Mullen v Aged Care Quality and Safety Commissioner [2020] FCAFC 78

Mullen v Aged Care Quality and Safety Commissioner [2020] FCAFC 78

The appeal failed because s 86-9 of the Aged Care Act 1997 (Cth) does not itself remove protected information from the secrecy regime or authorise disclosure on request; protected information remains exempt under the Freedom of Information Act 1982 (Cth) unless the relevant statutory power is exercised. Further, s 55K(2) did not allow the Information Commissioner or Tribunal to exercise powers conferred on the Secretary because the reviewable decisions were decisions of the relevant aged care agencies, not decisions of the Secretary. No basis was shown to depart from the ordinary rule that costs follow the event.

Jurisdiction
Australia
Judgment Date
13 May 2020
Procedural Posture
Administrative Law Appeal Concerning Freedom of Information Act Access and Aged Care Act Secrecy Provisions / Appeal to the Full Court From Dismissal of an Appeal From the Administrative Appeals Tribunal
Outcome
Appeal dismissed with costs.
Legal Topics
['exempt Documents' 'protected Information' 'statutory Secrecy Provisions' 'statutory Construction' 'administrative Appeals Tribunal Appeals' 'costs']
['administrative Law' 'freedom of Information' 'aged Care Regulation'] ['exempt Documents' 'protected Information' 'statutory Secrecy Provisions' 'statutory Construction' 'administrative Appeals Tribunal Appeals' 'costs']

Case Brief

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Procedural Posture

Administrative Law Appeal Concerning Freedom of Information Act Access and Aged Care Act Secrecy Provisions / Appeal to the Full Court From Dismissal of an Appeal From the Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether s 86-9 of the Aged Care Act 1997 (Cth) meant that documents sought by the appellant were not exempt documents under the Freedom of Information Act 1982 (Cth).' 'Whether the Information Commissioner, under s 55K(2) of the Freedom of Information Act 1982 (Cth), could exercise powers conferred on the Secretary by ss 86-9 or 86-3 of the Aged Care Act 1997 (Cth).' 'Whether the appellant should avoid a costs order despite the dismissal of the appeal.']

Ratio Decidendi

The appeal failed because s 86-9 of the Aged Care Act 1997 (Cth) does not itself remove protected information from the secrecy regime or authorise disclosure on request; protected information remains exempt under the Freedom of Information Act 1982 (Cth) unless the relevant statutory power is exercised. Further, s 55K(2) did not allow the Information Commissioner or Tribunal to exercise powers conferred on the Secretary because the reviewable decisions were decisions of the relevant aged care agencies, not decisions of the Secretary. No basis was shown to depart from the ordinary rule that costs follow the event.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' 'The appellant do pay the costs of the respondent to be assessed on a lump sum basis if not agreed.']