended notice of appeal containing this amended question of law within 48 hours, which he did.

34    The respondent filed an interlocutory application which sought to adduce fresh evidence under r 33.29 of the Federal Court Rules 2011. The fresh evidence was in the form of an affidavit by Mr Brendan Moon affirmed on 13 January 2016. A supporting affidavit affirmed by the respondent’s solicitor on 14 January 2016 explained that the interlocutory application was intended to deal with the contingency that Dr Walker may seek to challenge the Deputy President’s finding at [23] of his reasons for decision, which was to the effect that the names and contact details of non-vocationally registered practitioners are acquired and retained by the respondent for the purposes of the administration of the Medicare Benefits Scheme and that information was acquired by agency officers in the performance of their duties or the exercise of their powers or functions under the HI Act.

35    Dr Walker confirmed that he did not challenge that finding. Accordingly, the interlocutory application should formally be dismissed.

The parties’ submissions summarised

36    Dr Walker’s written submissions were very brief, as is reflected in the following full excerpt (without alteration):

1.    The AAT erred at law in failing to find my original claim for information under the FOI Act 1975 does not fall within the exempt components as specified under s 38 of the FOI Act or related sections, including subservience to The Health Insurance Act 1973 s 130 in any part.

2.    From the evidence provided to the Federal Court by the AAT in relation to this appeal, natural justice was denied to me by the AAT and evidence I provided to the Tribunal was not considered in reaching the decision to uphold the decision of the Office of the Information Commissioner and refuse access to the information sought.

3.    I say the AAT is withholding exculpatory evidence in regards to this appeal. This part is made by me on the basis of personal witness, at invitation of the AAT, to and of documents submitted by me to the AAT as part of the tribunal appeal process, and in response to specific direction following the hearing on 9 May 2015. These documents were not produced in response to the federal court rule 33.18 or in response to the subpoena issued on 9 December 2015.

37    In oral address, Dr Walker relied upon the following additional primary submissions in support of his proposed construction of s 130(1) of the HI Act:

(a)    the need to give effect to the general objects of the FOI Act as set out in s 3;

(b)    the legally enforceable right of access to information established by s 11 of the FOI Act;

(c)    there is a presumption in favour of access to information and s 130 of the HI Act should be read down to minimise the range of material which cannot be accessed under the FOI Act;

(d)    because the names and addresses of general practitioners who are on the Register can be obtained under s 3F(9) of the HI Act, such access should also be obtained under the FOI Act in respect of similar information relating to non-vocationally registered general practitioners; and

(e)    the phrase "information relating to the affairs of another person" in s 130(1) of the HI Act are words of limitation, not words of expansion.

38    Ms Roughley supported the Deputy President’s construction and the reasons for that construction. On the particular issue of whether the words “information with respect to the affairs of another person” should be read down so as to protect only the private and personal information of a person and not prohibit from disclosure information relating to medical practitioners in their capacity as practitioners, Ms Roughley relied upon the following additional considerations in support of the Deputy President’s rejection of that suggested distinction:

(a)    sufficiently precise language is used in other contexts where the Parliament intends to distinguish between a person’s “personal affairs” from their “business affairs” or “professional affairs”, citing the following examples from the FOI Act, i.e., s 12(2) (referring to a “person’s business, commercial or financial affairs”; s 27(2)(a) (referring to a person’s “business or professional affairs”) and s 47G (referring to “a person in respect of his or her business or professional affairs”); and

(b)    drawing such a distinction for the purposes of s 130(1) would be inconsistent with the purpose of the provision understood in the light of its statutory context. The HI Act provides the legislative foundation for the administration of the Medicare Benefits Scheme and regulates many aspects of the activities of medical practitioners in their capacity as practitioners, as well as the personal affairs of their patients who claim Medicare benefits. The suggested distinction would deprive s 130(1) of much of its force and, because so much of the legislation is concerned with the affairs of medical practitioners in their capacities as medical practitioners, any intention to limit s 130(1) to the personal information of medical practitioners would have been made clear.

39    In her oral submissions, Ms Roughley relied upon the following further matters:

(a)    the phrase “information relating to the affairs of another person” is of wide import and operates to widen the provision so as to include professional or business affairs, which is also consistent with the subject matter of the HI Act and its regulation of the activities of medical practitioners who participate in the Medicare Benefits Scheme;

(b)    the Parliament could have limited the operation of s 130(1) by using an alternative phrase such as “personal affairs”, but it did not do so;

(c)    applying s 2C of the Acts Interpretation Act 1901 (Cth), “person” includes a corporation. This is significant because, under s 130(5A) of the HI Act, an authorised officer is not prohibited from providing the name and address of a hospital to a person who seeks that information, which strongly indicates that the phrase “information relating to the affairs of another person” encompasses the name and address of a person because, otherwise, s 130(5A) would not be necessary; and

(d)    such a construction is reinforced by other provisions which create exceptions to the secrecy provision in s 130 (1), such as ss 130(3), (3A), (4A), (5), (5C) and (5D), as well as ss 3F(6), (8) and (9).

