Carmody v Information Commissioner (No 2) [2018] QCATA 15
CITATION: Carmody v Information Commissioner & Ors
(2) [2018] QCATA 15
PARTIES: The Honourable Justice TF Carmody
(Applicant)
v
Information Commissioner
(First Respondent)
Queensland Newspapers Pty Ltd
(Second Respondent)
Department of Justice & Attorney General
(Third Respondent)
APPLICATION NUMBER: APL 240-16
PARTIES: Department of Justice & Attorney General
(Applicant)
v
Information Commissioner
(First Respondent)
Queensland Newspapers Pty Ltd
(Second Respondent)
The Honourable Justice TF Carmody
(Third Respondent)
APPLICATION NUMBER: APL 248-16
MATTER TYPE: General administrative review matters
HEARING DATE: 8 November 2017
HEARD AT: Brisbane
DECISION OF: Justice CRR Hoeben
DELIVERED ON: 2 March 2018
DELIVERED AT: Brisbane
ORDERS MADE: 1. The appeal by the applicant and DJAG
against the decision of the IC in her
external review is upheld.
2. The order of the IC of 27 June 2016 is set
aside.
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3. Access to the documents in dispute is
refused
4. The costs of the appeal are reserved
with liberty to the parties to apply to the
Tribunal on 28 days’ notice on the issue
of costs.
CATCHWORDS: APPEAL – right to information – finding by
Information Commissioner (IC) certain
documents should be made available to media
outlets – whether error of law in IC’s
determination – whether IC correctly interpreted
s 12 of Right to Information Act 2009 (Qld) (RTI)
– whether documents in issue documents of
Department of Justice and Attorney General
(DJAG) – whether documents in issue excluded
from RTI Act because of operation of s 17 and
schedule 2, part 2, item 1 – IC’s finding that
Supreme Court part of DJAG for purposes of
RTI Act incompatible with independence of
Supreme Court – error in IC’s interpretation of
ss 14, 17 and schedule 2, part 2, item 1 of RTI
Act – whether documents in dispute were “in
possession” of DJAG and whether DJAG had a
“present legal entitlement” to access
documents in dispute at relevant time – whether
documents in dispute can be properly
characterised as relating to the exercise of the
Supreme Court’s judicial functions – whether
the IC erred by failing to conclude that the
documents in dispute contained “exempt
information” under s 48 and schedule 3, s 8(1)
of the RTI Act – whether disclosure of
documents in dispute would be contrary to the
public interest – IC erred in determining that on
balance it was in the public interest that the
documents in dispute be disclosed – in making
that determination IC took into account
irrelevant considerations and failed to take into
account relevant ones – whether decision on
public interest should be returned to IC for
reconsideration – on re-exercise of discretion
the public interest harm in the disclosure of the
documents in dispute far outweighs any benefit
in their disclosure – access to the documents in
dispute to be refused.
Acts Interpretation Act 1954 (Qld)
Constitution of Queensland 2001 (Qld) s 57, s
58, s 59, s 60, s 61
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Electoral Act 1992 (Qld), s 137
Freedom of Information Act 1982 (Cth)
Invasion of Privacy Act 1971 (Qld), s 45
Judiciary Act 1903 (Cth), s 78B
Right to Information Act 2009 (Qld), s 12, s 17,
s 47, s 48, s 49, s 119, , sch 2, sch 3, sch 4
Supreme Court of Queensland Act 1991 (Qld),
s 15, s 48
Attorney-General (Vic); Ex rel Dale v
Commonwealth [1945] HCA 30; 71 CLR 207 at
267 per Dixon J
Davis v City North Infrastructure Pty Ltd [2012]
2 Qd R 103 at [25]
Federal Commissioner of Taxation v Australia
and New Zealand Banking Group Ltd [1979]
HCA 67; 143 CLR 499 at 504
Fingleton v The Queen [2005] HCA 34; 227
CLR 166
Forge v Australian Securities and Investment
Commission [2006] HCA 44; 228 CLR 45 at [63]
per Gummow, Hayne and Crennan JJ
Gordon Resources v Billiton Mitsubishi [2002]
QCATA 135
Holt v Education Queensland and Anor [1998]
4 QAR 310
Johns v Australian Securities Commission
[1993] HCA 56; 178 CLR 408
Kable v The Director of Public Prosecutions for
the State of NSW [1996] HCA 24; 189 CLR 51
at [107] per Gaudron J, [116] per McHugh J,
[139] per Gummow J;
Kline v Official Secretary to the Governor
General [2013] HCA 52; 249 CLR 645
Mense v Milenkovic (1973) VR 784
Minister for Aboriginal Affairs & Anor v Peko-
Wallsend Ltd & Ors [1986] HCA 40; 162 CLR 24
Nixon v Sirica 487 F.2d 700, 740 (D.C. Cir.
