Dawson-Wells v Office of the Information Commissioner & Anor [2020] QCATA 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dawson-Wells v Office of the Information Commissioner & Anor [2020] QCATA 60 PARTIES: BETH NARELLE DAWSON-WELLS (applicant/appellant) v OFFICE OF THE INFORMATION COMMISSIONER (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) APPLICATION NO/S: APL125-19 MATTER TYPE: Appeals DELIVERED ON: 6 May 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Appeal from the decision of the first respondent of 29 March 2019 dismissed. On the application of the second respondent, order that until further order, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66(1), publication of the contents of a document or other thing produced to the Tribunal, or any order made or reasons given by the Tribunal, is prohibited to the extent that it would disclose: (a) Paragraph 16 of the Appellant’s submission of 4 October 2019. (b) Numbered paragraph 2 at page 21 of the materials filed on 4 October 2019 (being an email sent by the appellant to Messrs MacSporran QC, Kennedy and Brooks (sic) dated 6 April 2018. (c) Paragraph 52 of the appellant’s submissions in reply, as filed 6 and 25 November 2019. -- 1 of 11 -- 2 (d) Correspondence from the appellant to Ross Martin SC dated 2 June 2012, a copy of which is at pages 60 to 64 of the appellant’s submissions filed on 6 November 2019, and at pages 16 – 20 of the appellant’s amended submissions filed on 25 November 2019. (e) The name of the female identified at paragraph 14 of the appellant’s submissions filed on 6 November 2019, which was removed from the amended submissions filed on 24 November 2019. (f) The submissions of the appellant filed in the Tribunal on 25 February 2020. (g) Pages 4 and 5 of the submissions of the appellant filed in the Tribunal on 20 April 2020. The submissions of the appellant filed in the Tribunal on 25 February and 20 April 2020 be kept on the file in a sealed envelope marked “Not to be opened except by, or by order of, a Judicial Member, Senior Member or the Principal Registrar of the Tribunal, or by the Registrar of the Court of Appeal.” The respondents file and serve any submissions in writing in support of an order for costs by 4 pm on 22 May 2020 If any such submissions are filed, the appellant file and serve any submissions in response by 4 pm on 5 June 2020. Any question of costs will be decided by the Tribunal on the papers on a date to be fixed. CATCHWORDS: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – EXEMPT DOCUMENTS – DOCUMENTS AFFECTING ENFORCEMENT OR ADMINISTRATION OF THE LAW – documents comprising information which is exempt information within Schedule 3 – whether necessary to apply balance of public interest test before deciding whether to disclose – whether Information Commissioner can exercise discretion to disclose exempt documents – appeal to Appeal Tribunal dismissed – whether non-publication order concerning irrelevant material in submissions appropriate ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Non-publication order – whether order appropriate – submissions including -- 2 of 11 -- 3 allegations against persons not parties to appeal and irrelevant to appeal – order made Right to Information Act 2009 s 47, s 48, s 105, Schedule 3 s 10(4). Crime and Corruption Act 2001 s 33. Queensland Civil and Administrative Tribunal Act 2009 s 66. BL v Office of the Information Commissioner & Anor [2012] QCATA 149 – followed. J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 – considered. Legal Services Commission v XBV [2018] QCAT 332 – considered. Russell v Russell (1976) 134 CLR 495 – cited. Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29 – cited. ZIL v Punchard & Anor [2018] QCAT 274 – cited. REPRESENTATION: Applicant: Self-represented Respondents: First respondent was self-represented Second respondent was self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION This is an appeal from a decision of the first respondent. The appellant applied in May 2018 to the second respondent for access under the Right to Information Act 2009 (Qld) to particular documents sent to or from the second respondent. The second respondent refused access to nine documents, on the ground that they were exempt documents under that Act. An internal review, requested by the appellant, confirmed that position, although access to part of one document was allowed, apparently as a matter of discretion under s 48(3). The appellant sought review of that decision by the first respondent. On 29 March 2019 the first respondent confirmed the decision of the first respondent. It is from that decision that this appeal is brought. Under the RTI Act s 119 the appellant is entitled to appeal to the Appeal Tribunal from the decision of the first respondent. The appeal is only on a question of law, and may only be by way of a rehearing. On 24 April 2019 the appellant filed an Application to review a decision seeking to review the decision of the first respondent of 29 March 2019. That is not the correct procedure in the case of an appeal from the first respondent. On 3 June 2019 the Tribunal President decided that the application would be accepted as an application to appeal subject to the appellant filing an application in Form 39 by 4 pm on 17 June 2019. That was done. -- 3 of 11 -- 4 The appellant has filed written submissions in support of the appeal. The first respondent filed short formal submissions to assist the Tribunal concerning the nature of the appeal to the Tribunal, but otherwise has taken no active part in the appeal. The second respondent has filed submissions in relation to the ground of appeal raised by the appellant, and has also filed an application for a non-publication order; the parties have filed submissions in relation to that