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100422787

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES W.A. POLICE UNION OF WORKERS

APPELLANT

 -and-

 WESTERN AUSTRALIA POLICE SERVICE

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  SENIOR COMMISSIONER A R BEECH

  COMMISSIONER S J KENNER

DELIVERED WEDNESDAY, 23 JUNE 2004

FILE NO/S FBA 6 OF 2004

CITATION NO. 2004 WAIRC 11803

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Application to Information Commissioner – Freedom of Information Act 1992 – Application to Commission constituted by the Public Service Arbitrator – Application for access to/provision of documents – S27(1)(a) application – Initial application for access to documents dismissed – Not in the public interest – Appeal to the Full Bench – Clear discretionary decision – Both bodies have jurisdiction over the subject matter of the application – ‘Forum Shopping’ not in the public interest – No error in exercise of discretion – Appeal dismissed – Industrial Relations Act 1979 (as amended) s6(a)(b) and (c), s7, s23, s26(1)(a), s26(1)(c), s27(1)(o), s32, s33(1), s33(5), s44(9), s44 – Freedom of Information Act 1992 s23(2), s48(3), s63, s67, s77(3), s77(4), s78

Decision  Appeal dismissed

Appearances

Appellant   Mr K Yin (of Counsel), by leave

Respondent   Mr R Bathurst (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal by the above-mentioned appellant organisation of employees, the W.A. Police Union of Workers, against the decision of the Commission, constituted by a single Commissioner, who was sitting as Public Service Arbitrator, given on 22 January 2004 in matter No CR197 of 2002, and which appears to be against the whole of the decision.

2          The decision appealed against is constituted by an order (see page 58 of the appeal book (hereinafter called “AB”)), whereby, the Commissioner dismissed the applicant’s application at first instance, as being unnecessary or undesirable, in the public interest in accordance with s27(1)(a)(ii) of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

GROUNDS OF APPEAL

3          It is against that decision that the appellant organisation appeals on the following amended grounds (see page 2 (AB) and pages 2-3 of the transcript on appeal):-

“1. The learned Commissioner erred in concluding that the Application should be dismissed under Section 27(l)(a) of the Industrial Relations Act 1979 in that the Commissioner failed to give adequate or proper weight to the following facts and circumstances:

(a) the Application arises from the relationship of employer and employee;

(b) the Freedom of Information Act 1992 (“the FOI Act”) and its processes relate to the public generally and not specifically to the relationship of employer and employee;

(c) Section 3(3) of the FOI Act does not prevent access to and amendment of personal information by other lawful means including by Application to the Industrial Relations Commission;

(d) the Industrial Relations Commission is an independent statutory tribunal more properly capable of dealing with the matters in issue.

 2. It is in the public interest that an Appeal should lie.  It is in the public interest for the Commission to state the principals (sic) which apply to the maintenance and amendment of personal information of employees, and whether that should be governed by the FOI Act or whether that should be regulated as an industrial matter through the Industrial Relations Act 1979.

 3. The appellant seeks that the orders made by Commissioner Scott on 22 July 2003 be set aside and in lieu thereof that the application made by the Western Australian Police Service to dismiss in the public interest, be dismissed.”

BACKGROUND

4          The background to this matter is as follows.

5          The Police Service has established a process to assist in the early identification of police officers whose performance requires scrutiny, in the opinion of the service.

6          The process is described as a complaint early warning system and is triggered by the recording of three major complaints involving a police officer in a 12 month period.  A file is then created by the agency’s Professional Standards Portfolio and referred to the relevant officers’ supervisors to review and take any further action.  Constable Philip Patrick Murrin was, at all material times, a serving police officer, most latterly in the state’s south west.  In June 2000, the Risk Assessment Unit of the Professional Standards Portfolio of the agency, referred to Constable Murrin’s district superintendent an “Early Warning System file or Complaint History Review file” – relating to Constable Murrin’s performance.  Constable Murrin disputed that there were or had been three major complaints involving him in that preceding 12 month period, and therefore did not accept, in the absence of the three required complaints, that a Complaint History Review was warranted.  The Information Commissioner found, and it does not seem to be disputed, that the district superintendent interviewed Constable Murrin after receiving the Complaint History Review file but took no further action, and, indeed, queried the validity of the creation of the file.  In 2000 and 2001, Constable Murrin applied under the Freedom of Information Act 1992 (hereinafter called “the FOI Act”) for access to the documents in the Complaint History Review file and was given access to them.  His solicitor, Mr Scurria, Constable Murrin and two officers of the respondent’s Risk Assessment Unit met.  As a result of that meeting, the respondent undertook to endorse the file “issued in error”, and to advise the South West District Police Office of the error.  The respondent, through the two officers, further undertook also to enter the outcomes missing from the summary of Constable Murrin’s complaint history and write to his solicitor when those actions had been taken, advising that they had been taken.  In other words, the file evidencing the complaint or complaints and the action following from them were to form part of a file which was admitted to have been and marked as having been compiled and action taken thereon, in error.  Those actions were, in fact, taken as promised by the respondent’s officers.

7          In April 2003, Constable Murrin applied to the respondent for access to a number of documents and records (see page 90 (AB), paragraphs 6 and 7).

8          He sought access to the following documents, too:-

(a)          “. . . documents that are being held at the Internal Investigation Unit of the Western Australian Police Service”, and specifically “. . . all records” and “documents” relating to “20 internal investigations” which he identified by file numbers.

(b)          He also said that he required “all internal documents related to local complaints and internal investigation files . . . copies of compliant resolution forms, all supervisors write offs, all district office write offs and all internal investigation write offs . . . all videos, photographs and documentary evidence associated with these files”.