Disposition of the appeal

40    It is well settled that the contemporary approach to legislative construction emphasises text, context and purpose (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] - [71] per McHugh, Gummow, Kirby and Hayne JJ; Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 (at [5] and [40] per French CJ and Kiefel, Bell and Keane JJ) and Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 (Certain Lloyd’s Underwriters) at [23]-[24] per French CJ and Hayne J).

41    The first thing to note about the text of s 130(1) of the HI Act is the description of the information which is the subject of the secrecy obligation imposed by that provision. That information is defined by reference to two related qualifications, i.e. "any information" which is:

(a)    "with respect to the affairs of another person"; and

(b)    which information is "acquired by [the officer] in the performance of his or her duties, or in the exercise of his or her powers or functions under this Act”.

42    It is convenient to focus first on the significance of the words "the affairs of another person". It may be accepted that the reference to "the affairs of" provides some degree of limitation to an alternative hypothetical formulation of "information with respect to another person". That is not to say, however, that the limitation is as broad as Dr Walker contends, such that the relevant information is confined to private or personal information and does not extend to professional or business information.

43    The ordinary meaning of the words "the affairs” of a person is broad, as is reflected in leading dictionary definitions of the word "affair". The Macquarie Dictionary (5th edition) provides the following definitions:

1.    anything done or to be done; that which requires action or effort; business; concern: an affair of great moment; the affairs of state.

2.    (plural) matters of interest or concern; particular doings or interests: put your affairs in order.

The relevant definitions in The New Shorter Oxford English Dictionary (1993) are:

1    What one has to do; business; a concern; a matter…

2    spec. In pl. Ordinary pursuits of life; business dealings; public matters.

44    These meanings provide no support for Dr Walker's construction. Rather, they support a construction of "affairs of another person" as being not confined to the personal information of another person and as extending to also include information concerning a person's business or professional activities.

45    Naturally, s 130(1) of the HI Act needs to be read as a whole. The reference to "information with respect to the affairs of another person" cannot be divorced from the explicit nexus which is drawn in s 130(1) between such information and it having being "acquired by [the officer] in the performance of his or her duties, or in the exercise of his or her powers or functions under this Act". Thus, it is relevant to the task of construction to have regard to the kind of information which is likely to be acquired by such an officer in administering the HI Act.

46    As noted above, the HI Act provides the legislative underpinning for the Medicare Benefits Scheme which, by its very nature, is elaborate and complicated. The operation of that Scheme necessarily involves the acquisition by Departmental officers of a wide range of information relating to people and institutions, such as hospitals. That information may relate to the administration of provisions which determine whether an eligible person is entitled to a Medicare benefit (see s 10). This may turn on whether the medical practitioner is registered, as is the case under s 3F (which deals with a vocationally registered general practitioner). Or it might depend on whether the medical practitioner is a person who is registered or licensed as a medical practitioner under a relevant law of a State or Territory (which includes a non-vocationally registered general practitioner) or a nurse practitioner who is registered or authorised to practise as such under a law of a State or Territory. Such provisions necessarily require Departmental officers to acquire relevant information concerning such medical practitioners, which information will include not only their names and addresses, but also other information such as whether the medical practitioner is registered or authorised to practise medicine with a particular status. Information may also be acquired in relation to the location at which a particular professional service is provided or whether a medical practitioner is involved in an "approved placement" for the purposes of the Register which must be kept under s 3GA of the HI Act.

47    Other information will necessarily be acquired by Departmental officers to administer the Medicare Benefits Scheme in relation to patients who wish to receive Medicare benefits. This information will not be limited merely to a patient's name and address, but will extend to include other information which is required in order to determine whether the person is an "eligible person" within the definition in s 3 (such as whether the person is an Australian resident or an eligible overseas representative). Other relevant information which will be collected in relation to patients who are "eligible persons" is the kind and frequency of any professional service which is the subject of a claim for a Medicare benefit. Such information is relevant, for example, to calculating the Medicare benefit to which the person is entitled, but it will also be relevant to the administration of provisions in the HI Act relating to a "safety-net" which applies to families and individuals (see ss 10AC - 10ADA). For example, where relevant, information will be acquired by the Department concerning family composition to determine the “safety-net” in respect of a family (see s 10AE).

