Re Beryl Norah Young v NF Wicks [1986] FCA 169 (30 May 1986)

FEDERAL COURT OF AUSTRALIA

Re: BERYL NORAH YOUNG
And: N.F. WICKS
No. QLD G88 of 1985
Administrative Law (Judicial Review)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative Law (Judicial Review) - request for documents under Freedom of Information Act 1982 - access allowed after internal review - effect of s.12(2) of the Freedom of Information Act - effect of phrase "proper understanding" - whether documents exempt under s.41(1) - meaning of "personal affairs" - whether documents exempt under s.43(1) - meaning of "business or professional affairs" - whether decision-maker erred in treating ss.41 and 43 as mutually exclusive - discretion of court not to make order when futile - whether documents exempt under s.38 by reason of r.283 Air Navigation Regulations - whether initial request complied with s.15(1) - request in whole context capable of being read as request for documents.

Words and Phrases - "proper understanding" (s.12(2)).

- "personal affairs" (s.41(1)).
- "business or professional affairs" (s.43(1)).

Freedom of Information Act 1982 ss.12(2), 15(1), 38, 41, 43(1)(c).

Air Navigation Regulations r.270, 283.

Re Waterford and Department of Treasury (1983) 5 ALD 193

Re Williams and The Registrar of the Federal Court of Australia (1985) 8 ALD

219

Lamb v. Moss (1983) 49 ALR 533.

Bradfield v. Federal Commissioner of Taxation [1923] HCA 67; (1924) 34 CLR 1

Re Social and Community Welfare Services (State) Award (1984) 8 IR 361.

Re Jamieson and Department of Aviation (1983) 5 ALN 300.

Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. (l955) 2 All ER 657.

Commissioner of Taxation v. Swiss Aluminium Australia Ltd. (unreported, 26 May 1986).

Downey v. Pryor [1960] HCA 49; 103 CLR 353.

HEARING

SYDNEY
30:5:1986

Counsel and Solicitors for Applicant: Mr. I. Hanger Q.C. with Mr. McGill Crown Solicitor (Queensland)

Counsel and Solicitors for Respondent: Mr. J. Greenwood Q.C. with Mr. R. Gotterson Australian Government Solicitor

ORDER

1. Until further order, publication of the contents of the confidential appendices to the reasons for judgment be restricted to the parties and their advisers.

2. Declare that, by reason of the provisions of s.12(2) of the Freedom of Information Act, a person is not entitled to obtain access to documents Nos. 1 to 36 inclusive mentioned in the second confidential appendix.

3. Declare that none of the subject documents being the documents described in the second confidential appendix are exempt under s.41(1) of the Act.

4. Declare that none of the subject documents are exempt under s.43(1)(c)(i) of the Act.

5. Declare that the subject documents are exempt documents under s.38 of the Act by reason of the application of r.283(1) of the Air Navigation Regulations.

6. Order that the respondent pay one-half of the applicant's costs of the application.

7. Reserve liberty to any party to apply for further relief as she or he may be advised on three days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant, who is the senior pilot of the Ministerial Air Unit of the Queensland Government, seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 of a decision made in August 1985 by the respondent as Director, Information and Executive Projects Division of the Department of Aviation ("the Department") that certain documents relating to her were not exempt from disclosure under the Freedom of Information Act 1982.

2. On 25 January 1985, Mr. Paul Smith, on behalf of Brisbane TV Limited (Channel Seven), wrote to the Secretary of the Department as follows:

"I would like to make three separate requests for
information and documents under the Freedom of
Information Act.

Request 1: We are seeking copies of any
files, documents, or other material
that relates to the method of operation
of the Queensland Government's Air
Wing. (This request does not seek
information of a day-to-day nature;
flight records etc., are not sought in
this request).

The material we are after relates
specifically to the reasons for the Air
Wing operating as a 'private', rather
than an 'aerial work' operation under
air navigation regulations.

We also request any material held
regarding any approach made verbally
(or in writing) by Queensland
Government Air Wing pilots to the
Department's Brisbane office regarding
this matter.

Also, any material from the Australian
Federation of Air Pilots on this matter
to the Department's Federal office, or
to the office of the Minister for
Aviation.