application. This matter was originally set down for an oral hearing on 6 May 2020. Following Practice Direction No. 4 of 2020 of the President of the Tribunal, the parties agreed to the matter proceeding on the papers, on the basis that they would be available that day for a telephone hearing if required by the Tribunal. In the event, no such telephone hearing was required. Background At one time the applicant was the complainant in a criminal prosecution, which was discontinued after her cross-examination at the trial. Subsequently she was the subject of a criminal investigation, following which an indictment charging her with perjury at the earlier trial was presented in the District Court. That prosecution was also ultimately discontinued. In 2017 she made a complaint to the second respondent about the conduct of a particular police officer involved in the investigation which led to her prosecution. The second respondent referred the complaint to the police ethical standards command for investigation. I take it that, following that investigation, the complaint was dismissed. The applicant applied under the Act for access to documents relating to that investigation. For the purposes of the review, there were two relevant items in the appellant’s request for access, and the respondents identified nine relevant documents, four within the first request item and five within the second. Access was denied to eight of the documents in full, and to the ninth in part, on the ground that under the Act s 48(3) the information in the documents was brought into existence for the purpose of an investigation being carried on by a “prescribed crime body”, a term which under the Act included the second respondent. Such a document is covered by the list of exempt documents in Schedule 3 of the Act. There is an exception to this exemption, if the investigation is concluded and the investigation was about the applicant for access. The appellant relied on that exception, but the second respondent concluded that it did not apply, on the ground that the investigation was about the police officer the subject of the appellant’s complaint in 2017. That conclusion was also confirmed by the first respondent on the review. Legislation The relevant provisions of the Act are as follows. By s 23 of the Act, a person has a right to be given access to documents of an agency, “subject to this Act”. The grounds on which access may be refused are set out in s 47, which so far as is relevant provides: (2) It is the Parliament’s intention that— (a) the grounds are to be interpreted narrowly; and (b) an agency or Minister may give access to a document even if a ground on which access may be refused applies. (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister— -- 4 of 11 -- 5 (a) to the extent the document comprises exempt information under section 48; or (b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; ….. It is clear from the wording of s 47(3) that s 48 in paragraph (a) and s 49 in paragraph (b) provide alternative grounds on which access may be refused. Section 48 provides: (1) If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest. (2) Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest. (3) However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access. (4) In this Act— exempt information means the information that is exempt information under Schedule 3. Section 49 provides in subsection (1) that “If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.” The balance of the section sets out the process by which the agency or Minister determines whether or not access to the document would, on balance, be contrary to the public interest; it is unnecessary to refer to it. The scheme of the legislation is clear enough. If and to the extent that a document comprises information which is exempt under s 48, the agency may refuse access to it under s 47(3)(a). In such a situation, it is unnecessary to consider the public interest balance test in s 49. External review by the first respondent is covered in Part 9 of Chapter 3 of the Act. The powers of the first respondent on the review include those set out in s 105, which provides: (1) In the conduct of an external review, the information commissioner has, in addition to any other power, power to— (a) review any decision that has been made by an agency or Minister in relation to the access application concerned; and (b) decide any matter in relation to the access application that could, under this Act, have been decided by an agency or Minister. (2) If it is established that a document is an exempt document or a contrary to public interest document, or contains exempt information or contrary to public interest information, the commissioner does not have power to direct that access to the document, or the document to the extent of the information, is to be given. (3) Any decision of the commissioner under this section has the same effect as a decision of the agency or Minister. It is clear from s 105(2) that the first respondent, on a review, does not have the power to exercise the discretion conferred on the agency by s 47(2)(b), and again in s 48(3), to choose to release a document or part of a document notwithstanding that it -- 5 of 11 -- 6 comprises exempt information. Section 119 then permits an appeal to the Appeal Tribunal against a decision on review by the information commissioner. Subsection (2) limits the appeal to one only on a question of law, while subsection (5) provides that the appeal may only be by way of a rehearing. Schedule 3 provides, in s 10(4), that “information is exempt information if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body.” The term “prescribed crime body” is defined in s 10(9) as including the second respondent, and for it the “prescribed functions” are “the crime function, the intelligence functions and the corruption functions.” For the meaning of these terms, one is referred to the Crime and Corruption Act 2001. That Act in s 33 defines the “corruption functions.” It provides: (1) The commission has the following functions for corruption (the corruption functions)— (a) to raise standards of integrity and conduct in units of public administration; (b) to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in Section 34. (2) The commission’s corruption functions also include— (a) investigating and otherwise dealing with— (i) conduct liable to allow, encourage or cause corrupt conduct; and (ii) conduct connected with corrupt conduct; and (b) investigating whether corrupt conduct or conduct mentioned in paragraph (a)(i) or (ii) may have happened, may be happening or may happen. Each of the respondents concluded that the relevant documents consisted of information which fell within s 10(4) of Schedule 3, and there was no challenge to that finding on appeal. Ground of appeal The appellant identified one ground of appeal: the first respondent erred in law in that she unreasonably failed to exercise, or did not consider whether she should exercise, the discretion granted to her under s 105(1)(b) of her Act. The appellant went on to identify particulars of this error, in terms which make it clear that her point is that the Act on its true construction requires a decision maker to apply the public interest test in access under s 49 in respect of each of the identified documents. The first respondent had approached the matter on the basis that, if the documents were of a type that fell within an item in Schedule 3 to the Act, under s 48(2) they were exempt documents, and it followed that the public interest test did not need to apply. It is however not correct to say, as the appellant did in paragraph 5 of the “particulars”, that the first respondent did not address the question of whether the second respondent had erred in failing to apply the public interest test. The first respondent addressed -- 6 of 11 -- 7 this point at [26] to [31] of the reasons. It is sufficient to quote paragraphs [28] and [30]: I consider that the wording of the RTI Act is plain: an agency is entitled to refuse access to a document if it is satisfied that the information meets the description of a category set out in schedule 3 of the RTI Act. The exemptions set out in schedule 3 of the RTI Act – including the Prescribed Crime Body Exemption – do not require or allow consideration of public interest issues. Parliament has determined that disclosure of these categories of information would be contrary to the public interest. Accordingly, if information falls within one of the categories of exempt information prescribed in schedule 3, a presumption exists that its disclosure would be contrary to the public interest, and no further consideration is permitted on external review. In my opinion those propositions do not involve any error of law. Indeed, I entirely agree with what was said there. The wording of the Act is clear. If a document comprises information which meets the description of the information covered by an item in Schedule 3, the document is exempt and that is the end of the matter. That is made clear by the statement that the Parliament has made the determination that the public interest balance lies against disclosure. The appellant’s challenge on this point must fail. The second respondent, in written submissions, has adopted a different interpretation of the appellant’s point: that the first respondent erred in failing to exercise the discretion available to an agency to release a document notwithstanding that it is exempt under the Act. That is not how I interpret the ground of appeal, but if that is the correct interpretation, it is equally without substance. It is quite clear from the terms of s 105(2) that no such discretion resides in the first respondent, and the first respondent was correct in not purporting to exercise it. The first respondent, at [29] referred to the decision of the Honourable K Cullinane QC in BL v Office of the Information Commissioner & Anor [2012] QCATA 149 at [13], where the same thing was said. I respectfully agree with those reasons. What the first respondent had to decide on external review was whether the documents identified in the review contained information which fell within the description of s 10(1) of Schedule 3, and not within the terms of the exemption in s 10(2) of the schedule. That was done, and there is no challenge to those decisions in this appeal. Once that point was reached, the first respondent was bound under the Act to confirm the decision not to release the documents containing that information. That is what the first respondent did, and there was no error of law involved in doing so. The appeal must be dismissed. The appellant, in a document attached to the Form 39 application, listed a number of orders sought from the Appeal Tribunal. The first was that the respondent (presumably the first respondent) produce and provide to the appellant all of the documents requested from the second respondent. That order is clearly not appropriate, because the decision of the first respondent did not involve any error of law, and because, by the time the matter reached the first respondent, the scope of the application for access had been narrowed to two categories of document, of which a total of nine existed. This proceeding is therefore confined to issues of law involving those nine documents. The appellant then sought a further 13 orders all of which appear to relate to a broader campaign the appellant is pursuing about various people, generally people involved -- 7 of 11 -- 8 in one or both of the prosecutions referred to earlier. It is