How To Write A Public Law Report For 2012

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1 financial institutions energy infrastructure, Mining and commodities Transport TECHNOLOGY AND INNOVATION Pharmaceuticals and life sciences News and insights March 2012 Public law report Welcome to the March edition of the Public law report for 2012, which provides essential updates for public sector managers and government lawyers on legislative and policy developments, as well as notes on important decisions by courts and tribunals. This edition contains an overview of recent judgments and their future implications including the constitutional validity of the provision of grants to schools or religious institutions, how discrimination on the grounds of political activity is dealt with under different pieces of legislation, the approach by courts to interpreting clauses in government subcontracts and the taxation obligations of government owned corporations. We also look at a recent appeal discussed in the December 2011 issue of the Public law report in relation to the causative link between exposure to asbestos and mesothelioma. We outline ways in which government agencies can use alternative dispute resolution to achieve financial efficiencies and the proper processes that government agencies and departments should undertake to manage and deal with long term employment issues and procedural fairness when making determinations. Finally, this edition includes important updates in relation to privacy law, recent amendments to the public access legislation as well as changes to the government procurement structure in NSW. n Contents 02 Court considers constitutional validity of providing development funding for religious purposes 04 Managing long-term employment issues 05 Amaca v King update: Court of Appeal upholds jury verdict 07 Discrimination on the grounds of political activity in the Victorian Public Sector 09 Disputing efficiency 11 Subcontractors and Defence contracts 13 Court invalidates determination of agricultural land in relation to a mining lease application 15 NSW: GIPA Act update 17 Flack the first GIPA decision 19 Privacy update: recent cases and federal reforms 20 The tort of invasion of privacy: what are its elements and when would it apply? 22 Death and taxes not certain for government owned corporations 24 Proposed reforms to government procurement in NSW 25 High Court clears the way for mesothelioma cases

2 Court considers constitutional validity of providing development funding for religious purposes On 25 November 2011, the NSW Court of Appeal handed down its decision in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363. In this case, the Court considered an application for leave to appeal and whether there were grounds to challenge the constitutional validity of Commonwealth legislation enabling a grant of funds for the construction and use of a religious school, and whether there were grounds for claims in nuisance and negligence associated with the development. Background These proceedings involved an appeal from the decision of Justice Rein in the Supreme Court of NSW in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2010] NSWSC 1312 (earlier decision). The earlier decision concerned an application to the Court by the Hoxton Park Residents Action Group Inc (Hoxton Park) to prevent the construction and operation of an educational facility and place of worship (Facility) on land owned by the Australian Federation of Islamic Councils (Federation) and leased by the Malek Fahd Islamic School Ltd (School). In the earlier decision, his Honour had dismissed the proceedings on the basis that Hoxton Park was unable to establish a reasonable cause of action. Hoxton Park was granted leave to appeal to challenge the constitutional validity of Commonwealth legislation through which the Commonwealth provided a grant to the Federation and School for the construction and operation of the Facility. Funding for the Facility was obtained from the Commonwealth by a grant made under the Schools Assistance Act 2009 (Cth) (SA Act), and distributed to the Federation and School pursuant to State legislation. Hoxton Park argued that the Commonwealth s grant was invalid on the basis that it contravened section 116 of the Constitution, which prohibits the Commonwealth from legislating in respect of religion. Additionally, the Applicants sought a declaration that Liverpool City Council (Council) had no authority to approve the development application for the Facility as section 220 of the Local Government Act 1993 (NSW) (which prescribes the legal status of councils) was invalid. The effect of section 220, amongst other things, is to prevent a council from being characterised as a constitutional corporation. Hoxton Park also alleged nuisance and negligence on the basis that the Federation and School created a public nuisance due to the construction of the Facility and from conduct which would ultimately result from the use of the Facility (and land) once constructed. Hoxton Park also argued that the Federation and School engaged in a hazardous activity upon which the Facility was being constructed, causing loss and damage to surrounding residents. During the appeal, the Court considered a number of issues which had been raised in the earlier decision, including whether: it is constitutionally valid for Commonwealth or State legislation to provide for funding for religious purposes, it is valid for State legislation to establish the Council, and claims in nuisance or negligence can be made for activities undertaken on the land pursuant to the development consent. Judgment The Court considered whether, to the extent that such a grant was permitted by the SA Act, the SA Act was invalid due to contravening the constitutional prohibition on Commonwealth legislation in relation to religion under section 116. The Court further considered whether the State legislation, which gave effect to the grant, was also invalid due to it also contravening section 116. The Court held that due to uncertainty in the law as to whether the Commonwealth can validly provide funding for religious purposes, the issue was a proper matter for challenge (at 35). The Court stated that in the earlier decision, the Judge had erroneously struck out the challenge to the Commonwealth law which affected the grant to the Federation and School (at 37). In rejecting Hoxton Park s claim, the Court upheld the earlier decision that a State law which establishes a religion or interferes with a religion is not repugnant to section 116, 02 March 2012

3 on the basis that the legislative power of a State is not limited by section 116. The Court also ruled that even if section 116 was held to govern State legislative power, if the Commonwealth legislation did not contravene section 116, neither did the State legislation (at 40). Further, the Court held that the Federation and School were unable to challenge the lawful existence of the Council on the grounds that section 220 was invalid as: there is no constitutional restraint on the legislature creating a collective group identified as a body politic (at 57), and the term body politic in section 220 of the Local Government Amendment (Legal Status) Act 2008 (NSW) establishes a collective body capable of exercising statutory functions, and the consideration of development applications in respect of land with specific geographical boundaries (at 57). In relation to the claims in nuisance and negligence, the Court found that while the claims for nuisance and negligence in this case were not well executed, these issues could be pleaded again. The Court held that: the Supreme Court of NSW has jurisdiction to deal with claims in nuisance and negligence in relation to an activity approved under a development consent (at 62), and compliance with a development approval is not necessarily a defence against any claim in nuisance or negligence. Whether a grant of development approval provides a defence to a claim in nuisance depends upon the evidence specifically relating to the case (at 68). Implications There may be further challenges under section 116 of the Constitution in relation to the provision of grants to schools or religious institutions under the SA Act. In determining whether a conflict exists, the Court will consider whether the Commonwealth law: establishes a religion, imposes a religious observance, or prohibits the free exercise of any religion (section 116 of the Constitution). State governments are not subject to restrictions under section 116 of the Constitution, however should be aware of these constraints on the Commonwealth government. This case also confirms that no constitutional restraint exists on the creation by the legislature of a collective group identified as a body politic capable of exercising statutory functions and considering development applications, and that development consents are not necessarily a defence against any claim in nuisance or negligence. n For further information contact: Jacinta Studdert Partner Tel jacinta.studdert@nortonrose.com Amelia Dixon-Weidner Associate Tel amelia.dixonweidner@nortonrose.com Nicole Woods Clerk Tel nicole.woods@nortonrose.com March

