Back in 2015, the Secretary to the Department of Justice and Regulation wrote to the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC) asking it to undertake a review of the practices within the CFA and MFB with respect to discrimination and sexual harassment. In 2018 the Supreme Court held that the inquiry was beyond the power of the VEOHRC (see Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018)).

On 20 March 2018 the United Firefighters Union of Australia, Victorian Branch (the UFU) made a request under Freedom of Information legislation asking VEOHRC

… for all emails, letters and attachments sent or received by VEOHRC ‘in relation to its Independent Equity and Diversity Review of the CFA and MFB during the period 15 December 2017 to 15 March 2018’ between it and the following:

a.            Metropolitan Fire Brigade (MFB);

b.            Country Fire Authority (CFA); and

c.            Emergency Management Victoria (EMV)

VEOHRC made the decision to release one document in full, to grant partial access to three documents and to deny access to 275 documents. The UFU sought a review of this decision, but the outcome was affirmed by the Public Access Deputy Commissioner. The UFU then appealed to the Victorian Civil and Administrative Tribunal (VCAT). VCAT handed down its decision on 17 October 2022 – United Firefighters Union of Australia – Victorian Branch v Victorian Equal Opportunity and Human Rights Commission (Review and Regulation) [2022] VCAT 1193 – 4 ½ years after the initial request.

The concern of the VEOHRC is obvious.  They were conducting an inquiry into discrimination and sexual harassment within the fire services. To do that they went out to seek information from those who could provide that information. Naturally the information was sensitive and was given with a promise of confidentiality. The staff at VEOHRC and those participating in the inquiry believed the inquiry was being conducted under the protection of the Equal Opportunity Act 2000 (Vic).  It was only when the Supreme Court made its ruling in 2018 did it become known that the inquiry was beyond the power of the Commission but by that time the information had been collected.

The UFU argued (at [19]) that it sought access to the documents ‘in order to shed light on what led to the review being commissioned; the decision to continue with the review despite the issues raised by UFU; and the apparent unauthorised disclosure of information to the media’.

Ms Simone Cusack, Head of Policy and Research gave evidence on behalf of VEOHRC. The tribunal summarised the effect of her evidence (at [28]) as:

… the effectiveness of a review in promoting compliance with the EO Act is dependent on ‘a deep level of trust and confidence’ that VEOHRC will conduct its review professionally and sensitively and maintain appropriate safeguards for the collection, analysis and recording of confidential and sensitive information. She said that in order to build the trust required for VEOHRC to receive information of the kind, it must operate with the promise and expectation of confidentiality of communications. She said that VEOHRC ‘currently routinely’ takes precautions when conducting research and reviews to ensure appropriate information is kept confidential and trust is maintained.

Her evidence (at [30]) was:

Individual participants were sometimes the victim of rape or attempted rape or death threats, she said. They were asked about the impact on them of the conduct and the employer’s response. Some participants had attempted suicide. Some still had to work alongside persons alleged to have bullied them. VEOHRC sought to make sure participants felt safe to provide information. There were people who would feel safe to disclose behaviour to VEOHRC as an external, independent organisation. But some people were so fearful of victimisation, so fearful that the employer would find out they had disclosed information, that they had withdrawn from the review. The degree of distress and concern those people had meant that VEOHRC did not draw distinctions between what information would be protected and what information would not be protected. The consent forms provided to them made the confidentiality of their information clear. Ms Cusack said that duty holders [ie agencies like the CFA or MFB (at it then was)] also provided highly sensitive confidential information such as minutes of board meetings and complaints data. She said that they would not do that to the same extent if they were not assured about the confidentiality of the information.

With specific reference to the fire service inquiry, she said (at [32]) ‘VEOHRC set up a ‘confidentiality framework’ with MFB and CFA ‘to document the expectation that all communications would be kept strictly confidential’’.

At [39] the Tribunal reported:

Ms Cusack said that, based on her experience in overseeing VEOHRC’s research and reviews, she expected that release of the documents requested by the UFU would likely result in duty holders being reluctant to engage VEOHRC to conduct a review or to agree to VEOHRC undertaking research. She said that in discussions with organisations considering review or research, confidentiality was always ‘front of mind’… Reviews require organisations to ‘open themselves up’ to an assessment of their performance on issues that are by their nature often sensitive and controversial, she said. Ms Cusack said that while organisations engage VEOHRC to learn and improve their programs and practices, they regularly seek a level of assurance and agreement as to how any information will be shared publicly. VEOHRC is able to reassure organisations that it can maintain confidentiality, pointing to work done previously for other organisations and to the secrecy provision in the EO Act. Ms Cusack said that she had found that this provided a ‘level of comfort’ that allowed organisations to have confidence that VEOHRC is a trustworthy recipient of their information. She said that, in her experience, without that reassurance, organisations were unlikely to be willing to engage in reviews or research.