9         He also requested access to:-

“ . . . documents and copies of any emails from the Risk Assessment Unit and or Professional Standards Unit to the Bunbury District Office and the Officer in Charge of the Bunbury Police Station, advising the Early Warning File was generated in error.”

and

“. . . a copy of my “Early Warning File” or as it is known “Complaints History” file with the front page “marked” generated in error or words to that effect.”

10       He also sought to have the Complaint History and Review file destroyed because the file had been created in error.

11       The respondent refused, pursuant to s23(2) of the FOI Act, to provide access to these documents.

12       S23(2) of the FOI Act reads:-

“The agency may refuse access to the requested documents without having identified any or all of them and without specifying the reason why matter in any particular document is claimed to be exempt matter if — 

(a) it is apparent, from the nature of the documents as described in the access application, that all of the documents are exempt documents; and

(b) there is no obligation under section 24 to give access to an edited copy of any of the documents.”

13       On 18 July 2003, Constable Murrin made a complaint to the Information Commissioner seeking an external review of that decision of the respondent.

DECISION OF THE ACTING INFORMATION COMMISSIONER

14       By decision and reasons issued the same date, namely January 2004, the Acting Information Commissioner confirmed those decisions in the following terms.

15       The decision (see page 88 (AB)) reads as follows:-

“The decisions of the agency to:

(a)           refuse access to matter deleted from the Complaint History Review file and related documents on the ground that it is exempt under clause 3(1) of Schedule 1 to the Freedom of Information Act 1992;

(b)          refuse access to Internal Investigations Unit documents described in the access application, in accordance with s.23(2) of the Freedom of Information Act 1992, on the grounds that the documents are exempt under clause 5(1)(b) of Schedule 1 to Freedom of Information Act 1992; and

(c)           refuse to deal with the complainant’s application for amendment on the ground that it does not comply with section 46 of the Freedom of Information Act 1992,

are confirmed.”

16       It is to be noted that the Acting Information Commissioner in her decision held that whilst the Complaint History Review file was not created in accordance with the established policy guidelines of the respondent, the contents of the file were factually correct and would be retained for record keeping purposes only.

17       She also held that the agency, she understood, had assured Constable Murrin on a number of occasions that the particular file was closed and that it was not to be made routinely available to the respondent’s officers.  She also found that it had been clearly marked “issued in error”.  Further, only one hard copy of the file existed which was retained by the agency’s Risk Assessment Unit which is a restricted access area, she held.  She went on to find further that access to information of that kind held by the Risk Assessment Unit is not generally available and is subject to an authorisation process.

18       She also held that details of the creation of the file were not on the agency’s electronic databases or on the complainant’s personal file.  She observed that she had been assured that the file and its contents would not be used for performance assessment in the future, nor would it affect the complainant’s promotional opportunities.  Thus, she noted “in the absence of any evidence to the contrary, I accept those assurances”.

19       She found further that she would not be prepared to authorise the destruction of that file under s48(3) of the FOI Act. 

20       S48(3) reads as follows:-

“The agency is not to amend information under subsection (1) in a manner that — 

(a)  obliterates or removes the information; or

(b)  results in the destruction of a document containing the information,

unless the Commissioner has certified in writing that it is impracticable to retain the information or that, in the opinion of the Commissioner, the prejudice or disadvantage that the continued existence of the information would cause to the person outweighs the public interest in maintaining a complete record of information.”

21       For better understanding and convenience I quote in full paragraphs 54 and 55 of the Reasons of the Acting Information Commissioner for finding as she did:-

54. “In my view, there is a clear public interest in government agencies maintaining a full record of their activities, whether those activities were undertaken in error or not.  Section 48(3) of the FOI Act recognises the public interest in an agency retaining a complete record of information.  That public interest is also reflected in the State Records Act 2000 which, among other things, provides that it is an offence for a government organisation employee to destroy a government record unless the destruction is authorized by the record keeping plan of the organization.  The question then is whether that public interest is outweighed in this instance by any prejudice or disadvantage that the continued existence of the information would cause to the complainant.
55. The complainant submits that the prejudice to him that will follow from the continued existence of the file “is obvious”.  With respect, in the circumstances outlined above, it is not obvious to me.  From the foregoing, I understand that the file will not be generally accessible, and anyone to whom it is accessible will see immediately that it was generated in error and no action taken in respect of it; the file will not be used in relation to the future management of the complainant or at all; the existence of the file will not be noted on the complainant’s personal file and is not noted on the agency’s electronic databases.  In those circumstances, I am at a loss to see what prejudice to the complainant its continued existence will have.”

THE APPLICATION AT FIRST INSTANCE

22       An application was made by the above-named organisation of employees which names the above-named respondent (see page 3 (AB)) and was filed in the Commission on 25 November 2003, about four months after the complaint of 18 July 2003 to the Acting Information Commissioner and about one and a half to two months before the Acting Information Commissioner issued her decision and the reasons therefore.  It was made to the Commission constituted by a Public Service Arbitrator by an application filed 25 November 2003 and under s44 of the Act.  A conference was sought on behalf of Constable Murrin.  The application was opposed by the respondent and an answer and counter-proposal filed.  A memorandum of referred matters for hearing and determination was issued by the Arbitrator on 17 July 2003. 

23       It is fair to say that the applicant as was admitted, sought fundamentally the same remedies (see paragraph 3 to the Schedule to the Memorandum of Matters), as was sought from the Information Commissioner. 