4 Managing long-term employment issues In Eriksson v The Commonwealth [2001] FMCA 964, the court considered whether the termination of an employee s employment constituted adverse action. Background Meeli Kersti Eriksson (the Employee) was employed by the Department of Health and Ageing (the Department). In 2002, the Employee suffered from a work related injury and was on restricted duties until 2006 (with some periods of total incapacity), and then certified as unfit for all work from 1 December After unsuccessful attempts to return the Employee to the workplace, the Department sought to have the Employee retired on the ground of medical invalidity, which required an Invalidity Retirement Certificate to be issued by Australia Reward Investment Alliance (ARIA), as Trustee of the Public Sector Superannuation Scheme. On the basis of medical opinion obtained by ARIA, the Invalidity Retirement Certificate was granted in The Employee was subsequently notified that her employment would be terminated in accordance with section 29(3)(d) of the Public Service Act 1999 (Cth) (PS Act). Section 29(3) of the PS Act provides: For an ongoing APS employee, the following are the only grounds for termination:... (d) inability to perform duties because of physical or mental incapacity; The Employee sought reconsideration of some of the procedural decisions preceding termination and the Department delayed the termination to allow her time to present new evidence on three occasions. Notwithstanding the Department s decision to delay a decision to terminate employment, the Employee failed to present the required additional evidence. The Employee s employment was ultimately terminated with effect from 8 January The Employee made an adverse action claim to Fair Work Australia pursuant to the Fair Work Act 2009 (Cth) (FW Act) on the basis that her employment had been terminated because of a workplace right (section 341) and/or her disability (section 352). The Employee claimed that she had exercised her workplace right to: seek an assessment to undertake a rehabilitation program, and have the retirement decision reconsidered on the basis that she had become fit to return to work. Judgment In this case, Federal Magistrate Burnett found that the termination of the Employee s employment did not constitute adverse action. The action to terminate was not taken because of the Employee s workplace right to request an assessment to undertake a rehabilitation program under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (SRC Act) or her right to request reconsideration of the Invalidity Retirement Certificate. This was clear on the facts, as the Court found that the history of events demonstrated that the termination decision made by the Department predated any of the actions taken by the Employee in pursuing her workplace rights, particularly as the Department had notified the Employee in early 2007 that it was intending to retire her on grounds of invalidity. Importantly, his Honour noted that: Nothing changed between the time the respondent first decided to retire the applicant on invalidity grounds and the actual dismissal giving effect to that decision. Further, the Employee s request to obtain a rehabilitation program under the SRC Act was only sought after the decision to terminate employment had already been made. Implications This is a useful decision that demonstrates that a proper process undertaken to manage and deal with long term employee issues, including absence from work, will not likely result in adverse action. It is important for Departments and Agencies to: follow procedures and policies, ensure that employment decisions are made for reasons unrelated to what might be claimed to be a workplace right, and 04 March 2012

5 ensure that there are records evidencing when decisions are made for the management of employees and for what reasons. n For further information contact: Sarah Ralph Partner Tel sarah.ralph@nortonrose.com Nancy Mudditt Associate Tel nancy.mudditt@nortonrose.com Amaca v King update: Court of Appeal upholds jury verdict The Victorian Court of Appeal has handed down its decision in Amaca Pty Ltd v King [2011] VSCA 447, an appeal against the Supreme Court jury verdict discussed in the December 2011 issue of the Public law report. The decision deals with similar issues of causation in mesothelioma cases to those considered by the High Court in Amaca Pty Ltd v Booth [2011] HCA 53 (Booth) and the jury s substantial award of damages, amongst other issues. Background The background facts to this matter are set out in the article Issues in causation in asbestos case in our December 2011 issue of the Public law report. In essence, Mr King alleged that Amaca had negligently exposed him to asbestos fibres for approximately 7 hours at a factory operated by Amaca (Amaca exposure), as a result of which he developed mesothelioma. Mr King had not had any other known exposure to asbestos, except for exposure to asbestos fibres present in the environment generally (Background exposure). A central issue during trial was whether Mr King s mesothelioma was caused by the Amaca exposure or the Background exposure. The difficulties surrounding proof of causation in mesothelioma cases are set out in High Court clears the way for mesothelioma cases, in this issue of the Public law report. In essence, medical science cannot explain with certainty the mechanism by which mesothelioma is caused or develops. This creates difficulties for plaintiffs who have been exposed to asbestos from more than one source in establishing a causal link between their mesothelioma and the negligence of one or more defendants. After unsuccessful attempts by Amaca to have the trial proceed without a jury, and then for the jury verdict to be set aside, judgment was entered for Mr King in accordance with the jury s verdict in the amount of $1,150,000, which included $730,000 for pain and suffering and loss of enjoyment of life. Amaca appealed the decision on a number of grounds, including that Mr King had failed to establish a causal link between Amaca s negligence and his mesothelioma and that the general damages award was too high. On 22 December 2011, Nettle, Ashley and Redlich JJA handed down a joint decision in which they rejected each of Amaca s grounds of appeal. The decision was handed down just over one week after the High Court handed down its decision in Booth, and it appears the Court of Appeal relied heavily on the High Court s reasoning in Booth when determining the appeal. Causation A number of Amaca s grounds of appeal related to the contention that the evidence presented at trial only established that the Amaca exposure increased Mr King s risk of contracting mesothelioma and therefore was not capable of proving causation. In considering causation, the Court of Appeal quoted extensively from the majority decision in Booth, and particularly the judgment of Chief Justice French. Whilst reiterating that Mr King had to establish that the Amaca exposure was a cause of his mesothelioma and did not merely increase his risk of contracting the disease, the Court pointed out that evidence of risk can be relevant to causation. Consistent with the March