Request 2: We are seeking copies of flight
records of the Queensland Government
Air Wing for the 12 months of 1984. By
'Flight Records' we mean details
provided by the Government Air Wing to
the Department that would include
information such as the day and time of
flight, aircraft used, pilot's name,
name of passengers, and point of
departure and destination.

Request 3: We are seeking any information
about any departmental investigations,
inquiries, or charges (if any have been
made), relating to the following
commercial pilots: Miss Beryl Young,
and Mr. Trevor Brady.

Please note that the above are submitted as
three separate requests under the Act, and we
would ask that request one be regarded as the
first priority..."

3. By letter dated 15 March 1985, Mr. O.W. Lawry, a Regional Director of the Department, decided to grant Mr. Smith access under the Act to certain of the documents the subject of his request. Access was refused to certain other documents on the grounds that they were exempt from disclosure under the Act. On 27 March 1985, Mr. Smith requested the Department to review Mr. Lawry's decision.

4. By letter dated 3 June 1985, the respondent wrote to the applicant informing her that, in reviewing Mr. Lawry's decision, he had concluded that, insofar as that decision involved documents concerning the applicant, the documents "relate more properly to grounds of exemption in Section 43 of the Act (rather than section 41) and specifically Section 43(1)(c). That is to say, the information they contain seems to me to relate to your business or professional affairs rather than your personal affairs. In terms of that section, I am required to decide whether the disclosure of the information would unreasonably affect you adversely in your business or professional affairs or could reasonably be expected to do so."

5. For reasons he then gave, the respondent said that he had come to the provisional conclusion that the documents in question, which are described in the first confidential appendix to these reasons, should be released. However, in accordance with s.27 of the Act, the respondent gave the applicant an opportunity of making submissions in support of a contention that the documents were exempt under s.43.

6. The applicant responded by letter dated 25 June 1985. She contended that s.41 applied and that ss.41 and 43 were not mutually exclusive. Without prejudice to her contention that s.41 applied, the applicant advanced a number of reasons why disclosure of the documents could reasonably be expected to unreasonably affect her adversely for the purposes of s.43(1)(c)(i).

7. After making an interim reply by letter to the applicant dated 26 June 1985, the respondent wrote to the applicant by letter dated 12 August 1985. He affirmed his provisional conclusions, first, that s.41 did not apply, saying that the documents did not concern the applicant's "personal affairs"; and, secondly, that s.43(1)(c)(i) and (ii) did not apply. The respondent could see no grounds for claiming that s.43(1)(c)(ii) applied. As to s.43(1)(c)(i), he accepted that the documents concerned the applicant's dealings with the Department in relation to her pilot licence and her flying career and "as such...relate(d) to (her) business or professional affairs." However, for reasons he then gave, the respondent was of the opinion that disclosure of the documents would not "unreasonably" affect her adversely.

8. In seeking judicial review, the applicant first submitted that the respondent erred in law in failing to apply the provisions of s.12(2) of the Act and deciding that access should be denied to certain of the subject documents because they came into existence more than five years before 1 December 1982. She further argued that the saving provisions of s.l2(2)(b) did not apply.

9. Section 12(2) provides:

"(2) A person is not entitled to obtain
access under this Part to a document or a part
of a document that became a document of an
agency...more than 5 years before the date of
commencement of this Part unless -

(a) ...

(b) the document or that part of the document
is a document or a part of a document
access to which is reasonably necessary to
enable a proper understanding of a document
of an agency...to which that person has
lawfully had access."

10. The point was argued by reference to a booklet of documents, accepted by the parties as the same as those described in the first confidential appendix. The index to the booklet is contained in the second confidential appendix to these reasons. A perusal of that appendix indicates that, of a total of 67 documents, documents numbered 1 to 36 inclusive came into existence between 12 September 1973 and 23 November 1977, that is, before 1 December 1977, being the five year period referred to in s.12(2). However, it was submitted on behalf of the respondent that s.12(2)(b) applied in that access to these documents was "reasonably necessary to enable a proper understanding" of the remaining 31 documents, which came into existence between 25 May 1978 and 5 August 1981.