48    These few examples illustrate the wide nature and range of the information which is likely to be acquired by Departmental officers in administering this legislation. The relevant information may relate to medical practitioners who participate in the Medicare Benefits Scheme, patients, their families, and hospitals. Some of the information might be publicly available but much of it will not. Some of the information will be of a highly sensitive and confidential nature, such as the specific professional medical services obtained by individual patients. Other information may not. Necessarily, however, the information will extend well beyond personal information in the form of a person's name and address.

49    It is perhaps unsurprising that, faced with the need to protect the sensitivity of much of the information which is acquired by the Department in administering the legislation, the Parliament has chosen to insert a provision such as s 130 and to structure it as it is. In broad terms, that structure involves the imposition on Departmental officers of an obligation of secrecy with respect to information of the kind described in s 130(1). That obligation attaches to both the recording of relevant information by such an officer as well as its disclosure. The obligation operates while the person is an officer of the Department and afterwards. As noted above, it is a criminal offence to breach the obligation imposed by s 130(1).

50    The scheme of s 130 is then to make specific provision for instances where particular information may lawfully be recorded or disclosed notwithstanding the secrecy obligation imposed by s 130(1). These provisions take different forms. For example, under s 130(3), information acquired by an officer in administering the legislation may be divulged but only where:

(a)    the Minister has certified by instrument in writing that it is necessary in the public interest to do so and directed to whom information may be divulged; and

(b)    either the Secretary of the Department or the Chief Executive Medicare exercise their discretion under this provision to divulge such information as is included in the Ministerial certificate.

51    That is not the only provision which empowers the Secretary of the Department or the Chief Executive Medicare to divulge information without contravening s 130(1). For example, in s 130(3A), these persons also have a discretion to divulge information acquired by an officer in administering the HI Act to a prescribed authority or person where the relevant information is also itself prescribed for this purpose.

52    There are several other specific provisions in both s 130 and elsewhere in the HI Act which create exceptions to the obligations imposed by s 130(1). They include where a person provides a document to the Chief Executive Medicare in relation to a claim for a Medicare benefit and that document is then in turn provided back to that person, or where information relating to a particular person is divulged to that same person (see s 130(4A)(a) and (b) respectively).

53    Another example is s 3EA, which provides for the Chief Executive Medicare to determine that a medical practitioner is a recognised Fellow of the Royal Australian College of General Practitioners. In summary, provision is made for a medical practitioner to apply to the Chief Executive Medicare for a determination that the applicant is such a Fellow and is eligible, in accordance with the regulations, for a determination under s 3EA. Provision is made in s 3EA(5) for the Chief Executive Medicare to give the Royal Australian College of General Practitioners information about whether or not determinations under the provision are in force in respect of particular persons. In other words, the Chief Executive Medicare has a discretion to give a particular organisation information about whether or not there is a determination in force in respect of particular persons. In addition, there is a discretion conferred upon the Chief Executive Medicare or an authorised officer to disclose certain other information under s 3EA(6), which provides:

(6)    The Chief Executive Medicare or an authorised officer may make available to members of the public, on request:

(a)    the names of medical practitioners in respect of whom determinations under this section are in force;

(b)    the addresses at which they practise.

54    In my view, these textual considerations support the construction of s 130(1) which was adopted and applied by the Deputy President and do not favour Dr Walker’s alternative construction. The text of both s 130(1) and other related provisions indicate that the information which is the subject of s 130(1) is information with respect to the affairs of another person, which information is not confined to private or personal information of that person but extends to include information with respect to the business or professional activities of the person.

55    Dr Walker’s construction effectively invites words to be read into s 130(1) which are not there, so that the provision would read, relevantly, as referring to “any information with respect to the affairs of another person which are of a private or personal nature…” I see no basis for construing the provision that way.

56    I consider that there is another textual matter which, although not referred to by the Deputy President, strongly favours the construction which was adopted and applied by him. It is to be found in s 130(5A) of the HI Act (which was emphasised by Ms Roughley). That provision is (emphasis added):

(5A)    If a person applies to an authorised officer for information about a hospital, this section does not prohibit that authorised officer or any other authorised officer providing all or any of the following information in respect of the hospital to the applicant:

(a)    the name and address of the hospital;

(b)    the number of beds available in the hospital to patients;

(c)    whether or not the hospital is a private hospital or a recognised hospital;

(d)    the kinds of services (for example, obstetric services or psychiatric services) provided at the hospital;

(e)    whether or not the hospital is a teaching hospital.

For completeness, it might be noted that s 130(5B) provides that, in s 130(5A), “authorised officer” means the Secretary or an APS employee in the Department.