6 decision in Booth, the Court explained that in certain circumstances, evidence of increased risk may permit, an appropriate expert having regard to the nature and incidents of the correlation, to infer that the defendant s conduct was a cause of the injury. However, in reviewing the evidence presented at trial, the Court of Appeal was not satisfied that the evidence only established that the Amaca exposure increased Mr King s risk of contracting mesothelioma. In particular, the Court noted that Mr King s expert witnesses opined it was more likely than not that the Amaca exposure was a cause of Mr King s mesothelioma or made a significant contribution to its development and that they justified their opinions on the basis that: 1 according to current scientific knowledge, all inhaled asbestos fibres have something to do with the progress or development of mesothelioma, 2 very low exposures have been implicated as a cause of mesothelioma, 3 whatever the level of the Amaca exposure, it increased Mr King s risk of contracting mesothelioma because any exposure to asbestos increases the risk of developing mesothelioma, and 4 the latency period of about 40 years between the Amaca exposure and Mr King s first symptoms of mesothelioma was consistent with a causal relationship between the two events. Amaca did not call evidence from any expert medical clinicians, and instead relied on epidemiological evidence to the effect that it was statistically much more likely that Mr King s mesothelioma was caused by the Background exposure than the Amaca exposure. After noting that Mr King s experts gave consideration to the particular features of [Mr King s] case, which included the only competing explanation for the disease and the latency period, the Court of Appeal held that the jury was entitled to accept the evidence of Mr King s experts to resolve the issue of causation in his favour. Damages As noted above, the jury awarded Mr King damages of $1,150,000, which included $730,000 for non-economic loss. To put this in context, under the Wrongs Act 1958 (Vic), the current maximum amount that may be awarded to a claimant in Victoria for non-economic loss is approximately $420,000. Pursuant to the Wrongs (Part VB) (Dust and Tobacco-Related Claims) Regulations 2006 (Vic), this maximum amount does not apply to damages for asbestos dust-related injuries. Further, by way of comparison, in 2010, the NSW Dust Diseases Tribunal awarded Mr Booth, who also suffered from mesothelioma, the sum of $326,640 for both economic and non-economic losses. In its appeal, Amaca argued that an award of $730,000 for non-economic loss was so high that no reasonable jury properly instructed, and with all due attention to the evidence, could arrive at it. In support of its argument, Amaca referred to a number of mesothelioma cases where the award of general damages was significantly less than $730,000, including the NSW Court of Appeal decision in Simon Engineering (Australia) Pty Ltd v Brieger [1990] NSWCA 165, where the award of $85,000 for general damages was considered too high and reduced to $60,000 on appeal. In considering Amaca s arguments, the Court of Appeal identified more recent cases where it was probable that the amount awarded for non-economic loss in mesothelioma cases was in the vicinity of $500,000, but accepted that it was likely that there had never been an award of general damages of as much as $730,000 in a mesothelioma case. The Court also acknowledged that there is a significant gap between sums awarded by judges in other States and the sum awarded by the jury in Mr King s case. Nevertheless, the Court of Appeal concluded that the $730,000 awarded to Mr King for general damages was not beyond what a reasonable jury could arrive at. In deciding this issue, the Court noted that awards of damages have increased significantly over the past 10 to 20 years and commented: inasmuch as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago and, at the same time writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past? 06 March 2012

7 Implications The Court of Appeal s decision in King makes it clear that any exposure to asbestos, regardless of how small, may be considered as causative of a plaintiff s mesothelioma, despite medical science s inability to explain precisely the way in which that exposure caused or contributed to the disease. Also, with the jury s substantial award of damages being upheld, the Court of Appeal s decision demonstrates how awards of damages for non-economic loss can vary significantly from plaintiff to plaintiff, between different jurisdictions and over time, especially where jury verdicts are involved. This highlights the need for practitioners to stay in touch with general community sentiments regarding the value of enjoyment of life in order to provide clients with realistic quantum assessments and claim reserves. On the basis of the Court of Appeal s decision, it is to be expected that the settlement expectations of plaintiffs in Victoria (and even other states) suffering from mesothelioma will remain significantly increased. The decision may also provide an incentive for plaintiffs in other States who can establish a jurisdictional connection to Victoria to pursue their claim in Victorian courts. n For further information contact: David Guthrie Special Counsel Tel david.guthrie@nortonrose.com Allison Hunt Associate Tel allison.hunt@nortonrose.com Discrimination on the grounds of political activity in the Victorian Public Sector On 16 December 2011, the Victorian Civil and Administrative Tribunal (Tribunal) made its decision in Hakki Suleyman v The Speaker of the Legislative Assembly and the President of the Legislative Council of the Parliament of the State of Victoria [2011] VCAT The Tribunal dismissed the complaint made by Mr Hakki Suleyman (Suleyman), a former Electorate Officer, and held that his employers, the Speaker of the Legislative Assembly and the President of the Legislative Council of the Parliament of the State of Victoria (Respondents), had not breached the Equal Opportunity Act 1995 (Vic) (EO Act) in terminating Suleyman s employment. Rather than expand the law in the area of discrimination on the grounds of political activity, the Tribunal s decision highlights the difficulties that complainants will face in pursuing this type of claim under the EO Act jurisdiction. acted for the Respondents in this matter. Background Suleyman was one of the individuals named in the well publicised report in May 2009 by the Victorian Ombudsman into allegations of misconduct at Brimbank City Council, in Melbourne s western suburbs (Ombudsman s Report). The allegations attracted significant adverse media attention for Suleyman and then government Minister, Justin Madden MP, the Member of Parliament for whom Suleyman worked. While an external investigation conducted on behalf of the Department of Parliamentary Services (as delegate for the Respondents) determined that Suleyman had not engaged in misconduct, it found that he could no longer perform the inherent requirements of his electorate officer position for Mr Madden because of the significant adverse media attention and the fact that the relationship between Mr Madden and Suleyman had broken down. The Respondents terminated Suleyman s employment on 5 August March

8 Suleyman brought a complaint in the Victorian Human Rights and Equal Opportunity Commission, which was then referred to the Tribunal, claiming that that the Respondents had discriminated against him (by terminating his employment) because he had engaged in lawful political activity, a protected attribute under section 4(1) of the EO Act (Complaint). Suleyman alleged that his lawful political activities included his involvement with matters associated with Brimbank City Council, notwithstanding that he was not an elected official, and that he had denied to the Ombudsman that he had in fact engaged in such conduct. This alleged conduct included that Suleyman had exerted significant influence over council business and had been fighting for control of the Council. Following a part-heard strike out application brought by the Respondents in August 2010, Suleyman amended his Complaint to plead that the Respondents presumed that he engaged in lawful political activity, based on matters raised in the Ombudsman s Report and in the media articles where it was reported, rather than relying on the truth of the matters raised in the Ombudsman s Report, (section 7(2)(d) of the EO Act provides that discrimination on the basis of an attribute includes discrimination on the basis that a person is presumed to have that attribute or to have had it at any time ). Suleyman also amended his complaint to allege that his participation in the Ombudsman s investigation constituted lawful political activity under the EO Act. The Tribunal s Decision In dismissing the Complaint, Tribunal Vice President Judge Kings held that neither of the Respondents presumed or assumed the allegations about Suleyman, in the Ombudsman s Report or in the media articles, were true. Suleyman had no direct evidence that such a presumption was held or existed. Given that the Tribunal found that there was no evidence that the Respondents presumed that Suleyman engaged in political activity, it did not make a specific finding as to whether the matters in the Ombudsman s Report or in the various media articles were capable of constituting political activity. The only finding the Tribunal made in relation to political activity was that Suleyman s participation in the Ombudsman s investigation did not constitute political activity, as the participation was required by law. The Tribunal did not further consider whether the test for direct discrimination had been made out by Suleyman, including the Respondents arguments with regard to the comparator test and whether an employee with political activity in Suleyman s situation would be treated less favourably than an employee without political activity. In relation to the complaint of indirect discrimination, the Tribunal held that the Respondents did not impose a requirement on Suleyman that he not attract media attention or adverse media attention. Implications As the Tribunal s decision turned almost entirely on the evidence, it did not provide any significant new law on the attribute of political activity or discrimination under the EO Act. In some respects, this demonstrates a missed opportunity for the Tribunal to provide guidance as to what conduct, particularly in the public sector, will constitute political activity. Similarly, the Tribunal did not specifically address the submission by Suleyman s Counsel that the Tribunal should follow the recent decision of the Full Federal Court in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 (Barclays) in determining what was the real reason for the Respondents conduct in terminating Suleyman s employment. Vice President Judge Kings did not comment in the decision as to whether this was the appropriate approach under the EO Act (the decision in Barclays is in relation to the General Protection provisions under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act)), but found that, based on the evidence, the true reasons for the Respondents conduct was genuine and not based on a presumption that Suleyman had engaged in the matters alleged in the Ombudsman s Report. The decision demonstrates the stark difference between discrimination claims under the EO Act as compared with General Protection claims (including discrimination claims) under the FW Act. While it may appear that 08 March 2012