11. I have read the documents described in the second confidential appendix. In my opinion, documents Nos. 37 to 67 inclusive may be readily understood without reference to the earlier documents. That is to say, it is possible fully to understand what is meant by documents Nos. 37 to 67 inclusive without the need to look at documents Nos. 1 to 36 inclusive. It is true that the later documents frequently use abbreviations which are in standard use in air navigation; however, it is not necessary to resort to the earlier documents in order to discover their meaning - that may be ascertained elsewhere, if necessary.

12. The main thrust of the respondent's submission on this point was made with reference to document No. 61. It is an undated document but internal evidence suggests that it must have come into existence after 18 November 1980. It contains a summary of a number of events, some of which occurred before 1 December 1977. The respondent's contention was that a fuller understanding of the events thus summarised could be obtained by looking at those of documents Nos. 1 to 36 inclusive which dealt with the particular events. Thus, the respondent said, the provisions of s.12(2)(b) applied because the later documents (Nos. 37 to 67 inclusive) could only be "properly understood" if the reader were also to have access to the earlier material contained in documents Nos. 1 to 36 inclusive.

13. In my opinion, a distinction should be drawn for present purposes between the need for a person seeking access to have a proper understanding of a document, on the one hand, and a person's wish to have further details or elaboration of a document, on the other. The former position falls within s.12(2)(b) but the latter situation, which is the instant case, does not.

14. In the present case, no difficulty arises in the understanding of documents Nos. 37 to 67 inclusive. A person may well wish to have access to further details of the earlier material but such access is not necessary for a proper understanding of the later material. This is so, even if, as here, some of that material is in the form of a summary of the earlier events (cf. Re Waterford and Department of Treasury (1983) 5 ALD 193).

15. It follows, in my view, that the saving provisions of s.12(2)(b) have no application here. I propose to declare that by reason of the provisions of s.12(2) of the Freedom of Information Act, a person is not entitled to obtain access to documents Nos. 1 to 36 inclusive mentioned in the second confidential appendix.

16. It was next submitted on behalf of the applicant that all of the subject documents were exempt from disclosure by virtue of s.41(1) of the Act. It provides:

"41. (1) A document is an exempt document if
its disclosure under this Act would involve the
unreasonable disclosure of information relating
to the personal affairs of any person...."

17. In my opinion, none of the subject documents contain information relating to the "personal affairs" of the applicant within the meaning of s.41(1) of the Act. The reference to "personal affairs" of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual (see Re Williams and the Registrar of the Federal Court of Australia (1985) 8 ALD 219 at p 221). Applying that test to the present material, it is not possible to identify any document as one which contains information referring to matters of private concern to the applicant as an individual: each of the documents relate to the administration by the Department of the Air Navigation Act 1920 and the Air Navigation Regulations thereunder. The applicant, it is true, is the subject of the documentation but the documents are concerned exclusively with the public regulation of air navigation. The result is that the documents have a public, rather than a private, character.

18. It should be noted that it was also argued on behalf of the applicant that the respondent erred in law by treating the provisions of ss.41 and 43 as mutually exclusive and, it was said, thereby failed, constructively at least, to consider the applicant's claim for exemption by virtue of s.41. It was then contended on behalf of the applicant that an order should be made under the Judicial Review Act in the nature of a writ of mandamus ordering that the respondent consider the claim for exemption under s.41 in accordance with law.

19. It is unnecessary to pursue these questions since it would be futile to make such an order when, on remission, the respondent would be bound to hold that the information in the subject documents did not relate to the "personal affairs" of the applicant for the purposes of s.41. The futility of such an order would lead the Court, in the exercise of its discretion, to decline to grant relief under s.16 of the Judicial Review Act (see Lamb v. Moss (1983) 49 ALR 533 at pp 546 et seq.).

20. It was further submitted on behalf of the applicant that the subject documents were exempt by virtue of s.43(1)(c)(i). It provides as follows:

"43.(1) A document is an exempt document if
its disclosure uinder this Act would disclose -

(a) ...

(b) ...