24       Paragraph 10, the relief sought, of the application at first instance (see page 5 (AB)) reflects the orders which were sought and reads as follows:-

“Mr Murrin now seeks the intervention of the Industrial Relations Commission and for a conference to be held so that Mr Murrin’ s requirements can be addressed. His requirements are as follows:

(a) that all records held by the Police Service related to any complaint made against Mr Murrin be reviewed and the narrative re-written with an accurate account of what occurred with respect to each incident and the result of the investigation;

(b) all copies of the Early Warning File related to Mr Murrin be permanently destroyed and deleted from Police Service records and from Mr Murrin’s personal file;

(c) a letter should be written by the Police Service via the chain of command and through the officer in charge of the Bunbury District Office apologising to Mr Murrin for the treatment he had received prior to the Police Service conceding that the Early Warning File had been issued in error;

(d) a draft of the proposed re-write to Police Records should be provided to Mr Murrin for his comment prior to them being finalised; and

(e) a final copy of Mr Murrin’s personnel file should be sent to him via the office of Joe Scurria & Associates, 32 Stirling Street, Bunbury.”

25       That is, orders were sought that certain documents be provided to Mr Murrin concerning matters in which he was involved as a police officer, or which refer to him, the deletion of certain files and a requirement that the respondent’s rewrite certain documents.

26       The respondent then applied to the Commission pursuant to s27(1)(a) of the Act to dismiss the application on the ground that it was not in the public interest to proceed.  That application does not appear in the appeal book.  The basis of the application was that Mr Murrin had made application pursuant to the FOI Act for the same remedy as had been applied for in the Commission.  The respondent’s case, as applicant, was that it was not in the public interest that the Commission proceed to hear and determine the matter when there was a specialist statutory body which had the authority to deal with such a matter and had done so.  In essence, the Commissioner found that the claims were the same and that they had been dealt with through the processes of the FOI Act and by the Information Commissioner acting under the FOI Act.

27       The respondent also submitted that the hearing and determination of the matter by this Commission had the potential to bring about two conflicting conclusions by statutory bodies dealing with the same matter and that this was not in the public interest.  Further, the respondent submitted that Mr Murrin was not prejudiced by this matter not proceeding as he is able to pursue his application for access to documents and for changes to be made to documents where they are incorrect through the proper processes of the FOI Act. 

28       The submission for the applicant at first instance was that because this was an industrial matter and conceded to be such, that Mr Murrin had a right to have the Commission determine the matter and therefore the Commission could exercise its jurisdiction. 

29       For the applicant, it was also submitted that the FOI Act in its processes related to the public generally rather than to the employment relationship from which the documents arose and therefore the Act did not create an exclusive code or statement of the law.  Thus, there was no impediment to this Commission dealing with the matter.  Further, it was submitted that the Information Commissioner was in effect acting as an extension of the agency from which information was sought by virtue of s67 of the FOI Act or reviewing that agency’s decision whereas the Commission was in a different position as an independent statutory tribunal.  Further, so the submission went, the Commission has the ability to use judicial powers whereas the freedom of information processes involve an administrative review of the agency’s decision.

30       It was the submission for the applicant, too, that although he had failed to properly formulate an application to the Information Commissioner in relation to certain aspects of his claim, this failure was because access to the documents had been denied to him, and, without those documents, he could not formulate such an application.

FINDINGS OF THE COMMISSIONER

31       The Commissioner found, summarised, as follows:-

(a)          That it is not denied that the application before the Commission is essentially for the same remedy as Mr Murrin sought from the Information Commissioner.

(b)          That the matter has proceeded and been determined by a decision of the Office of the Information Commissioner in decision reference DOO12OO4.

(c)          That the Information Commissioner refused to authorise destruction of certain files as sought by Mr Murrin and he has not pursued other matters.

(d)          That the Commission has jurisdiction to deal with the matter.

(e)          That the exercise of the jurisdiction is a discretionary matter.

(f)           That it is not in the public interest for the Commissioner to deal with matters where a party has already pursued the same remedy with another statutory authority which has specific powers to look at those matters and has done so.

(g)          That there is an appeal process provided against decisions of the FOI Act a specialist body.  Access through that process has not been exhausted.

(h)          That Mr Murrin is not prejudiced by the Commission not considering his union’s claim for access because another statutory office more specialised in access to information has already considered his request and he still has options open in that regard.

(i)            That to ask the Commission to do essentially the same thing would be inappropriate as well as costly and time consuming.

(j)            That it is not appropriate to pursue, through different statutory bodies and tribunals, the same matter with the prospect that there may be a different and more favourable result and indeed, it would be contrary to public interest.

(k)          That the constable (actually his union, the appellant) should not pursue the matter through a number of fora. 

(l)            That it would be contrary to the public interest for there to be potential for conflicting findings in the conclusions to be drawn by the two statutory bodies.

(m)        “Although the applicant says that s.3(3) of the FOI Act provides that it is not intended that the FOI Act will be the only avenue for giving access to documents, I do not conclude that it means that an applicant ought to pursue such access in a number of different forums.  I form the view that s.3(3) of the FOI Act simply means that it is not necessary for every request for access to documents to be made formally through the FOI Act, and that where access can properly be given without such a request, the FOI Act creates no impediment to that occurring.”

FREEDOM OF INFORMATION ACT 1992 - RELEVANT PARTS

32       The notice of decision is contained at pages 82-86 (AB).  The decisions and reason for decision appear at pages 87-101 (AB), these are those of the Acting Information Commissioner.  The functions of the Information Commissioner are set out in s63 of theFOI Act which reads as follows:-

“Functions of Commissioner

(1) The main function of the Commissioner is to deal with complaints made under this Part about decisions made by agencies in respect of access applications and applications for amendment of personal information.

(2)  The functions of the Commissioner also include — 

(a) imposing reductions of time under section 13(4) and allowing extensions of time under section 13(5) or (7);

(b) giving approvals under section 35(1);

(c) issuing certificates under section 48(3);

(d) ensuring that agencies are aware of their responsibilities under this Act;

(e) ensuring that members of the public are aware of this Act and their rights under it;

(f) providing assistance to members of the public and agencies on matters relevant to this Act.