9 the EO Act provides complainants with greater scope by being able to claim a presumption of a protected attribute, it appears that, in most cases, there will be an inherent difficulty for complainants to establish whether a respondent did in fact presume that a complainant has a protected attribute, as the onus is on the complainant to prove this, as compared with General Protection claims, where a reverse onus applies and the principles in Barclays are currently good law (the decision of the Full Court in Barclays is the subject of a pending appeal to the High Court of Australia). Given these difficulties, it may be that complainants who allege discrimination on the grounds of political activity will be reluctant to proceed under the EO Act, and will instead reshape their complaint under legislation such as the FW Act, if an appropriate attribute can be established. n For further information contact: Sarah Ralph Partner Tel sarah.ralph@nortonrose.com Adrian Wong Senior Associate Tel adrian.wong@nortonrose.com Disputing efficiency Driven by the Gillard Government s commitment to returning the federal budget to surplus in 2012/13, all Government agencies are facing increasing pressure to achieve financial efficiencies. Against that backdrop, how agencies recognise, prioritise, resource and manage disputes, both internal and external, will be critical if agencies are to meet the new efficiency dividend targets. This is even more relevant in an environment where the costs of mega-litigation pose an almost insurmountable drain on an agency s budget and resources. For anyone who has been involved in civil litigation, they will know that it can be a lengthy and costly process. In the current climate, the strategic use of Alternative Dispute Resolution (ADR) can enable the management of disputes to be targeted for cost savings without compromising the results desired. The key to achieving this is the identification, management and resolution of disputes at an early, pre-courtroom stage. The strategic use of ADR in organisations is equally relevant to both the private and public sectors, however, as the single biggest litigator in the federal civil justice system, the Australian Government is well placed to feel the direct benefits of such strategies. In the context of the Gillard Government s recent increase of the efficiency dividend to 4% in the 2012/13 financial year, Australian Government agencies of all sizes are in a unique position to implement effective systems to assist in meeting efficiency targets and avoiding impact on program budgets. Early identification of disputes At the outset, it is important to define what is meant by a dispute. Many see the commencement of court proceedings by a third party as being the first step of a dispute, however, the existence of a dispute can be recognised as soon as one party s intentions or requirements begin to conflict with those of another. Early identification of a dispute by an agency, and nipping the problem in the bud early, can result in significant cost savings flowing to the agency involved. The concept of ADR encompasses a broad range of methods through which disputes can be resolved without the final determination of a court or tribunal. At one extreme, the mere placing of a phone call by the relevant line manager in an agency to a disgruntled party can lead to a potential dispute being extinguished before it evolves into a more conventional complaint. At the more formal end of the ADR spectrum, structured forums such as mediations or arbitrations allow each of the disputing parties the opportunity to air the basis of their dispute and help to narrow the issues. It also enables other non-financial remedies such as apologies to be considered. In many disputes involving an agency and an individual, these non-financial expressions can either resolve a dispute completely, or lead March

10 to the parties being more open to an agreed outcome. Other non-financial advantages of using ADR include the preservation and retention of important commercial relationships and a reduction in time spent by management dealing with disputes. Avoiding the costs of litigation through ADR In addition to providing opportunities for remedies not available in courts or tribunals, the strategic deployment of ADR can lead to significant cost savings for agencies, for which there are two main drivers. Firstly, the systematic adoption of ADR commonly leads to the permanent resolution of disputes earlier than can be achieved in a court or tribunal. The resulting cost savings are achieved through the reduced involvement of lawyers and other consultants who commonly use time-based methods of calculating fees. By resolving a dispute sooner, especially through use of a systematic tiered-dispute management process, the length and scope of an agency s involvement with its lawyers and expert witnesses can be greatly reduced, leading to the agency ultimately incurring fewer fees. The second means by which ADR leads to cost savings is through the avoidance of the need for compliance with inherently expensive court and/or tribunal procedure. In any litigated matter, there are steps that each party is required to take to ensure that the dispute is in a position to be decided by a judge, magistrate or tribunal member. Such steps involve the preparation of court documents, the preparation of evidence and importantly, the disclosure of all documents in each party s possession relevant to the dispute, known as discovery. Each of these steps involves the services of both solicitors and barristers, as well as the time of many within an organisation. The time consuming process of discovery can, in many larger cases, lead to the parties incurring millions of dollars in professional fees to complete the process. Magnifying the inherent costs of litigation is the underlying principle that costs follow the cause in litigation, meaning that an unsuccessful party is commonly required to pay the costs of a successful opponent. Cost savings through effective planning While the benefits of ADR processes over litigation can almost be considered a given in recent times, empirical data is notoriously difficult to come by. The cost savings that can be achieved through the strategic use of ADR have, however, been illustrated in several recent studies, the most notable of which in the government context is the UK Department of Justice Annual Pledge Report for 2008/9, released in March The report takes its name from the Lord Chancellor s pledge to commit all UK Government departments and agencies to using ADR to resolve disputes where appropriate and provides insight into how ADR is being applied across the UK Government. The report revealed that across all UK Government departments and agencies in the 2008/2009 financial year, ADR had been used in 314 cases with 259 being settled (a success rate of 82%). Critically, the cost savings for the UK taxpayer arising from these settlements was estimated to be 90,200,000. The Gillard Government is keenly aware of the efficiencies which can be attained through increased use of ADR, with the former Attorney-General, The Hon Robert McClelland, leading a whole of Government shift away from litigation and towards actively and effectively engaging with disputes early and in a strategic way. At the centre of the Attorney-General s policy in this area is the foreshadowed requirement for all Australian Government agencies to develop and regularly review dispute management plans which will set strategies for agencies to respond to, assess and resolve disputes in a timely and cost effective manner using ADR. Critical to the successful development and implementation of these plans is an in depth understanding of the kinds of disputes that commonly affect a particular agency and how they originate. An effective dispute management plan will involve more than just lawyers within an agency, with staff in line areas uniquely placed to identify disputes before they develop into costly battles. To support operational staff in this endeavour, it is important that they receive adequate training to foster awareness of common warning signs and how best to address them. Communication of identified disputes to senior management is also important in order to address each dispute in the most appropriate way and regular monitoring of such reports will be key to ensure potential disputes are identified early. Systematic processes to ask staff whether they are aware of any disputes, or the seeds of dispute, are a useful way of encouraging this form of upward information flow. As demonstrated in the UK, an increased awareness and use of ADR as a form of dispute management in Australian Government agencies will likely lead to considerable cost savings for individual agencies and the Government as a whole. Through the development and implementation 10 March 2012