unnecessary to set out details of these, because they are all obviously irrelevant to the question of whether the first respondent erred in law in the decision actually made. That is the only function of this Tribunal in this matter. Finally, the appellant sought an order for costs. Apart from the fact that the appellant was self-represented before the Tribunal, and nothing in her material suggests the involvement of any legal professional in this proceeding, her lack of success in the appeal means that no order in her favour is appropriate. On 18 October 2019 the appellant filed a further set of submissions in the Tribunal, pursuant to a direction given by the President on 2 July 2019, although 24 days late. It repeated the ground of appeal and particulars of the ground originally filed with the first application, but otherwise does not appear to say anything relevant to the issue before me, being just a series of complaints about various people the appellant alleged have wronged her one way or another, as a part of her wider campaign against these people. Attached were a number of documents which appear equally irrelevant. On 25 November 2019 the appellant filed what purport to be submissions in reply to the submissions filed by the respondents in the previous month, only 6 days after the time limited by the order of 2 July 2019. Much of it is directed to her pursuit of her wider campaign. Those parts which do respond to the second respondent’s submissions1 are unpersuasive. The appellant referred to what constituted the public interest at common law, and matters concerning public interest immunity, which is not the relevant test, but otherwise did little more than express disagreement with those submissions. Again a number of irrelevant documents were attached. On 25 February 2020 the appellant filed a copy of a submission made by her to the second respondent in relation to a different matter. The relevance of this did not emerge. It did not assist the appellant’s case on the appeal. Application for non-publication order On 4 February 2020 the second respondent filed in the Tribunal an application for a non-publication order. The material in respect of which the order was sought was identified as: (a) Paragraph 16 of the Appellant’s submission of 4 October 2019. (b) Numbered paragraph 2 at page 21 of the materials filed on 4 October 2019 (being an email sent by the appellant to Messrs MacSporran QC, Kennedy and Brooks (sic) dated 6 April 2018. (c) Paragraph 52 of the appellant’s submissions in reply, as filed 6 and 25 November 2019. (d) Correspondence from the appellant to Ross Martin SC dated 2 June 2012, a copy of which is at pages 60 to 64 of the appellant’s submissions filed on 6 November 2019, and at pages 16 – 20 of the appellant’s amended submissions filed on 25 November 2019. 1 Paragraphs 18 – 23. At paragraphs 31 – 41 there are unexceptional submissions about statutory construction, which do not assist here, where the meaning of the Act is clear. -- 8 of 11 -- 9 (e) The name of the female identified at paragraph 14 of the appellant’s submissions filed on 6 November 2019, which was removed from the amended submissions filed on 25 November 2019. Submissions were filed by the second respondent in support on the same day. On 25 February 2020 the appellant filed submissions in response. On 11 April 2020 the second respondent filed submissions in reply, which sought to include the appellant’s submissions in response filed 25 February 2020 in the scope of the non-publication order. Then on 20 April the Tribunal received further submissions in response from the appellant. The Queensland Civil and Administrative Tribunal Act 2009 s 66(2) authorizes a non- publication order if the Tribunal considers it necessary having regard to five specific matters. One of the five is “to avoid the publication of confidential information or information whose publication would be contrary to the public interest”, and the last of them is “any other reason in the interests of justice”. Section 66(4)(a) provides that the Tribunal’s power to make such an order is exercisable only by “the Tribunal as constituted for the proceeding.” That makes it clear that the power is to be exercised by the person who decides the substantive proceeding, and shows that it is an ancillary order made in a proceeding, rather than a separate proceeding.2 I appreciate that the starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV [2018] QCAT 332 at [26], where the Honourable P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. In that case there was evidence that the respondent had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder, and there was a risk of suicide. A non-publication order was made under another Act, as it concerned a legal practitioner. Reference was made in XBV to the decision of J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, where the open court principle was discussed. It was said at p 45 that under that principle, as applied in courts, “information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.”3 As a general proposition, that principle extends to documents on a court file.4 I do not propose to say much about the content of this material. The first four items contain allegations about the actions of a person who at one time is said to have worked with the appellant, and who is alleged to have had some contact with one of the persons involved in the prosecutions. This material is completely irrelevant to anything I have to decide, and is therefore a gratuitous attack on this person, who is not involved in this proceeding and who has no opportunity to defend herself. It is apparently an attempt to attack this person under the cloak of the public nature of the Tribunal files, which can be seen as a type of abuse of the process of the Tribunal. If this material was included in an affidavit filed in a court, an order would be made that it be taken off the file, as scandalous. In those circumstances, an order under s 66 is appropriate. 