St Vincent Welch -v- Chief Executive Officer, Casino Control Authority [2001] NSWADT 89

CITATION: St Vincent Welch -v- Chief Executive Officer, Casino Control Authority [2001] NSWADT 89 DIVISION: General Division APPLICANT PARTIES: John St Vincent Welch RESPONDENT Chief Executive Officer, Casino Control Authority FILE NUMBER: 003079 HEARING DATES: 16/11/2000, 28/08/2000 SUBMISSIONS CLOSED: 02/23/2001 DATE OF DECISION: 06/01/2001

BEFORE: Robinson MA - Judicial Member APPLICATION: Freedom of Information Act - access to documents - secrecy provisions MATTER FOR DECISION: Principal matter LEGISLATION CITED : Casino Control Act 1992 Freedom of Information Act 1989 CASES CITED: Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133 APPLICANT REPRESENTATION: M O'Brien, barrister RESPONDENT P Sharp, barrister ORDERS: 1. The decision under review is affirmed; 2. The exhibits be made available for return or returned to the appropriate parties after the expiration of 28 days from today.

1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 ("FOI Act") read with the Casino Control Act 1992 ("CC Act") refusing the applicant access to documents forming part of the file of the investigations section of the Casino Control Authority ("Authority").

2 As is often the case in FOI matters, the applicant initially sought the release of a significant number of documents from the respondent and maintained that position throughout the course of the hearing. It now appears that the applicant only seeks access to a single document described by the respondent as a Report by the Casino Surveillance Division of the New South Wales Department of Gaming and Racing ("Department") to the Authority dated 5 March 1996 containing the results of investigations into allegations made in the Sydney Harbour Casino Internal Audit Report. The said Internal Audit Report is dated December 1995. The disputed document is referred to in these reasons as "the Report".

3 The issues in these proceedings may be cast as follows: (a) Does the Report contain information that was obtained in the course of an investigation of an application for a relevant licence within the meaning of section 148(7)(b) of the CC Act? (b) If the Report does contain such information, does the secrecy provision in section 148(7) of the CC Act render the Tribunal unable to continue to deal with the matter under the FOI Act? (c) Is the Tribunal able to exercise the discretion given to the Authority by section 148(2) of the CC Act to release the Report to the applicant in the public interest? (d) In the alternative, do the FOI Act exemptions relied on by the respondent apply in the present case, and, if they do, is there any discretion in the Tribunal that "overrides" the said exemptions so that the Report might be released. The exemptions relied on by the respondent are: Schedule 1, clause 11 (confidential information), clause 12 (secrecy provisions), clause 9(1)(a) (internal working documents), clause 10 (privilege) and clause 6 (personal affairs). 4 The documentary evidence of the applicant comprised: two affidavits of the applicant affirmed 22 August 2000 and 5 July 2000 respectively; a letter dated 27 December 1995 from Mr LG Le Compte, the Chief Executive of the Authority to Mr Ron Harrex, Director of Casino Surveillance, Casino Surveillance Division of the Department which, inter alia, sought an investigation under the CC Act (Exhibit 1- which I directed to be confidential to both parties to these proceedings until further order); a letter from Mr LG Le Compte dated 19 July 1997 being a reference regarding the applicant (Exhibit 2); a letter from Mr LG Le Compte to Mr Harrex dated 28 February 1996 (Exhibit 3); a letter from Mr Andre Hilliou, Chief Executive Officer of the Sydney Harbour Casino to Mr LG Le Compte dated 13 February 1996 (Exhibit 4); and a letter from the Minister for Gaming and Racing to the Member for Hawksbury dated 1 November 2000 concerning the applicant and the disputed document (Exhibit 5). The applicant was not cross-examined on his affidavits. In addition, oral evidence was given by the following people: + Mr Raymond Taggert, a person questioned during the course of the investigation leading up to the making of the Report, + Mr Graeme Lewes Crothers, an investigator employed by the Department at the relevant time, + Mr Stephen Wilson, an investigator employed by the Department at the relevant time, + Mr George Gulyas, former accountant for the Sydney Harbour Casino, and + Mr Lindsay Graham Le Compte.

5 The documentary evidence of the respondent comprised the following: + An affidavit affirmed 26 June 2000 of Mr Ronald Lindsay Harrex, the Director of Casino Surveillance appointed under Part 7 of the CC Act and author of the Report; + The Report (included in Confidential Exhibit A); + A bundle of documents including the original FOI application dated 1 November 1999, the original FOI determination dated 19 November 1999, the application for an internal review of the decision and the internal review decision dated 4 January 2000 (Exhibit B).