11 of effective dispute management plans, dispute management is an area which can be targeted for cost savings to assist agencies in meeting the constraints of the increased efficiency dividend. The resulting savings to the Australian taxpayer in addition to the various non-financial benefits of ADR are important reasons why targeted dispute management plans ought to be developed carefully and implemented across agencies. n For further information contact: Ben Allen Partner Tel ben.allen@nortonrose.com Hamish McNair Associate Tel hamish.mcnair@nortonrose.com Subcontractors and Defence contracts In BAE Systems Australia Ltd v Cubic Defence New Zealand Ltd [2011] FCA 1434, the Federal Court was required to consider whether a purported termination for convenience of only part of a subcontract was valid. The Court also considered whether or not certain implied terms could be excluded by the use of an entire agreement clause. Background The respondent, a defence contractor, entered into a contract (the Prime Contract) with the Department of Defence for the supply, operation, support and maintenance of certain information and simulation systems for a training program. It subsequently entered into a contract with the applicant (the Subcontract) for the provision of supplies and support services in relation to the program. Both contracts provided for works relating to the program to be divided into two phases: an acquisition phase, which had already been completed, and an operate and support/manage (OSM) phase, which was ongoing. The respondent and the Commonwealth entered into discussions with a view to separating the two phases so that the OSM elements under the Prime Contract could be made the subject of an Australian Standard for Defence Contracting (ASDEFCON) template. The applicant and the respondent began concurrent negotiations about a new flow-down version of the Subcontract to reflect the changes. However, there was disagreement between the parties and the negotiations subsequently broke down. In late October 2011, the respondent notified the applicant that the Commonwealth had terminated for convenience that portion of the Prime Contract that includes all Operations Support and Maintenance (O/S&M) requirements and purporting to terminate for convenience all of the corresponding O/S&M requirements in the Subcontract. In doing so, the respondent relied on clause in the Subcontract which provided that it may terminate the Contract or reduce the scope of the Contract by notifying the Subcontractor in writing in certain circumstances, including where it had received a corresponding notice to that effect from the Commonwealth. When asked by the applicant to provide evidence of a corresponding notice by the Commonwealth, the respondent provided the applicant with a copy of a contract change proposal deed (Deed), executed by the respondent and the Commonwealth. The Deed stated that its purpose was to reduce the scope of the Prime Contract and to reflect the parties intentions that the OSM requirements be deleted from it and form the basis of a separate performance based ASDEFCON contract. The applicant issued proceedings in the Federal Court claiming a declaration that the respondent s notice purporting to terminate the Subcontract for convenience was unlawful and invalid and that the respondent was therefore in breach of the Subcontract. March

12 The applicant s case relied on two arguments, one based on an alleged breach of express terms in the Subcontract and one based on a breach of certain implied terms. Under the former, it was argued that the respondent was only entitled to rely on clause to terminate the Subcontract for convenience where it had received a corresponding notice to the same effect from the Commonwealth but that it had not received such a notice. Instead, the applicant claimed that the Deed and the new ASDEFCON contract should be characterised as either a reduction in the scope of the contract or a varied form of the contract. The applicant further claimed that certain terms were implied into the Subcontract, which had been breached by the respondent. These included implied terms that neither party would by its own motion prevent the performance of the Subcontract, that neither party would do anything to destroy the efficacy of the bargain and that each party would do all things to enable the other to have the benefit of the Subcontract. Judgment With respect to the applicant s first argument, the Court considered the construction of the termination for convenience clause in the Subcontract. It found that the clause entitled the respondent to either terminate for its convenience or, alternatively, reduce the scope of the Subcontract but that this power was conditional on the respondent receiving a corresponding notice to that effect from the Commonwealth (at [40]). The question for the Court was whether the Deed between the respondent and the Commonwealth could be characterised as being a corresponding notice of termination. The Court reviewed the Deed and the correspondence between the respondent and the Commonwealth giving rise to it in light of the requirements of the clause. It was held that while the clause referred to notifying the Subcontractor in writing, no specific form for that notification was required and, as a result, a corresponding notice from the Commonwealth may be constituted by a Deed to which the recipient of the notice is a party (at [39]). In characterising the Deed, the Court considered both the written provisions of the Deed and the substance of what was effected by it. Importantly, Besanko J noted that: the Deed records in writing an act the Commonwealth considered that it was taking. Taking the words at face value, the Commonwealth considered that it was acting under clause of the Prime Contract to reduce the scope of the Prime Contract (at [44]). Turning to the substance of what was effected by the Deed, the Court considered whether or not it could be characterised as a termination, variation or reduction in scope of the Prime Contract. The applicant had submitted that, while couched in terms of clause , the substance of the Deed was in fact to simply vary the terms of the Prime Contract which meant that it could not be relied upon by the respondent. The Court referred to previous authorities in Morris v Baron & Co [1918] AC 1 and Tallerman & Co Pty Ltd v Nathan s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 regarding the distinction between variation and rescission. Applying the reasoning from these authorities, the Court held that the Deed had effected a reduction in scope of the Prime Contract rather than a variation of its terms as any new obligations between the parties were now dealt with in a new free-standing contract. This was so even though minimal substantive obligations remained under the Subcontract as a reduction to nil is nevertheless a reduction in the scope of the contract (at [51]). As a result, despite not receiving a formal notice from the Commonwealth and there being no termination for convenience, the respondent s actions in issuing the notice to the applicant were held to be consistent with clause as the clause also covered reductions in scope. In relation to the applicant s implied terms argument, the Court noted that the Subcontract contained an Entire Agreement clause, which provided that the Subcontract document was an exclusive statement of the parties contractual obligations. Referring to the High Court decision of Hart v Macdonald (1910) 10 CLR 417, which had held that an entire agreement clause did not preclude the implication of a term unless there were express words to that end, the Court found that the relevant clause did not go far enough to exclude the implied terms. Ultimately, the Court held that the respondent had not breached the implied terms pleaded by the applicant because: (1) there was no evidence that the respondent had any option other than to enter into the Deed and the new ASDEFCON contract with the Commonwealth, (2) the failed negotiations meant that the benefit of the new ASDEFCON terms could not be 12 March 2012