(3)  If in dealing with a complaint the Commissioner forms the opinion that there is evidence that an officer of an agency has been guilty of a breach of duty, or of misconduct, in the administration of this Act, the Commissioner may take such steps as he or she considers appropriate to bring the evidence to the notice of — 

(a) if the person is the principal officer of the agency but is not a Minister — the Minister responsible for the agency; or

(aa) if the person is the principal officer of a contractor or subcontractor — the Minister to whom the administration of the Court Security and Custodial Services Act 1999 or the Prisons Act 1981 is committed, as is relevant to the case; or

(b) if the person is a Minister — the Parliament; or

(c) in any other case — the principal officer of the agency.”

33       The decisions of the Commissioner are those as prescribed by s76 of the Act.  There is a power to refer questions of law to the Supreme Court (see s78).

Reviewing Discretionary Decisions

34       Appeals lie to the Supreme Court only in relation to decisions under s77(3) and s77(4).  Those are decisions concerning exempt matters, which, of course, was the situation here.

ISSUES AND CONCLUSIONS

35       The decision appealed against was clearly a discretionary decision, it was submitted as that term is defined in Norbis v Norbis [1986] 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194).  Therefore, the appellant, if that is the case, must establish that the decision at first instance constituted a miscarriage of the Commission’s discretion at first instance and it must be established in accordance with the well known principles laid down House v The King [1936] 55 CLR 499 and Gromark Packaging v FMWU (1992) 73 WAIG 220 (IAC), as well as many decisions of the Full Bench of this Commission (see, for example, recently, Matthews v Cool or Cosy Pty Ltd (2004) 84 WAIG 199 (FB)).

36       Unless they appellant so establishes, then there is no warrant in the Full Bench to interfere with the exercise of the discretion at first instance, and certainly no warrant in the Full Bench to substitute its exercise of discretion for that of the Commission at first instance.

Was a discretionary decision made?

37       It was a major part of the case for the appellant that no discretionary decision was made because the Commissioner declined to exercise the jurisdiction conferred on her by the Act and that was an error.

38       In other words, not only was there no discretionary decision made, but indeed no decision was made because the Commissioner did not exercise the jurisdiction conferred upon her and declined to do so.

39       It is necessary to say at the outset that the matter came before the Commissioner at first instance and the Commissioner made a decision after considering the material and hearing submissions, to dismiss the application, pursuant to s23 of the Act.

40       It is quite clear that the Commissioner exercised her jurisdiction.  Before her was an “industrial matter” which was constituted by a dispute about what should have been done with certain employment records relating to an employee created by and retained by an employer.  It was not in issue that the matter was an “industrial matter” as defined in s7 of the Act.  Orders were sought by the employee’s organisation, the appellant, and the application for those orders was opposed in this Commission by the employer.  The employer made an application for the dismissal of the application submitting that the Commissioner should use her power to dismiss the matter under s27 of the Act.

41       There was no submission that the Commissioner was acting outside her jurisdiction and therefore any orders sought under s27 of the Act could only be sought within the jurisdiction of the Commission.  The Commissioner having jurisdiction considered whether she should use that power to deal with the matter further, or dismiss the application made under s27.  Under s27(1)(a) of the Act, express power is conferred on the Commission, however constituted “in relation to any matter before it” and “at any stage of the proceedings” to dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part of it if the Commission is satisfied that certain factual circumstances exist.  These are:-

“(i) that the matter or part thereof is trivial;

 (ii) that further proceedings are not necessary or desirable in the public interest;

 (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

 (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;”

42       In this case, even early in the proceedings, as she was entitled to do, the Commissioner dismissed the matter because in the words of s27(1)(a)(ii), she concluded that further proceedings were not necessary or desirable in the public interest.  That was a clear discretionary decision as defined.  In other words, the Commissioner decided on the evidence and on the submissions and on the material before her in the exercise of her discretion and gave reasons for so doing, that the matter should be dismissed in the public interest.  She took into account a number of factors which she considered relevant in making the decision.  It will be quite clear for those reasons that I am entirely satisfied that the Commissioner at no time declined to exercise the jurisdiction conferred on her but, in the exercise of her jurisdiction was faced with an application seeking that she use her powers to dismiss, those powers being conferred on her by s27 of the Act, and that she decided in the exercise of that power conferred on her to exercise her discretion to dismiss the matter and accordingly did so.  This appeal was then clearly an appeal against a discretionary decision on the authorities to which I have referred above.

The Grounds of Appeal - Otherwise

43       This was a matter which turned on a simple issue.  Pursuant to its procedures, Constable Murrin’s employer, the respondent, created and maintained files relating to complaints about his conduct as an employee including, no doubt, records of interview and relevant statements.  He, through the appellant organisation, his organisation, validly sought that orders may be made by the Information Commissioner which were within the competence of that Commissioner under the FOI Act.  The remedies sought were properly conceded by counsel for the appellant, not to be materially different from the order sought by the appellant in this Commission.  At the heart of both of those applications was clearly an apprehension that the files, having been acknowledged to have been erroneously created, might be used to Constable Murrin’s present or later prejudice or detriment and particularly in relation to his progress in his career.  That is why in both “jurisdictions” he sought the destruction of the file.  It will be clear from the reasons of the Information Commissioner that she did not accept that such a risk existed and she expressed the reasons for so finding.  I have referred to them above.  The Information Commissioner did so in exercising what I might call her “jurisdiction”.  However, that was not what was before the Commission to decide, having regard to s27 of the Act.  It should be noted that at no time was there any evidence that the appellant sought to pursue its rights by way of appeal against the FOI decision to the Supreme Court, which was open to it to do, if it were aggrieved by the decision of the Information Commissioner.  It seems to be common ground further, that the time for any appeal to the Supreme Court against the decision of the Information Commissioner has long expired.  There is no doubt, too, that there is no bar in the FOI Act or otherwise to the Commissioner exercising jurisdiction or power in relation to a matter within the jurisdiction of the Information Commissioner.  It is quite clear that the FOI Act by its content and by its long title, directs itself to providing public access to documents enabling the public to ensure that personal information and documents are accurate, complete and up to date and not misleading, and for related purposes.  It is clear from the FOI Act, however, that the powers and jurisdiction of the Information Commissioner and the scope of the FOI Act is confined to state and local government documents and private documents lodged in places such as galleries, museums, etc (s7).