And at [41]:

Ms Cusack stated in effect that there is a real risk that any order to release the requested documents would significantly limit VEOHRC’s capacity to undertake its work, in the public interest, of improving compliance with the EO Act and identifying lessons for effectively dealing with sexual harassment.

With respect to the Freedom of Information Act 1982 (Vic), it provides for a general right of access to information held by the Victorian government and its agencies, but there are exemptions where information is provided in confidence (s 46) or where the information is protected by a secrecy provision in another Act (s 47).  The Equal Opportunity Act does have a secrecy provision (s 176).  That section:

… applies to information concerning the affairs of any person that is or has been obtained by a person to whom this section applies

(a) in the course of performing functions or duties or exercising powers under this Act or an old Act; or

(b) as a result of another person performing functions or duties or exercising powers under this Act or the old Act. applies to information received.

Counsel for VEOHRC (at [54]):

… acknowledged that, for the documents to be exempt [from production under the FOI Act], VEOHRC must show that the documents contain or would communicate information that was communicated to it in confidence, and that disclosure would be contrary to the public interest because it would be reasonably likely to impair VEOHRC’s ability to obtain similar information in future.

The Tribunal found (at [60]) that ‘the MFB documents, the CFA documents and the EMV documents contain or would communicate information that was communicated to VEOHRC in confidence’.  Senior Member Billings then had to consider the public interest test.  At [63] he said ‘disclosure would be reasonably likely to impair VEOHRC’s ability to obtain similar information in future. Ms Cusack described in detail, including from her personal experience, the need for individual participants and duty holders to be reassured about confidentiality and the real chance that, without that reassurance, they would not engage with VEOHRC.’

The Tribunal rejected the argument that the secrecy provision of the Equal Opportunity Act did not apply because (at [69]) ‘the information in question was not obtained by a relevant person in the course of performing functions or duties or exercising powers under the EO Act’. The Tribunal relied on the words of Gageler J of the High Court of Australia in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable no.1), quoted at [82].  The effect of his decision was even if a law was found to be invalid or beyond power, that did not deny the fact that the law had been acted upon to affect rights or interests.

The factual existence of the [invalid law] might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the [invalid law] itself.

In the UFU case it was not an invalid law, but an invalid exercise of power under a valid law, but the principle remains.  As counsel for VEOHRC said (at [83])

… while the Fire Services Review was … invalid, the review was not a nullity in the sense that it had no existence or was incapable of attracting legal consequences. The carrying out of VEOHRC’s tasks by its officers had consequences including the creation of a statutory right to confidentiality under section 176 of the EO Act.

Even if the documents were exempt from disclosure, VCAT could order their release if that was in the public interest ([88]).

The public interest must require release in the sense that it demands or necessitates release.  There is a difference between what is in the public interest and what is of interest to the public.

Senior Member Billings found that the public interest was against disclosure.  He said (at [91]):

I consider that disclosure would be contrary to the public interest because would be reasonably likely to impair VEOHRC’s ability to obtain similar information in the future. I have noted the very significant public interest there is in VEOHRC being able to conduct reviews and related functions. The secrecy provisions in section 176 of the FOI Act safeguard that. In the case of the draft report, disclosure would circumvent the order made by the Court of Appeal. Disclosure of at least some of the other documents in dispute could have a similar effect.

At [118] the Tribunal ‘concluded that the disputed documents are exempt under … the FOI Act and that the public interest override does not apply. I have further concluded that it would be not practicable to grant access to a copy of the documents with deletions …’ The decision of the Commissioner was affirmed and access to the 275 documents was denied.

Discussion

I report this case because I can imagine this whole process may have been the subject of discussion within the CFA, MFB (now FRV) and EMV.  If people had provided information to the inquiry it is important to let them know that the decision by VEOHRC to maintain that confidence has been affirmed.

Equally it is important for members of the UFU (which may also include people who gave information to the inquiry) to know what steps the UFU are taking in this matter. Some may support the UFU’s actions, others may not, but it is worth reporting that the issue of the VEOHRC inquiry is still– six years after it commenced – before the courts and still attracting the attention of the UFU. It is certainly an example of the wheels of justice turning very slowly.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.