13 passed on to the applicant by simply varying the terms of the Subcontract and (3) any terms of the Subcontract, including implied terms, were qualified by the rights and obligations under the termination for convenience clause. Implications The decision is of interest for government contractors who look to replicate or insert back-to-back provisions in their subcontracts because it provides a good example of how courts will interpret such provisions. Interestingly, the Court appears to have taken a practical approach to the requirement for corresponding notices under flowdown termination for convenience clauses. It appears that the requirement of corresponding notification in writing will not necessarily require a formal notice unless there are express words stating this. Furthermore, it appears that even though notification provided to a subcontractor is expressed incorrectly, for example as a termination when it is in fact simply a reduction in scope, this will not be invalid provided that the substance of what was intended in the notice is covered by the relevant clause. The case is also relevant in that it reaffirms the position that entire agreement clauses will not preclude the implication of terms unless those terms are explicitly excluded. Contracting parties should be mindful of this fact and should ensure that if they wish to exclude implied terms such as the obligation not to undermine the efficacy of the contract or the duty of cooperation then they should do so expressly in the contract. n For further information contact: Adrian D Amico Partner Tel adrian.damico@nortonrose.com Nick Beresford-Wylie Lawyer Tel nick.beresfordwylie@nortonrose.com Court invalidates determination of agricultural land in relation to a mining lease application On 8 November 2011, Moore AJ handed down his judgment in the Land and Environment Court in Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department of Trade and Investment, Regional Infrastructure and Services [2011] NSWLEC 191. The Court examined whether a determination of agricultural land under the Mining Act 1992 (NSW) (Mining Act) by the Director-General of the Department of Industry and Investment NSW (Agricultural Division) (Director-General) in relation to the granting of a mining lease, was valid. The decision makes it clear that where any procedure is set out in legislation, a decision-maker must, before making a determination, apply the principles of procedural fairness, unless expressly or impliedly displaced. Should procedural fairness not be afforded, there is a risk that the determination will be invalidated. Background On 20 July 2004, Moolarben Coal Mines Pty Ltd (Moolarben) lodged an exploration licence application and was subsequently granted a licence which operated for five years. On 21 April 2009, Moolarben lodged a mining lease application over part of the land that was subject to the exploration licence. Part of the land that was the subject of the mining lease application was owned by Ulan Coal Mines Pty Ltd (Ulan). Ulan objected to the grant of a mining lease on the basis that their land was agricultural land (Land) for the purpose of the Mining Act. The Mining Act provides that a mining lease cannot be granted over the surface of land determined to be agricultural land without the consent of the landholder. Based upon a review of relevant background information (including maps and historical use information), March

14 landholder interviews and a detailed field inspection, the Director-General determined the Land was agricultural land (Determination). Accordingly, a mining lease could not be granted over the Land without Ulan s consent. Moolarben challenged the validity of the Determination on four grounds. Specifically, Moolarben asserted that: 1 it was denied procedural fairness as the Director-General failed to take a number of requisite steps identified in the Mining Act, including that Moolarben was entitled to know the basis of Ulan s objection, be given an opportunity to inspect the Land and respond to the Director- General s recommendation that the Land was agricultural land, 2 the Director-General failed to follow certain procedures, including: a failure to address the question of whether the Land satisfied the definition of agricultural land at the time the mining lease and exploration licence applications were lodged (as well as the 10 preceding years of both dates). In this case, the Director-General had only considered the question at the time that the exploration licence was lodged, and whether the relevant expression successful use question posed by the definition of agricultural land was misconstrued, 3 the Determination was uncertain as it did not identify the land to be agricultural land with sufficient precision, and 4 no reasonable decision-maker would have come to such a conclusion had they considered all relevant material (relying on the principle of Wednesbury unreasonableness : Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The case was decided on the outcome of the first and second grounds. Judgment The Court stated: It is well settled that the repository of a statutory power is obliged to afford procedural fairness to a person whose rights or interests may be adversely affected by the exercise of the statutory power and that position is displaced only by plain words of necessary intendment (at 30). The Court found that despite the absence of detailed processes providing a mining lease applicant with express rights to make submissions, the principles of procedural fairness applied and in this case, the Determination was found invalid on the basis that procedural fairness was not afforded (at 32 and 46). The Court held: despite various provisions within Schedule 1 of the Mining Act that identified procedural steps relating to the grant of a mining lease, there is no express or implied provision within the legislation that displaces the principles of procedural fairness, and in considering whether Moolarben had a right to be afforded procedural fairness, that: [Moolarben] was entitled to seek to secure, if lawfully possible, a lease unencumbered by any limitation as to specific areas in which it could mine and free of the attendant burden of having to obtain the consent of landholders of the specific areas. In other words, Moolarben was entitled to resist objections asserting any of the land was agricultural land and to be afforded procedural fairness in that process (at 37). The Court found that Moolarben therefore had an interest attracting procedural fairness as an applicant for a mining lease for part of the area to which its licence related (at 37). The Court considered what the principles of procedural fairness involved having regard to the statutory context and whether, based on the particular facts, procedural fairness had been provided to Moolarben. Specifically and applying various cases, the Court held (at 39 and 40): procedural fairness includes an opportunity to put information and submissions to the decision-maker in support of an outcome supporting his or her interests, and may also require an opportunity to rebut and comment on adverse material from other sources put before the decision-maker (depending on the content of the material): Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] 49 FCR 576, and circumstances may arise where adverse material not personal to the individual or party should be made available for comment: Re Minister for Immigration and Multicultural Affairs ex parte Miah [2001] 206 CLR 57. In reaching its conclusion, the Court held that the Director-General had failed to inform Moolarben of Ulan s objection, the details of the objection and provide relevant documents to allow Moolarben to submit to the 14 March 2012

15 Director-General such material in order to persuade the Director-General not to uphold the objection (at 45 and 46). The Court also found: the evidence indicated that the Director-General had failed to determine whether the Land was agricultural land at the times prescribed in the Mining Act (at 51), the failure of which led to the invalidation of the Determination (at 61), and even if there was an error in misconstruing the expression successful use, this did not provide a basis to invalidate the Determination (at 49). Despite these findings, the failure to afford procedural fairness was the basis upon which the Determination was invalidated in this case. The Court ordered that the Determination was invalid and of no effect on the grounds of a denial of procedural fairness and failure to apply procedures pursuant to the Mining Act. Implications In these particular circumstances, it is clear that under the Mining Act, the Director-General must comply with all procedural steps set out in the legislative regime and in particular Schedules 1 and 2 of the Mining Act, when making determinations. The decision highlights the importance courts attribute to procedural fairness when decisions are made by government departments and agencies as well as the interaction between this principle of administrative law and the procedures and considerations outlined in the legislation under which a decision is to be made. n For further information contact: Jacinta Studdert Partner Tel jacinta.studdert@nortonrose.com Susan Rose Senior Associate Tel susan.rose@nortonrose.com Amelia Dixon-Weidner Associate Tel amelia.dixonweidner@nortonrose.com NSW: GIPA Act update Amendments to GIPA Following the introduction of the Government Information (Public Access) Amendment Bill 2011 (NSW) (Bill) to Parliament late last year, new amendments to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) are due to commence in The Bill was passed by Parliament on 14 March and is currently awaiting assent. The amendments originated from suggestions for minor and technical reforms made by the Directors General of the nine major NSW government departments. According to the Explanatory Note to the Bill, the amendments aim to: enable parts of agencies to be treated as separate agencies for the purposes of the GIPA Act, confirm that copyright issues must be given due consideration when providing open access to information, enable refusal of access to information if the applicant has already been given the information, remove the current fees for internal review by an agency following a recommendation from the Information Commissioner, confirm that agencies may require proof of identity of the applicant, provide that there is no conclusive presumption of overriding public interest against disclosure of a spent conviction in the person convicted, clarify where legal professional privilege may be waived in an access application, clarify the timing for the recording of information in the disclosure logs of agencies and what can be included in such logs and to enable affected persons who are not access applicants to object to certain information about them being included in such logs, and March