(c) information...concerning a person in
respect of his business or professional
affairs...being information -

(i) the disclosure of which would, or
could reasonably be expected to,
unreasonably affect that person
adversely in respect of his lawful
business or professional affairs
or that organization or
undertaking in respect of its
lawful business, commercial or
financial affairs;"

21. It was contended on behalf of the applicant that the information in the subject documents related to the applicant's "business or professional affairs" within the meaning of s.43(1)(c)(i). In my opinion, although the documents relate to the applicant in her capacity as a pilot, it does not follow that they relate to her "business or professional affairs".

22. As has been said, the applicant is employed by the Queensland Government as the senior pilot of the Ministerial Air Unit. As a government employee, the applicant is not conducting any business or carrying on any commercial operation in her own right or on behalf of any other person. Her activities are carried out pursuant to her contract of government employment. It follows, in my view, that the information in the subject documents does not concern the applicant in respect of her "business affairs" within the meaning of s.43(1)(c)(i).

23. Nor, in my opinion, does the information in the documents concern the applicant in respect of her "professional affairs" for this purpose. In my view, the air navigation activities of a pilot employed by government cannot properly be characterised as her "professional affairs".

24. The ordinary dictionary definition of a profession is "a vocation requiring knowledge of some department of learning or science, esp. one of the three vocations of theology, law and medicine (formerly known specifically as the professions or the learned professions)" (Macquarie Dictionary). In Bradfield v. Federal Commissioner of Taxation [1923] HCA 67; (1924) 34 CLR 1., Isaacs J. said that the word "profession" is "not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community..." (at p.7). The authorities are reviewed, in an industrial context, in Re Social and Community Welfare Services (State) Award (1984) 8 IR 364 at pp 365-6; and for a sociological perspective see The Professions in Australia Boreham, Pemberton & Wilson (1976), University of Queensland Press at pp.6-7. But, however progressive the concept of a "profession" may be, no attempt was made in the present case to adduce evidence of any usage which would indicate community acceptance of the air navigation activities of a pilot employed by government as "professional affairs". In the absence of any evidence of any such usage, it is not, in my opinion, open to the applicant to seek to extend the ordinary dictionary meaning of the term "professional affairs". That ordinary meaning should, in my view, be applied in s.43(1)(c)(i). In the result, this claim for exemption must fail.

25. It was further submitted on behalf of the applicant that the subject documents were exempt by reason of the combined operation of s.38 of the Act and r.283 of the Air Navigation Regulations. Section 38 provides:

"38. A document is an exempt document if
there is in force an enactment applying
specifically to information of a kind contained
in the document and prohibiting persons referred
to in the enactment from disclosing information
of that kind, whether the prohibition is
absolute or is subject to exceptions or
qualifications."

26. Section 38 refers to an "enactment". By s.4(1)(c) of the Act an "enactment" is defined so as to include an instrument, including regulations made under an Act. Regulation 283 provides:

"283.(1) A report or other document furnished
to the Secretary that relates to an accident or
incident that is, or has been, the subject of an
investigation shall not be made public without
the approval in writing of the Secretary.

(2) The Secretary may, for the guidance of
persons engaged in air navigation, publish such
comments and recommendations relating to the
causes or circumstances of any accident or
incident, the subject of an investigation, as he
considers necessary or desirable for the purpose
of eliminating the likelihood of any similar
occurrence in the future."

27. The applicant sought to rely upon s.38 at a late stage of the proceedings. Even later, during the course of the hearing, the respondent sought to answer the claim for exemption by, inter alia, tendering a purported approval under r.283(1) given by Mr. P.E. Choquenot, Director, Bureau of Air Safety Investigators, a delegate authorised by the Secretary for this purpose. The purported approval was dated 22 May 1986 and extended to the subject documents.

28. In my opinion, r.283(1) is an enactment "applying specifically" to information in the subject documents for the purposes of s.38 (see Re Jamieson and Department of Aviation (1983) 5 ALN 300 per Davies J.). In this connection, it is to be noted that it is common ground that the subject documents are reports or other documents that relate to an "incident" that had been the subject of an investigation within the meaning of r.283(1). "Incident" is defined in r.270 to mean "an occurrence, other than an accident, associated with the operation of the aircraft that affects or could affect the safety of the operation of the aircraft."