44       S3 of the FOI Act, which reads as follows, is significant:-

“3. Objects and intent

 (1) The objects of this Act are to — 

(a) enable the public to participate more effectively in governing the State; and

(b) make the persons and bodies that are responsible for State and local government more accountable to the public.

 (2) The objects of this Act are to be achieved by — 

(a) creating a general right of access to State and local government documents;

(b) providing means to ensure that personal information held by State and local governments is accurate, complete, up to date and not misleading; and

(c) requiring that certain documents concerning State and local government operations be made available to the public.

(3)  Nothing in this Act is intended to prevent or discourage the publication of information, or the giving of access to documents (including documents containing exempt matter), or the amendment of personal information, otherwise than under this Act if that can properly be done or is permitted or required by law to be done.”

45       The Information Commissioner has specialised and restricted power relating to restricted categories of documents of which the documents sought to be ordered to be destroyed in this case were clearly part.  On the other hand, this Commission has broad jurisdiction and unlimited power, except for the limitations contained by the four corners of the Act, to deal with industrial matters.  That includes dealing with documents of any type as part of dealing with an industrial matter.

46       That also includes the power to require documents to be discovered, inspected or produced (see s27(1)(o)), the power to deal with documents brought by summons to witness to the Commission (see s33(1)), the power to inspect all books, papers and other documents produced in evidence before the Commission (see s33(5)) and without doubt, the power to deal with documents which may be the centre of an industrial matter and or an industrial dispute before the Commission.  It was correctly conceded at first instance that the matter before the Commissioner was an industrial matter and that there was jurisdiction to deal with it, which there was.  The kernel of the application to be resolved at first instance, that is the application made under s27 and not the substantive application, is really whether it was in the public interest for the Commissioner to deal with matters where a party has already pursued the same remedy sought in this Commission in another statutory body, tribunal or court which has specific powers to hear and determine the matter and has done so.  The Commission is not of course, a statutory authority.  It is for some purposes a court, for others a tribunal, for others a legislator.  However, that does not detract from the central question at issue as I have just expressed it. 

47       There are a number of important relevant factors.

48       First, the Information Commissioner’s role, a narrow and restricted one, is expressly directed by statute to dealing with applications for the revelation of state and local government documents or documents held in state museums, libraries and the like, even if they are private and other matters such as their destruction or correction.

49       Second, there is, and it was accepted that there is and was, no bar at all to the Commission dealing with the matter which was within its jurisdiction (see s7 and s27 of the Act).

50       Third, the matter was heard and determined and a competent order was made by the Information Commissioner.

51       Fourth, the orders sought and indeed the subject matter of proceedings before the Information Commissioner and in this Commission were, as conceded, essentially the same.

52       Fifth, the appellant had not exhausted all of its remedies such as an appeal to the Supreme Court under the FOI Act, which it was open to it to make.

53       Sixth, further and relevantly, it was also held by the Commission at first instance, Constable Murrin and the appellant were not prejudiced by the Commissioner not considering the claim for access to destruction of documents because the matter at issue between the parties had already been determined by a “statutory office” more specialised in access to information.  That, in the circumstances of this case, was a valid and relevant observation because the matter at the heart of the process before the Information Commissioner was almost identical and the remedy sought in both practically the same. 

54       Seventh, generally speaking, too, the Commissioner correctly found that it was “not appropriate for him to pursue, through different statutory bodies and tribunals, the same matter with the prospect that there may be a different and more favourable result”.  This, the Commissioner held, would not be in the public interest to permit.

55       I agree that there was, in this case, such a coincidence of matter, and remedy sought in the two jurisdictions and the matter had not been exhausted by pursuing the appeal process to the Supreme Court in proceedings which had been commenced before the Information Commissioner at first instance and by the election of the appellant.  It is clear that, for those reasons, it was not in the public interest to permit the matter to proceed further.  Also, because of those factors, further proceedings in this Commission were not necessary or desirable in the public interest.  It was therefore correct to dismiss the application. 

56       There are other reasons, too.  It is clear that the matter should be dismissed under s27(1) of the Act, because what is now occurring is forum shopping, namely seeking a different result, resulting in duplication and contributing to a lack of finality in “litigation” with a particular detriment for the respondent.  That point is illustrated in this way.  If the Information Commissioner’s finding was appealed against (the word “appeal” is not a transitive verb), to the Supreme Court, which is the appellant’s right, then that would complete the process commenced by the appellant for the purposes of both parties.

57       What now occurs is this.  The appellant takes an entirely different tack.  The matter is raised at first instance before the Commissioner in this Commission, the appellant having received an unfavourable result by its application to the Information Commissioner.  These proceedings in the Commission are fresh proceedings in a new jurisdiction which have led to one appeal to the Full Bench and could, if the matter went further, lead to two appeals.  The matter could have been dealt with by two proceedings in the FOI process instead of prospectively by two or three proceedings in this Commission.  The actuality of this lack of finality, and duplication, is not in the public interest.  Forum shopping, when a result has been achieved by proper process in a forum chosen by the appellant, is not in this case in the public interest particularly, when, under the FOI Act, the appellant had not exhausted all of its remedies.  The potential for conflicting decisions in the two fora, and the undesirability of that occurring as a matter of public interest is manifest.  Further, it is not, in my opinion, contrary to the objects of the Act to hold as the Commissioner held at first instance, and for the reasons which I have expressed above, that the matter should be dismissed.  I say that because it is not conducive to good will in industry to enable uncertainty to continue if certainty has been achieved according to law in another “jurisdiction” in virtually the same matter. 