6 Oral evidence was given by Mr Harrex.

7 A number of written submissions or documents in the nature of submissions were filed and considered by the Tribunal. They were: respondent's Additional Reasons for Determination of the FOI application filed 15 June 2000; letter from the respondent's solicitors dated 24 August 2000 to the Registrar of the Tribunal concerning reliance on clauses of schedule 1 of the FOI Act; applicant's written submissions filed 23 August 2000; respondent's written submissions and chronology filed 28 August 2000; respondent's submissions on jurisdiction filed 15 November 2000; applicant's further submissions filed 19 January 2001; and, the Respondent's submissions in reply 23 February 2001. The Tribunal is grateful to the legal representatives of both parties for the careful preparation and delivery of their written submissions and for the clarification and narrowing of the issues which ensued.

8 From the evidence, I make the following findings. On 18 July 1994 the applicant commenced employment as Vice President, Human Resources with Sydney Harbour Casino, the then operator of the Sydney Casino ("the Operator"). The Operator held the Casino licence under Part 2 of the CC Act (which provides for the operation of only one casino licence under that Act at any one time).

9 On 22 August 1995 the applicant applied to the Authority for a special employee's licence under Part 4 of the CC Act. He was granted a provisional licence on about 7 September 1995. The application was then referred to Mr Ronald Harrex, the Director of Casino Surveillance who was appointed under section 102 of the CC Act and an employee of the Department ("the Director"). It was referred for investigation and report pursuant to section 50 of the CC Act. In accordance with his usual practice, the Director then caused a number of probity, criminal and financial checks of the applicant to be made with law enforcement and credit agencies. Further information was also sought of the applicant.

10 Prior to the finalisation of any such investigation, an accountant employed by the Operator drafted a report which he did not sign concerning the applicant which was given by an officer of the operator to the Authority which, in turn, delivered the report to the Director under cover of a letter dated 27 December 1995 (Exhibit 1). In the said letter, the Chief Executive of the Authority in light of the said report requested the Director to institute investigation action and report on the following two issues: (a) Whether action should be taken to cancel [the applicant's] licence as a special employee; and (b) Whether any other action should be taken in relation to the matters contained in the report.

11 It is important to note that as at the date of the said letter, the Director's investigation into the applicant's application for a special employee licence was ongoing. The receipt of the letter from the Authority caused the Director to appoint two investigators from within the Department to investigate and draw a preliminary draft report for him. Numerous persons were interviewed between December 1995 and March 1996 in the course of this investigation.

12 On 13 February 1996 the applicant's employment with the Operator was terminated. On the same day the Operator notified the Authority in writing of the applicant's termination (Exhibit 4) and the applicant surrendered his provisional licence to the Authority. The applicant contends, and I accept, that he told the 2 investigators of the Department of his termination verbally on about that day.

13 On 28 February 1996 the Authority advised the Director in writing of the termination and did not request the Director to do anything further in relation to the new investigation. In particular, the Authority did not request the provision of any report or interim report from the Director.

14 Notwithstanding the termination of the applicant's employment on 13 February 1996, the investigation did not cease. It continued for a few more weeks during which time a number of people were interviewed. It concluded on 5 March 1996 when the Director signed the report and sent it to the Authority. It seems to me that the investigation may have continued for a number of reasons. One reason was that the investigation was not only about the applicant. There were other matters that related to the investigation concerning the applicant. Another reason might have been that the formal letter advising the Director of the termination of the applicant did not arrive until about 28 February 1996. It might also be the case, as is noted in the Report itself, fourth paragraph, that as at 13 February 1996, the applicant did not accept the lawfulness of his termination which was said to be the subject of litigation.

15 The applicant contends, through his counsel, that for a number of reasons, it is appropriate to describe the investigation as a review of the applicant's provisional licence and whether or not that licence should be cancelled rather than an application as to whether a full licence should be granted. In other words, it was said to be properly characterised as an investigation of a possible cancellation of a provisional licence for which separate statutory provision is made in section 59 of the CC Act.

16 The appropriate characterisation of the new investigation is the crucial factor from which flows the primary determinations in this case. In my opinion, the new investigation is able to be characterised as both an investigation of an application for a licence under section 50 of the CC Act and an investigation into possible disciplinary action against a licensee pursuant to section 54(4) when read with section 59(2) of the CC Act. Those sections are each contained within Part 4 of that Act.

17 This is so not only from my consideration of the oral evidence, and in particular the oral evidence of the Director (esp Transcript, 16 November 2000 at pp69-70), but also from a detailed reading of the Report itself. It is not contested between the parties that the applicant is aware that the Report, in effect, exonerates the applicant from any allegation or suggestion of wrongdoing in relation to his time with the Casino in regard to the matters investigated (see also, Exhibit 5). In paragraph 10.1 of the Report, it is made clear to me (without setting out the content of the Report here) that in his creating the Report, the Director was relying at least in part on the powers of investigation of an application for a special employee licence under section 50 of the CC Act. I consider that it was permissible for him to do so under the CC Act.