2 At one point the appellant was asserting that it should have been given a different file number. That was not appropriate. 3 See also Russell v Russell (1976) 134 CLR 495 at 520. 4 Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29 at [14]. -- 9 of 11 -- 10 In respect of these items, the second respondent also relied on the Crime and Corruption Act 2001 s 213. In circumstances where I consider that the non-publication order should be made anyway on other grounds, it is unnecessary to consider this ground. The fifth item refers to a name identified in paragraph 14 of submissions filed on 6 November 2019, said to be a breach of an order made by the Tribunal in a separate proceeding involving that person, where the Tribunal ordered that “publication to persons other than the parties and their representatives of the name of the applicant ad her children, and of information that might identify them, is prohibited.”5 The person was identified by name, as was another party to that proceeding, and the context could assist to identify that person as the person with the benefit of that order of the Tribunal. The appellant subsequently filed an amended version of those submissions, with the name replaced by the initials used in that decision of the Tribunal, and in the circumstances I assume that she does not object to this part of the order. In any case, given the circumstances, a non- publication order for this name would be appropriate. On 25 February 2020 the appellant filed a submission in response. Essentially, the appellant’s argument was that this was an attempt by the second respondent to cover up wrongdoing which the appellant had exposed. Unsurprisingly perhaps, the submission did not demonstrate any basis on which the matters referred to were in some way relevant to the current proceeding before the Tribunal. They merely stood as a manifestation of what appears to be the appellant’s desire to expose what she regards as the wrongdoing of others. The submission went on to reproduce the parts of the earlier submissions covered by items (a) – (d) above. Since that is the material which ought not to be published, it is appropriate for the non-publication order to cover this submission as well. As mentioned earlier, the second respondent filed submissions in reply, and on 20 April the appellant wrote to the President of the Tribunal, replying to that submission. Apart from repeating the assertion that the second respondent’s application is just an exercise in suppressing the truth, the submission says nothing relevant to the application for a non- publication order, and consists largely of yet another stream of allegations of wrongdoing against the person the subject of the allegations in items (a) – (d), the police officer the subject of her complaint to the second respondent, and various other people whose wrongdoing she claims to seek to expose. Most of the contents of pages 4 and 5 of this submission should also be included in the non-publication order, because it covers again the same ground as the material in items (a) – (d) above. Apart from that, so much of the content of the submissions filed by the appellant in relation to the application for a non-publication order are irrelevant and scandalous that I propose to order that they be placed in a sealed envelope, marked “Not to be opened except by, or by order of, a Judicial Member, Senior Member or the Principal Registrar of the Tribunal, or by the Registrar of the Court of Appeal.” The orders of the Appeal Tribunal will therefore be: 1. Appeal from the decision of the first respondent of 29 March 2019 dismissed. 2. On the application of the second respondent, order that until further order, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66(1), publication of the contents of a document or other thing produced to the Tribunal, 5 ZIL v Punchard & Anor [2018] QCAT 274. -- 10 of 11 -- 11 or any order made or reasons given by the Tribunal, is prohibited to the extent that it would disclose: (a) Paragraph 16 of the Appellant’s submission of 4 October 2019. (b) Numbered paragraph 2 at page 21 of the materials filed on 4 October 2019 (being an email sent by the appellant to Messrs MacSporran QC, Kennedy and Brooks (sic) dated 6 April 2018. (c) Paragraph 52 of the appellant’s submissions in reply, as filed 6 and 25 November 2019. (d) Correspondence from the appellant to Ross Martin SC dated 2 June 2012, a copy of which is at pages 60 to 64 of the appellant’s submissions filed on 6 November 2019, and at pages 16 – 20 of the appellant’s amended submissions filed on 25 November 2019. (e) The name of the female identified at paragraph 14 of the appellant’s submissions filed on 6 November 2019, which was removed from the amended submissions filed on 24 November 2019. (f) The submissions of the appellant filed in the Tribunal on 25 February 2020. (g) Pages 4 and 5 of the submissions of the appellant filed in the Tribunal on 20 April 2020. 3. The submissions of the appellant filed in the Tribunal on 25 February and 20 April 2020 be kept on the file in a sealed envelope marked “Not to be opened except by, or by order of, a Judicial Member, Senior Member or the Principal Registrar of the Tribunal, or by the Registrar of the Court of Appeal.” 4. The respondents file and serve any submissions in writing in support of an order for costs by 4 pm on 22 May 2020 5. If any such submissions are filed, the appellant file and serve any submissions in response by 4 pm on 5 June 2020. 6. Any question of costs will be decided by the Tribunal on the papers on a date to be fixed. -- 11 of 11 --