58       Next, the interests of the parties, but particularly the respondent, are best served by the Commissioner imposing certainty for the parties by dismissing the application in this Commission (see s26(1)(c)).

59       Next, it is patently not in the interests of the community as a whole if there is not finality to dispute resolution in the industrial field and it is unnecessarily prolonged, as it would have been had this matter not been dismissed (see s26(1)(c)).

60       For all of those reasons, and for the reasons expressed by the Commission to which I have referred, the equity, good conscience and substantial merits of the case lie with the respondent (see s26(1)(a)).  Alternatively, they have not been established not to.

61       The exercise of the discretion of the Commission at first instance did not miscarry and was not established to have miscarried in accordance with the principles laid down in House v The King (op cit).

62       However, there is something which I need to make clear.  I do not attach much weight to the argument that the matter was commenced in and dealt with by and more suitably by a tribunal with special powers suitable for the special purpose for which its powers were invoked by the appellant.

63       That by itself is simply not sufficient to activate a sound exercise of the discretion in this Commission under s27(1).  First, the FOI Act does not prevent this Commission from dealing with this sort of matter.  Second, this was an exceptional case where the matter in issue and resolved by the Information Commissioner and not appealed against, was so close in identity and in the remedies sought to those in this Commission that there was little scope for the Commission to resolve the matter without merely mirroring the decision of the Information Commissioner or making a conflicting decision.  (Neither, of course, would have been in the public interest).  This Commission has cognisance of any industrial matter as it did of this industrial matter.  Once that is the case, the Commission is required to conciliate and arbitrate on the matter.  By the objects of the Act, which act as signposts to the Commission, the Commission in a matter such as this, in the discharge of its jurisdiction, seeks, inter alia, to promote goodwill in industry (as defined in s7 of the Act), and enterprises within industry (s6(a)), to encourage and provide means for conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes (s6(b)), and to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes with the maximum of expedition and the minimum of legal form and technicality (see s6(c)).  That of course means that unless an industrial matter is so identical to a matter resolved in another court, tribunal or by another statutory authority, then this Commission, where there is an industrial matter and particularly where there is a live and ongoing dispute between an employer and employees, or an employer and an employee, or between an organisation or organisations of employers and employees and or associations, will not dismiss the matter under s27(1)(a) in the public interest.  In particular, for example, where part of the matter only was resolved in another jurisdiction, the Commission, as part of its resolution of the whole industrial matter, may be required to reconsider that part of it which was resolved elsewhere in order to resolve the whole of the industrial matter or dispute before it.  It will then be required to exercise its jurisdiction to deal with the whole of the industrial matter beyond the s27 application stage, and to exercise all of its powers including those under s32 and s44 of the Act.

FINALLY

64       Finally, for all of those reasons I find no ground of appeal made out and I would dismiss the appeal.

SENIOR COMMISSIONER A R BEECH:

65       In order to place the fundamental ground of the union’s appeal in this matter, that being that the Public Service Arbitrator failed to exercise her discretion, into context it is helpful to place in sequence the events as they unfolded before her.  The union applied for a conference before the Public Service Arbitrator.  The precise date of that application is not revealed by the copy of it in the Appeal Book (AB 3).  Nevertheless, a conference was then held in accordance with s.44 of the Industrial Relations Act 1979. 

66       At the conclusion of that conference a matter had not been settled by agreement and accordingly was referred for hearing and determination under s.44(9) of the Act (a copy of that memorandum being in the papers supplied by the respondent).  By s.44(9) of the Act:

“(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.”

67       The matter therein set out is as follows:

“The applicant says that:

1. Phillip Patrick Murrin (“Mr Murrin”) is a First Class Police Constable employed by the Western Australian Police Service.

2. Mr Murrin’s terms and conditions of employment are set out in the Western Australian Police Service Enterprise Agreement for Police Act Employees PSA AG 8 of 2001.  The respondent maintains within its records certain information in respect of Mr Murrin which is either inaccurate of inappropriate to be maintained.

3. The applicant seeks orders that:

  “(a) The respondent shall provide to Mr Murrin a copy of the following documents concerning Mr Murrin:

   (i) all internal documents related to local complaints and internal investigation files;

   (ii) all supervisor’s write-offs;

   (iii) all district office write-offs;

   (iv) all internal investigation write-offs;

   (v) all videos, photographs and documentary evidence associated with the aforementioned files; and

   (vi) copies of any e-mails from the Risk Assessment Unit to the Bunbury District Office and the Officer-in-Charge of the Bunbury Police Station advising that Mr Murrin’s Early Warning File was generated in error.

  (b) The respondent shall permanently delete the Early Warning File related to Mr Murrin from Police Service records.

  (c) The respondent shall conduct an entire re-write of the Complaints History concerning Mr Murrin to ensure that the Complaints History complies with all relevant policy criteria, with the respondent to attach to the re-write a copy of the relevant policy criteria and give particulars as to how the policy criteria have been applied.”

The respondent:

1. Says that the Commission has no authority to enquire and to deal with the matter on the basis that there is no jurisdiction in the Commission as the matter does not constitute an industrial matter.

2. Says that even if the Commission has jurisdiction, it is appropriate for First Class Constable Murrin to seek redress pursuant to the Freedom of Information Act 1992 which prescribes procedures to be followed where persons are concerned about the creation, retention and destruction of records by instrumentalities and agencies including employers.