18 Accordingly, the question whether the Report contains information that was obtained in the course of an investigation of an application for a special employee licence within the meaning of the second bullet point in section 148(7)(b) of the CC Act must be answered yes. Section 148 of the CC Act provides: "148 Secrecy (1) A person who acquires information in the exercise of functions under this Act must not, directly or indirectly, make a record of the information or divulge the information to another person, except in the exercise of functions under this Act. Maximum penalty: 50 penalty units. (2) Despite subsection (1), information may be divulged: (a) to a particular person or persons, if the Authority certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a prescribed person or prescribed authority, or (c) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates. (3) A person cannot be required: (a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge to any court any information that has come to the person's notice in the exercise of the person's functions under this Act. (4) Despite subsection (3), a person may be required to produce a document or other thing in a court or to divulge information to a court if: (a) the Authority certifies that it is necessary in the public interest to do so, or (b) a person to whom the information relates (or to whom the information contained in the document or thing relates) has expressly authorised it to be divulged to or produced in the court. (5) An authority or person to whom information is divulged under subsection (2), and a person or employee under the control of that authority or person, are, in respect of that information, subject to the same rights, privileges and duties under this section as they would be if that authority, person or employee were a person exercising functions under this Act and had acquired the information in the exercise of those functions. (6) This section does not apply to the divulging of information to, or the production of any document or other thing to, any of the following: • the New South Wales Crime Commission, • the Independent Commission Against Corruption, • the National Crime Authority, • any other person or body prescribed for the purposes of this subsection. (7) This section does not prevent a person being given access to a document in accordance with the Freedom of Information Act 1989, unless the document: (a) contains matter the disclosure of which could reasonably be expected to do any of the following: • prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, • enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, • prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (b) is a document the disclosure of which would disclose any of the following information: • information concerning the business, commercial, professional or financial affairs of an applicant for a casino licence or a licence under Part 4, • information obtained in the course of an investigation of an application for such a licence, • information concerning the system of internal controls and administrative and accounting procedures for a casino. (8) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. produce includes permit access to." 19 On my reading of the Report, it plainly contains information that was obtained in the course of an investigation of an application for a special employee licence as well as information that related to other matters connected with or tied up in that investigation. Accordingly, I find that the Report is a document the disclosure of which would disclose information obtained in the course of an investigation of an application for a licence under Part 4 of the CC Act within the meaning of section 148(7)(b) of that Act.

20 As the Report is protected by the secrecy provision in section 148(7)(b) of the CC Act, and as there is no other power in the FOI Act that is applicable in the present circumstances, the Tribunal is unable to continue to deal with the matter under the FOI Act. While it would have been better for Parliament to have placed the CC Act provision in Schedule 2 of the FOI Act where exempt bodies are listed, the intention of Parliament is clear. Documents covered by section 148(7) of the CC Act, once properly held to be so, are, in effect, exempt from production under the FOI Act.

21 During the course of the hearing I asked the parties for submissions on whether the Tribunal was able to exercise the discretion given to the Authority to release the documents to the applicant in the public interest in sub-sections 148(2) or (4)of the CC Act. Having considered those submissions, and notwithstanding that the Tribunal ordinarily stands in the shoes of the administrator for the purposes of reviewing a reviewable decision, I do not think the Tribunal can exercise powers not directly sourced in the FOI Act for the reasons set out in Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133 at [65] to [73].

22 If, contrary to my view that the Tribunal does not have a discretion to release document falling within the scope of section 148(7)(b) of the CC Act, I would be inclined to release an edited version of the Report to the applicant. While it is not strictly necessary for me to express this view, I consider that were the Tribunal empowered to order the release of the Report in the public interest under the CC Act or the FOI Act, I would order its release to the applicant. Serious allegations were made against the applicant. The applicant is aware they were not substantiated in the Report. The applicant is entitled to know, in some detail and not in a cursory fashion, the results of the investigation from the source document itself, the Report. However, given the view I have reached concerning the operation of the secrecy provision of the CC Act, I am not permitted to release or direct the release of the Report in any form in this matter.

23 None of this prevents the respondent agency from releasing the Report or an expurgated version of it in the public interest pursuant to section 148(2) of the CC Act.

24 It is not necessary for me to address the alternative grounds put by the respondent in reliance on the exemptions under Schedule 1 of the FOI Act. However, in expressing my view that but for the secrecy provision of the CC Act I would have been inclined to release an edited version of the Report to the applicant, I have taken into account the further exemptions relied upon by the respondent under the FOI Act. None of those exemptions would preclude the exercise of an override discretion so as to cause the release to the applicant of the Report in some substantial form were that course available to the Tribunal.

25 I determine that the decision under review is affirmed. The exhibits are to be made available for return or returned to the appropriate parties after the expiration of 28 days from today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.