16 make certain minor amendments, amendments in the nature of statute law revision and amendments that provide for saving and transitional matters. To give full effect to the above changes, the Bill also aims to amend four other NSW Acts: 1 it will amend the Criminal Records Act 1991 to ensure that it is not an offence for government or government agencies to make public information about a spent conviction, 2 it will amend the Privacy and Personal Information Protection Act 1998 to allow a part of a public sector agency to be treated as a separate agency for the purposes of the GIPA Act, and 3 it will make other minor amendments to the Commission for Children and Young People Act 1998 and the Privacy Code of Practice (General) Early GIPA Cases Since our last update, the very first decisions concerning the GIPA Act have been handed down by the Administrative Decisions Tribunal (ADT). In Flack v the Commissioner of Police, New South Wales Police [2011] NSWADT, the ADT denied an applicant access to information regarding an Apprehended Personal Violence Order (APVO) made by NSW Police. The ADT held that, pursuant to section 13 of the GIPA Act, the application could not be allowed due to the fact that public interest considerations against disclosure of the information outweighed the public interest in favour of disclosure. The most significant of those public interest considerations was said to be the protection of individuals witness statements contained within the police documents in question. Further details in relation to this case are available in the next article which discusses this case in detail. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, again the ADT was required to balance competing public interests. In this case, the ADT found that some of the information sought could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. This is a public interest consideration against disclosure of the information under the table in section 14 of the GIPA Act. The ADT found that deletion of the offending words from the information sought would be enough to eliminate the concern. Therefore, the applicant was given access to all of the information in the requested form, minus the deletions. Also significant in this case was the comment made regarding the role of the Information Commissioner in access to information proceedings before the ADT. Under section 105(2) of the GIPA Act, the Information Commissioner may be heard in relation to GIPA Act matters. In this case, however, submissions made by the Information Commissioner relating to public interest considerations against disclosure were not taken into account by the ADT. It was held that the GIPA Act did not intend for the Information Commissioner to make submissions on the merits of the case and that the burden of raising public interest considerations against disclosure of information lay with the respondent. n For further information contact: Ashley Tsacalos Partner Tel ashley.tsacalos@nortonrose.com 16 March 2012

17 Flack a GIPA decision The decision in Flack v Commissioner of Police, New South Wales Police [2011] NSW ADT 286 was one of the earliest reported decisions under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) after it replaced the Freedom of Information Act 1989 (NSW) (FOI Act) on 1 July The case highlights that, despite the objective of more accessible government information under the GIPA Act, decision-makers will continue to be required to weigh up important public interest considerations for and against disclosure in determining whether government information should be released. Background In January 2010, Ms Flack and her husband were each served with a provisional Apprehended Personal Violence Order (APVO), which was issued by the Local Court on application by Constable Rebecca Whitfield as a result of a neighbourhood dispute. In response to the provisional APVO, Ms Flack and her husband arranged for a subpoena to be issued upon the NSW Police which required it to produce all documents relating to Constable Whitfield s application to the Local Court. The application was subsequently withdrawn by the NSW Police and no documents were produced under the subpoena. On 26 October 2010, Ms Flack and her husband made an application for access, under the GIPA Act, to the documents which had been sought under the subpoena. The NSW Police denied the application. The information withheld was a series of witness statements and police notes which supported the application for the APVOs. The NSW Police decided that the public interest in not disclosing the information outweighed the public interest in favour of disclosure under the GIPA Act. Ms Flack applied to the New South Wales Administrative Decisions Tribunal (ADT) for review of the decision. The GIPA Act establishes a principle that there is a general public interest in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Public interest considerations in favour of disclosure are not limited. The GIPA Act does, however, provide examples of considerations in favour of disclosure. Relevant to this case, these include: where the information is personal to the person to whom it is to be disclosed, and where it could reasonably be expected to inform the public about the operations of agencies. An overriding public interest against disclosure of information is only established where, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Unlike the assessment of public interest in favour of disclosure, public interest considerations that can be considered against disclosure are specifically limited to those set out under the GIPA Act. The considerations include where information could reasonably be expected to: reveal another individual s personal information, contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW)(PPIP Act), prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency s functions, or affect law enforcement and security. In this case, the ADT decided that the words could reasonably be expected to ought to be given their ordinary meaning. That is to say that the ADT found them distinguishable from the words would involve the unreasonable disclosure previously contained in section 6(1) of the repealed FOI Act. This means that the previous complex tests used to decide whether there were public interest considerations against disclosure of information are no longer necessary (see for example, Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257). To find public interest considerations against disclosure of information under the new GIPA regime, all that must be found is that the information could reasonably be expected to have the undesired effect. Ultimately, this means that in every decisionmaking process, the public interest considerations against disclosure must be balanced against the public interest considerations in favour of disclosure of government information. March

18 Judgment The ADT found that where there was an apparent conflict of public interest in disclosing information, the decision whether or not to disclose the information must: (a) identify the public interest in favour of disclosure; (b) identify the public interest against disclosure; and (c) determine where the balance lies. Ms Flack argued a number of specific considerations to be taken into account in favour of disclosure under the GIPA Act. These may include specific information going to alleged misconduct of the NSW Police. This was in fact the purpose for Ms Flack s application. The ADT rejected the argument and held that disclosure of the information would not reveal information of a kind that would substantiate such concerns. Ms Flack also argued that the information had already been disclosed in earlier Local Court proceedings. The ADT again rejected the argument, finding that the substance of the requested information was not disclosed in the earlier proceedings. Finally, Ms Flack argued that the information was personal information about her and her husband. The ADT agreed in relation to this point and identified it as a public interest consideration to be balanced with public interest considerations against disclosure. The ADT found that disclosure of information could reasonably be expected to reveal the personal information of persons other than the applicant. It was held that this is a valid consideration to be taken into account when balancing the competing public interests. The ADT also found the information fell under section 18 of the PPIP Act. That provision restricts the disclosure of an individual s personal information to any other person, unless the circumstances give rise to an exception outlined under that provision. The ADT held that to disclose the information would be to disclose the private information of the witnesses who made submissions regarding the APVOs. Therefore, this information was taken into account in balancing the competing public interests. Finally, the ADT found that the information could reasonably be expected to prejudice the future supply of witness information to the police. The ADT essentially decided that allowing such disclosure of witness information could deter future witnesses from providing information and prejudice the functions of police as a government agency. For the reasons discussed above, in addition to the general presumption that government information should be disclosed, the single argument that remained in favour of disclosure was that it contained information relating to the applicant. In favour of non-disclosure, the ADT found that: the information could reasonably be expected to reveal the information of other persons; the disclosure would result in a contravention of the PPIP Act; and that the disclosure may deter future witnesses providing statements to police and adversely affect the operations of police. The ADT ultimately found that, on balance, the public interest fell in favour of not disclosing the information held by the NSW Police. Significantly, the ADT identified that the real issue in this case was the potential impact disclosure would have on future witnesses providing statements. Implications As one of the earliest GIPA Act decision by the ADT, the case provides some insight as to how the ADT will approach GIPA Act matters and highlights the need for the decision-maker to balance competing public interests for and against disclosure of personal information a balance that will depend on the facts of each individual case. In this case, the possible prejudice of the supply of future information to NSW Police by witnesses was an important and determinative public interest consideration. For further information contact: Ashley Tsacalos Partner Tel ashley.tsacalos@nortonrose.com 18 March 2012