57    In my view, no contrary intention is manifested in the HI Act which would displace the operation of s 2C of the Acts Interpretation Act in relation to s 130 of the HI Act. The effect of that provision is that a reference in Commonwealth legislation to a “person” includes a body corporate. Judicial notice can be taken of the fact that some hospitals in Australia are owned and operated by corporations in which professional services are provided to patients who may be entitled to Medicare benefits under the HI Act. Significantly, s 130(5A) makes it clear that the secrecy obligation(s) imposed by s 130 do not prohibit an authorised officer from providing inter alia the name and address of a hospital to a person who seeks that information. If Dr Walker’s proposed construction is correct, there would be no need for s 130(5A) because, on his construction, the name and address of the hospital is not information of a kind which is caught by s 130(1). Acceptance of Dr Walker’s construction would render this aspect of s 130(5A) superfluous. That approach would be inconsistent with the requirement that, in construing a statutory provision, the Court must strive to give meaning to every word of the provision (see Project Blue Sky at [71] per McHugh, Gummow, Kirby and Hayne JJ).

58    In my view, considerations of context and purpose also favour the construction adopted by the Deputy President. Part of the relevant context is the nature and extent of information which is likely to be acquired by Departmental officers in their administration of the legislation. Another part of that context is the structure of s 130 as a whole. Both these matters have been discussed above and need not be repeated. They are also relevant to the question of purpose (see the observations of French CJ and Hayne J in Certain Lloyd’s Underwriters at [25]).

59    I am not persuaded that Dr Walker’s other submissions in support of his preferred construction carry any weight. First, as to his contention that the general objects stated in s 3 of the FOI Act create a “presumption” in favour of access and require the exemptions to be read down, that approach has been rejected in many cases relating to both Commonwealth and State freedom of information legislation, including News Corporation Ltd v National Companies and Securities Commission [1984] FCA 26; (1984) 1 FCR 64 at 66 per Bowen CJ and Fisher J; Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 at 153 and 154 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ; Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 317; (1992) 36 FCR 111 at 115 per Davies, Wilcox and Einfeld JJ and Workcover Authority (NSW) v Law Society of NSW [2006] NSWCA 84; (2006) 65 NSWLR 502 at [149]-[151] per McColl JA with whom Handley and Hodgson JJA agreed. That position is not altered by the fact that s 11 of the FOI Act creates a legally enforceable right to obtain access to information because that right itself is expressed in terms of a right to obtain access “in accordance with this Act…”. That necessarily requires that relevant exemptions be construed and applied in their terms.

60    Secondly, Dr Walker’s reliance upon the discretion of the Chief Executive Medicare or an authorised officer under s 3F(9) of the HI Act to make available to members of the public, on request, the names of medical practitioners who are registered as vocationally registered general practitioners under s 3F takes the matter no further. That discretion applies only to vocationally registered general practitioners. It says nothing about the position regarding non-vocationally registered general practitioners. Moreover, it is a discretionary power which is conferred upon specified persons, namely the Chief Executive Medicare or an authorised officer, which puts the matter into a very different regime than that which applies under the FOI Act.

61    As is evident from the reasons above, while I respectfully agree with the Deputy President’s construction, I have reached that conclusion for reasons which differ in some respects from those of the Deputy President.

62    For these reasons, I consider that the appeal should be dismissed.

Costs

63    Ms Roughley contended that the ordinary rule should apply and costs should follow the event.

64    Dr Walker disagreed. He submitted that, if he was unsuccessful, there should be no order for costs having regard to the following considerations:

(a)    the appeal was in the nature of public interest litigation and there is considerable public interest in the proper construction of s 130(1);

(b)    it was evident that the Department itself was uncertain about the interaction between s 38 of the FOI Act and s 130(1) of the HI Act because this ground of exemption was only belatedly raised by it in the AAT and it had previously resisted Dr Walker’s FOI Act request on other grounds (see [4]-[5] above); and

(c)    Dr Walker’s limited financial circumstances.

65    The question is finally balanced but I consider that this is an appropriate case to depart from the ordinary rule and that each party should bear their own costs. There is some force in Dr Walker’s submission that the Department itself was evidently unsure about the meaning and application of s 38 of the FOI Act and s 130 of the HI Act having regard to the different positions it has taken at various stages in the lengthy history relating to Dr Walker’s request for access. Furthermore, the issues of statutory construction which have been agitated by Dr Walker and now determined have a wider application than his case alone. I accept his contention that there is, in this appeal, a substantial public interest in the issues of statutory construction. Accordingly, there will be no order as to costs.

Conclusion

66    The appeal will be dismissed. There will be no order as to costs.

Associate:

Dated: 14 March 2016