3. Objects to the Commission issuing orders sought.”

68       At some time prior to that matter being heard and determined by the Public Service Arbitrator the respondent itself made an application pursuant to s.27(1)(a) of the Act for the Commission to dismiss the matter.  That application came before the Commission on 16 January 2004 (AB 59) and the Commission heard both parties on the respondent’s application. 

69       It is, in my respectful observation, very difficult for the union to argue that the Public Service Arbitrator did not properly exercise her discretion in relation to the respondent’s application.  She gave an opportunity to both parties to put before her the submissions and evidence that they wished.  The Public Service Arbitrator then considered the submissions and evidence before her.  As a consequence, the Public Service Arbitrator concluded that the application should succeed and that the matter referred for hearing and determination should be dismissed.  There was not a blanket refusal to embark upon the matter.  Rather, there was a considered refusal and, for the reasons given by his Honour the President, a proper exercise of her discretion in reaching the conclusion to which she then came. 

70       I have not been persuaded that any error has been shown on the part of the Public Service Arbitrator for the following reasons.

71       Mr Yin, who appeared for Constable Murrin in the appeal, is quite correct in my respectful observation in his submission that there is a critical difference between the manner in which the powers of the Public Service Arbitrator and the powers of the Information Commissioner are to be exercised under the statutes by which they are created.  That is, whilst the public interest in governmental accountability underpins the Freedom of Information Act 1992 the public interest in the prevention and settlement of industrial disputes underpins the Industrial Relations Act 1979. 

72       Thus, it is entirely foreseeable that in a particular case a document which the Information Commissioner decides is inappropriate to be disclosed because it is not in the public interest to provide or alter, as the case may be, may yet be one which an industrial relations Commissioner, in this case a Public Service Arbitrator, may decide is desirable to be disclosed or altered, as the case may be, in order to prevent or settle an industrial dispute. 

73       The difference between the two statutory bodies is all the more marked in this case.  It is conceded by counsel representing the Commissioner for Police that the Information Commissioner does not have the power under the Freedom of Information Act 1992 to make the orders sought by Constable Murrin.  That concession is, with respect, properly made.  Our attention was not drawn to any section of the Freedom of Information Act 1992 which gives power to the Information Commissioner to order that certain documents held by the WA Police Service relating to complaints made against Constable Murrin and his Early Warning File be provided to him; that the Early Warning File relating to Constable Murrin be destroyed; and that the Police Service conduct an entire re-write of the Complaints History concerning Constable Murrin to ensure that the Complaints History complies with all relevant policy criteria. 

74       Conversely, the Public Service Arbitrator had the power pursuant to s.44(9) of the Act, upon hearing and determining the question, dispute or disagreement not settled between the parties, to make an order binding only the parties in relation to whom the matter had not settled.  The power to make an order under s.44(9) is wide (although it is not unlimited: see Director General of the Ministry of Culture and the Arts v CSA (2000) 80 WAIG 453 at 455/6).  If an order that certain documents held by the WA Police Service relating to complaints made against Constable Murrin and his Early Warning File be provided to him was necessary, for the Public Service Arbitrator to determine the matter which had been referred for hearing and determination, then it is arguable that s.44(9) provides the power to make such an order.

75       The fact that the two tribunals have different powers, and particularly that the Information Commissioner does not have the power to grant the orders which were sought from the Public Service Arbitrator, do much to strengthen the argument put by Mr Yin on Constable Murrin’s behalf. 

76       The conclusion I have reached however is based upon the fact that the claim before the Public Service Arbitrator is conceded to be the same claim as was made to the Information Commissioner.  Also there is ample evidence from the Reasons for Decision of the Information Commissioner (AB 87 and following) that the she nevertheless considered the claim on its merits.  It is hardly surprising in those circumstances that the Public Service Arbitrator held that it is not in the public interest for another public authority to hear the same matter.  Had the Information Commissioner refused to deal with the merits of Constable Murrin’s claim a different conclusion might have been open. 

77       Had the question, dispute or disagreement referred under s.44(9) been quite different from the matter before the Information Commissioner the range of orders available to the Public Service Arbitrator in the proper exercise of the power in s.44(9) in determining the question, dispute or disagreement would have been quite different. 

78       However, the matter referred for hearing and determination before the Public Service Arbitrator was not different.  It was a simple request for orders to issue in the manner described above.  In such a circumstance, the conclusion of the Information Commissioner at paragraph 53 of her Reasons for Decision (AB 101) that in the absence of any evidence to the contrary, the assurances of the WA Police Service that the file is closed and marked “Issued in Error”, that it is retained by the agency’s Risk Assessment Unit not on the agency’s electronic data bases or the complainant’s personal file and will not be used for performance assessment in the future nor affect the complainant’s promotional opportunities, suggests that the identical claim before the Public Service Arbitrator had already been comprehensively dealt with. 

79       That is, even if the orders sought before the Public Service Arbitrator were dealt with on the basis that the powers of the Public Service Arbitrator are to be exercised on the basis of settling an industrial matter, there is nothing in the application made to the Public Service Arbitrator, or in the matter referred for hearing and determination under s.44(9) of the Act, to suggest that the same sort of outcome would not have resulted from the matter before the Public Service Arbitrator.  After all, it was the same sort of orders that were sought. 

80       For those reasons, it is difficult for the union in this case to show error on the part of the Public Service Arbitrator.  I would dismiss the appeal.

COMMISSIONER S J KENNER:

81       The complaint by the appellant in this matter, is that the learned Commissioner at first instance, erred in exercising power under s 27(1)(a) of the Industrial Relations Act 1979 (“the Act”) to dismiss the appellant's claim at first instance, on the ground that it was not necessary or desirable in the public interest that the claim proceed to be heard.

