Report on performance
Administrative Appeals Tribunal
Dr Warren John Saint
General practitioner
Kwinana, WA
As previously reported,[31] Dr Saint was referred to PSR in 2000, was reported by the investigating Committee to have engaged in inappropriate practice, and sought judicial review.[32] Having been only partially successful with discovery applications to the court, he applied under the Freedom of Information Act 1982 (FOI Act) for copies of various documents created in the course of the Committee investigation. PSR provided some documents to him; others were claimed to be exempt from freedom of information disclosure. He sought review by the Administrative Appeals Tribunal of the latter decisions.[33]
On 30 October 2006, the Tribunal affirmed the PSR decisions. The documents were broadly working notes and drafts of Committee members and/or their support staff (secretariat and lawyer) and included comments on medical services provided by Dr Saint, drafts of/for their report and its appendices, comments thereon, preliminary findings, comments on submissions by Dr Saint, and legal advice. PSR had based its exemption decisions on section 36 of the FOI Act (internal working documents), section 40 (adverse effect on agency operations) and section 42 (legal professional privilege).
The Tribunal was satisfied that the Committee was an agency, for freedom of information purposes, and that most of the documents were deliberative in nature so that section 36(1)(a) applied. Exemption also requires that section 36(1)(b) be satisfied, namely that disclosure would ‘be contrary to the public interest’. The Tribunal accepted PSR submissions that this would be so because section 106ZR makes it a criminal offence to disclose Committee deliberations, findings, information or evidence unless the Health Insurance Act 1973 otherwise provides for disclosure; because that Act requires a Committee to give the person under review an opportunity to comment on a draft of their report and Committee members would be severely inhibited in their task if preliminary materials were disclosed; and because the Committee had judicial immunity under section 106F(1) which would be undermined if their deliberations were disclosed by other processes.
Of the remaining documents, all but one were conceded to be exempt under section 42 of the FOI Act. The Tribunal held that remaining document to be exempt as it was created by a lawyer (employed by a law firm, not PSR) for the dominant purpose of providing legal advice to PSR and would be privileged from production in legal proceedings. The Tribunal found that this privilege had not been waived by publication in a PSR Annual Report of legal advice by another lawyer relating to the same general matter as the document in contention.
The Tribunal did not need to consider the application of section 40 of the FOI Act.