19 Privacy update: recent cases and federal reforms In L v Commonwealth Agency [2010] PrivCmr 14, the former Privacy Commissioner (noting that as of 1 November 2010, the former Office of the Privacy Commissioner has been integrated into the Office of the Australian Information Commissioner (OAIC)) (Commissioner) reviewed a decision made by a Government Agency (the Agency) to publicly disclose an individual s private information to the media. The Agency disclosed the information in response to the Complainant making public criticisms to the media about an Agency decision. IPP 11 prohibits the disclosure of personal information to anyone else other than the individual concerned, unless a relevant exception applies. IPP 11.1(a) provides an exception where the individual is reasonably likely to have been aware or made aware that information of that kind is usually passed to the relevant person, body or agency. The Commissioner s Plain English Guidelines to Information Privacy Principles 8-11 (Guidelines) state that, under IPP 11.1(a), an individual may be considered to be reasonably likely to be aware that under circumstances where that individual complains publicly about an agency, that agency may respond publicly and to the media against those complaints. The Commissioner found that the information provided to the media by the Agency was in direct response to the Complainant s criticisms and at no point went beyond those terms. The Commissioner also found that, consistent with the Guidelines, the Agency may respond in the way it did. Therefore, the Commissioner took a preliminary view that IPP 11.1(A) permitted the disclosure made by the Agency. In another case, I v Commonwealth Agency [2010] PrivCmrA 10, the Commissioner again reviewed a decision to disclose personal information under IPP 11. In this case, the Complainant met with a State Member of Parliament (MP) to raise issues in relation to a decision made by a Government Agency. In the meeting, the Complainant disclosed correspondence made between the Complainant and the Agency. Resulting from the meeting with the Complainant, the MP requested information from the relevant Agency. The Agency provided that information. The Complainant claimed that this was an improper disclosure under IPP 11, as it included information private to the Complainant. IPP 11.1(b) provides an exception to IPP 11 where the individual concerned has consented to disclosure. Here the Commissioner held that, in having the MP s office make representations on their behalf, the Complainant consented to the gathering of information by the MP s office and the disclosure made by the Agency. The Commissioner therefore found that, pursuant to IPP 11.1(b), the Agency had not improperly disclosed the Complainant s private information. For further findings made by the Commissioner regarding IPP 11 and its exceptions, see K v Commonwealth Agency [2010] PrivCmrA 13; J and Commonwealth Agency [2011] AICmrCN 4; and D v Commonwealth Agency [2010] PrivCmrA 5. In J and Commonwealth Agency [2011] AlCmrCN 4, the Complainant claimed that during an Administrative Appeal Tribunal (AAT) application, a Government Agency improperly collected and disclosed information personal to the Complainant. The complaint concerned the agency obtaining the Complainant s fingerprints and providing those prints to a law enforcement body for the purposes of analysing certain documents. The first issue raised concerned the legality of the collection of the information. On this point, the Commissioner held that collection of the information was not in breach of IPP 1. The Commissioner found that the collection related to one of the Agency s lawful functions and that the disclosure would ultimately assist the AAT with its decision. Of particular significance in this case was the distinction the Commissioner was required to make between use and disclosure of information. If, in having the law enforcement body analyse the prints, the Agency was using the information it collected, then it would have to comply with the rule as to use of private information under IPP 10. If, on the other hand, the information was disclosed in the process, the Agency would have to find an exception to the provisions restricting the disclosure of personal information under IPP 11. The Commissioner turned to the Guidelines and noted that passing personal information outside the agency is to be considered use if the agency maintains control over the information. The Commissioner noted that control is satisfied under the Guidelines where the information is passed for a limited purpose that March

20 assists or benefits the agency and where there is an agreement that the external body will not use or disclose the information and where the Agency is allowed to access, change or retrieve the personal information at any time. The Commissioner found that the Agency submitted the fingerprints for the sole purpose of testing and that the law enforcement body knew of its responsibilities regarding the limited use of the information. It was therefore found that the Agency was using the information and not disclosing it for the purposes of the IPPs. As such, IPP 10 applied to the information but not IPP 11. IPP 10 provides that information be used consistently with the purpose for which it was collected. As the fingerprints were collected to check the veracity of the documents in question, the submission for testing was clearly a use consistent with the purposes of that collection. This finding suggests that under certain circumstances, agencies can pass private information to other parties without being considered to have unlawfully disclosed it for the purposes of IPP 11. This will be the case only where the information is given to another party for specific purposes and where the agency is considered to have remained in control of that information. n For further information contact: Ashley Tsacalos Partner Tel ashley.tsacalos@nortonrose.com The tort of invasion of privacy: what are its elements and when would it apply? As part of its review of Australian privacy laws, the Australian Law Reform Commission (ALRC) has released the Australian Law Reform Commission, Report 108 For Your Information: Australian Privacy Law and Practice (2008) suggesting that a statutory cause of action be provided for serious invasions of privacy. This would mean that, where an individual s privacy has been invaded, that individual would be able to bring a suit for damages caused by that invasion of privacy. In addition to the ALRC recommendations, both the NSW Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC) have released reports (see NSWLRC, Report 120: Invasion of Privacy (2009) and VLRC, Surveillance in Public Places: Final Report 18 (2010)) supporting the concept of a tort for invasions of privacy. Whilst the consensus on the development of a statutory cause of action is a positive step, the key issue that now remains is what will constitute an invasion of privacy and what will need to be proven to show that a tort has in fact been committed. Reasonable expectation of privacy The respective Commissions generally agree that, for there to be a statutory cause of action, the relevant injured party must have had a reasonable expectation of privacy. This would mean that to prove that a tort has been committed, a plaintiff would need to prove that he or she had a reasonable expectation of privacy and that the privacy was breached. Highly offensive invasion of privacy Under both the ALRC and VLRC models, the breach of privacy would need to be highly offensive to a person of ordinary sensibilities. This high threshold would mean that a mere invasion of privacy would not be enough on its own to give rise to a cause of action. Under this approach, the invasion of privacy would need to be highly offensive. 20 March 2012