82       The background of the appellant's claim before the Commission and the history of the matter as it proceeded before the Information Commissioner under the Freedom of Information Act 1992 (“the FOI Act”) has been set out by the President in his reasons for decision.

83       What the appellant in short says is that the learned Commissioner erred in dismissing the application at first instance, because the interests to be enlivened under the FOI Act and the Act, in the context of the appellant's claim in this jurisdiction at first instance, are different.  The submission of counsel for the appellant was that the interests to be pursued under the FOI Act relate to matters of public access to documents generally whereas the proceedings before the Commission dealt with Mr Murrin’s rights as an employee in the pursuit of an industrial matter with the respondent and were therefore different.  Counsel for the appellant also submitted that the learned Commissioner failed to exercise the jurisdiction conferred upon her under the Act, by dismissing the application at first instance.

84       I have no doubt that the learned Commissioner did exercise jurisdiction and power conferred upon her under the Act.  The matter at first instance came before the Commission pursuant to s 44 by way of an application for a compulsory conference brought by the appellant on behalf of its member Mr Murrin.  It appeared common ground on the appeal, that the orders sought at first instance, were in essence the same as the remedies that were sought in Mr Murrin's application to the Information Commissioner under the FOI Act.  Mr Murrin was not successful in his proceedings before the Information Commissioner, but had not exercised his right of appeal to the Supreme Court under s 77 of the FOI Act.  It was not in contention that the compulsory conference proceedings did not result in a settlement of the industrial matter referred to the Commission by agreement, and hence, the matter was referred for hearing and determination under s 44(9) of the Act.

85       Subsequent to the matter being referred for hearing and determination under s 44(9), the respondent brought an application that the substantive claim of the appellant at first instance, be dismissed pursuant to s 27(1)(a) of the Act, on the ground that that it was not in the public interest for the matter to proceed.  This application was fully argued before the learned Commissioner by counsel at first instance.  It is apparent from the contents of the appeal book, that the Commission at first instance had all of the relevant materials before it, including Mr Murrin's original request for documents from the respondent; its response; the respondent's review of its initial refusal; and relevant “appeal” documents and the decision of the Information Commissioner in response to Mr Murrin's application to that statutory body.

86       It is plain from the foregoing in my opinion, that the learned Commissioner inquired into and dealt with the application before her that she dismiss the matter exercising powers under s 27(1)(a) of the Act and that she did so, having concluded that it would not be in the public interest that the matter proceed.  This was plainly a decision involving the exercise of a discretion and accordingly, attracts the well settled principles concerning appeals from discretionary judgments: Norbis v Norbis (1986) 161 CLR 513; House v The King (1936) 55 CLR 499.  In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Kitto J, in relation to these principles said at 627:

“So, too, there are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle.  Yet in that wider area it is clear that such statements are not exhaustive.  I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513 at 532-534 to cases of the highest authority which appear to me to establish that the true principle limiting  the manner in which appellate  jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 at 504-505.”

87       For the following reasons, I am not persuaded by the appellant's arguments, that the discretion exercised by the learned Commissioner at first instance miscarried such that the presumption in favour of the correctness of the decision the subject of this appeal should be displaced.

88       Firstly, as I have observed above, it was common ground that the documents sought by Mr Murrin in the application to this Commission, were the same as sought by him under the FOI Act.  Additionally, Mr Murrin also sought that certain documents be amended and others destroyed.  This was his claim in relation to matters under the FOI Act also.  It was apparent at first instance, that the appellant's application at first instance did not raise any matters other than those narrow issues that were determined adversely to the appellant, in the proceedings before the Information Commissioner.

89       Secondly, the learned Commissioner concluded that it would not be in the public interest for the appellant's claims at first instance, to in effect, be “re-litigated” before this Commission.  This conclusion was one that was clearly open in my view.  Given that there were no wider industrial issues in dispute before the Commission at first instance, then it would be an entirely proper exercise of the discretion to dismiss in the public interest, an application which sought to do no more than had previously been sought and denied, in another jurisdiction.  The learned Commissioner also recognised the potential for competing determinations on these issues, which is particularly so in light of the fact that the appellant had not at the time of the proceedings before the Commission, pursued his right of appeal to the Supreme Court from the determination of the Information Commissioner.  This is to be seen in the context of a right of appeal to the Full Bench of this Commission, and ultimately, to the Industrial Appeal Court under the Act.  The potential for there to be competing judgments was quite plain in my view.

90       That is of course not to say, that this Commission would not in an appropriate case, refuse an application to dismiss in the public interest, in different circumstances.  The Commission's jurisdiction and powers in relation to enquiring into and dealing with industrial matters under the Act are broad.  As a part of enquiring into and dealing with an industrial matter, the Commission has a range of procedural powers in s 27(1) of the Act, including the power to make such orders as may be just in relation to matters of discovery, inspection or production of documents.  Documents may also be required to be produced, and may be subject to orders of the Commission as to their use, in proceedings before the Commission, under s 33 of the Act.

91       There may well be circumstances relevant to an industrial matter being dealt with by the Commission, that are such that the Commission would order the production of documents in connection with those proceedings, notwithstanding the failure by a person to obtain those same documents, under the FOI Act.  The Commission is clearly empowered to make orders of this kind and this would appear to be recognised from the terms of s 3 of the FOI Act, in particular s 3(3).

92       However, given the circumstances of the case before the Commission at first instance, limited as it was to a claim for relief in almost identical terms to that which was before the Information Commissioner, I am not persuaded that the appellant has demonstrated that the learned Commissioner made any error in the exercise of her discretion on this occasion.  I would dismiss the appeal.

THE PRESIDENT:

93       For those reasons the Full Bench dismissed the appeal.

Order Accordingly