29. However, the provisions of s.38 can only confer an exemption if r.283(1) prohibits the disclosure of information. It was argued on behalf of the respondent that, because of the recent grant by the Secretary's delegate of approval to publication, there was no operative prohibition. If the matter were free from authority, there may well have been room for argument as to the meaning of "prohibiting" where used in s.38, even if the concluding words of the provision are taken into account (cf. Tool Metal Manufacturing Co., Ltd. v. Tungsten Electric Co., Ltd. [1955] UKHL 5; (1955) 2 All ER 657 at pp 664-5).

30. However, in my opinion, the question has been conclusively resolved in favour of the applicant by the recent decision of the Full Court in Commissioner of Taxation v. Swiss Aluminium Australia Limited (unreported, 26 May 1986). The question there referred for decision under s.45 of the Administrative Appeals Tribunal Act 1975 was as follows:

"QUESTION:

Whether the document marked in the proceedings
as D79 is an exempt document pursuant to the
provisions of section 38 of the Freedom of
Information Act 1982 on the ground that section
l6 of the Income Tax Assessment Act 1936 is an
enactment applying specifically to information
of a kind contained in the document and
prohibiting persons referred to in the enactment
from disclosing information of that kind."

31. Section 16(2) of the Income Tax Assessment Act provides:

"(2) Subject to this section, an officer
shall not either directly or indirectly, except
in the performance of any duty as an officer,
and either while he is, or after he ceases to be
an officer, make a record of, or divulge or
communicate to any person any information
respecting the affairs of another person
acquired by the officer as mentioned in the
definition of 'officer' in sub-section (1)".

32. By a majority (Bowen C.J. and Jackson J., Fox J. dissenting), the question was answered in the affirmative. Since the prohibition in s.16(2) of the Income Tax Assessment Act was no more absolute than the prohibition in r.283(1), it must follow that the provisions of s.38 apply here. I propose to make a declaration to that effect.

33. It should be mentioned that it was also submitted on behalf of the applicant that Mr. Smith had not made a valid request under the Act for access to the third category of documents referred to in his letter. By s.15(1) of the Act, a person who wishes to obtain access to a document "may make a request in writing to the agency for access to the document". It was argued for the applicant that, in framing his third request, Mr. Smith failed to comply with s.15(1) because he called for information rather than documents.

34. In my opinion, the argument should be rejected. It will be noted that s.15(1), by using the word "may", is expressed facultatively. No particular form of request having been prescribed, a request for access may be made in writing in any appropriate form (cf. Downey v. Pryor [1960] HCA 49; 103 CLR 353 per Kitto J. at p 362). Mr. Smith's letter should, of course, be read as a whole. In particular, the third request should be read in the context of his opening words which speak of both information and documents. The letter should also be read in the context of an attempt to obtain material under the Act. In my opinion, viewed in context and read as a whole, Mr. Smith's third request is reasonably capable of construction as a request for access to documents containing information of the kind specified.

35. Finally, it should be noted that, prior to the hearing of the present application, Mr. Smith and Brisbane TV Limited indicated that, although they pressed their claim for access, they did not wish to be present at the hearing.

36. I propose to make declarations to reflect these reasons for judgment. It is not necessary that I deal with any consequential relief at this stage except by reserving liberty to apply. As to costs, it is appropriate that the partial success of the applicant should entitle her to receive one-half of her costs.

37. I propose to make the following orders:

l. Order, until further order, that publication of the
contents of the confidential appendices to the reasons
for judgment be restricted to the parties and their
advisers.

2. Declare that, by reason of the provisions of s.l2(2) of
the Freedom of Information Act, a person is not entitled
to obtain access to documents Nos. 1 to 36 inclusive
mentioned in the second confidential appendix.

3. Declare that none of the subject documents, being the
documents described in the second confidential appendix,
are exempt under s.41(1) of the Act.

4. Declare that none of the subject documents are exempt
under s.43(1)(c)(i) of the Act.

5. Declare that the subject documents are exempt documents
under s.38 of the Act by reason of the application of
r.283(1) of the Air Navigation Regulations.

6. Order that the respondent pay one-half of the
applicant's costs of the application.

7. Reserve liberty to any party to apply for further relief
as she or he may be advised on three days' notice.