(1973)
Price v The Nominal Defendant [1999] 5 QAR
80
Rajski v Wood & Ors (1989) 18 NSWLR 512
Rochfort v Trade Practices Commission [1982]
HCA 66; 153 CLR 134
Soucie v David 448 F.2d 1067 (D.C. Cir. (1971)
South Australia v Totani [2010] HCA 39; 242
CLR 1 at [1] per French CJ citing Sir Francis
Forbes [1957] HCA 12; 95 CLR 529 at 540
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Tarkine National Coalition Inc v Minister for
Sustainability Environment Population and
Communities [2013] FCA 694; 214 FCR 233
TCL Air Conditioner (Zhongshan) Co Ltd v
Judges of the Federal Court of Australia & Anor
[2013] HCA 5; 251 CLR 533 at [27], [100], [105]
APPEARANCES:
APPLICANT:
RESPONDENTS:
APL240-16
Mr S Doyle QC with Mr J Green for the
Applicant
JM Horton QC for the First Respondent
Ms L Mullins for the Second Respondent
Mr GP Sammon for the Third Respondent
REPRESENTATIVES:
APPLICANT:
RESPONDENTS:
King & Woods Mallesons
Clayton Utz for the First Respondent
Ms L Mullins for the Second Respondent
Crown Law for the Third Respondent
APPEARANCES:
APPLICANT:
RESPONDENTS:
APL248-16
Mr GP Sammon for the Applicant
JM Horton QC for the First Respondent
Ms L Mullins for the Second Respondent
Mr S Doyle QC with Mr J Green for the Third
Respondent
REPRESENTATIVES:
APPLICANT:
RESPONDENTS:
Crown Law for the Applicant
Clayton Utz for the First Respondent
Ms L Mullins for the Second Respondent
King & Woods Mallesons for the Third
Respondent
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REASONS FOR DECISION
HIS HONOUR:
Nature of Proceedings
The above matters are to be heard together. They are appeals pursuant to
s 119 of the Right to Information Act 2009 (Qld) (RTI Act). Such appeals
“may only be on a question of law”. The appeals are against a decision of
the Information Commissioner (IC) by way of external review, dated 27
June 2016, being applications Nos 312478 and 312481.
For ease of identification, Justice Carmody will be referred to as “the
applicant” and the Department of Justice and Attorney General as “DJAG”.
Unless otherwise indicated, references to the Supreme Court are to the
Supreme Court of Queensland.
The applicant has appealed against the decision of the IC on the following
grounds:
a) The Right to Information Commissioner erred in law in the application
of a wrong legal principle to satisfy s 12 of the Right to Information Act
2009 (Qld) (the Act).
b) The Right to Information Commissioner erred in law through the
assumption that administrative arrangements pertaining to the
executive can outweigh the independence of the judiciary.
c) The Right to Information Commissioner erred in law through an
incorrect construction of the Act, which renders the function of
schedule 2, part 2, item 1 of the Act nugatory.
d) The Right to Information Commissioner erred in law in the application
of a wrong legal principle to exclude schedule 2, part 2, item 1 of the
Act.
e) The Right to Information Commissioner erred in law by failing to
conclude that the Unreleased Documents contained “exempt
information” under s 48 and schedule 3, s 8(1) of the Act.
f) The Right to Information Commissioner erred in law by failing to take
into account relevant considerations and taking into account irrelevant
considerations when deciding that disclosure was not contrary to the
public interest.
g) The Right to Information Commissioner erred in law in the application
of a wrong legal principle to exclude schedule 4, part 3, item 22 of the
Act.
DJAG relied upon the following grounds of appeal:
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a) The Information Commissioner made an error of law in her
interpretation and application of schedule 2, part 2, item 1 of the Act in
conjunction with s 17 and s 12 of the Act, leading to the conclusion that
schedule 2, part 2, item 1 did not apply to the information in issue
because the Application for Access documents made by the second
respondent was not made to an entity listed in item 1, schedule 2, part
2 of the Act.
b) The Information Commissioner made an error of law in her
interpretation and application of schedule 2, part 2, Item 1 of the Act
(the “Judicial Functions” exception to the application of the Act) in
finding that the judicial functions exception did not apply to the
information in issue.
c) The Information Commissioner made an error of law in her
interpretation and application of the meaning of “in relation to judicial
functions” in item 1 of schedule 2, part 2 of the Act.
d) The Information Commissioner made an error of law in not fully
considering in her reasons for decision the submissions made to her
by the applicant in the external review conducted by her on the
meaning of “in relation to judicial functions” in item 1 of schedule 2,
part 2 of the Act.
e) The Information Commissioner made an error of law in her
interpretation and application of the public interest balancing test factor
contained in schedule 4, part 3, item 22 of the Act concerning
application of s 45 of the Invasion of Privacy Act 1971.
f) The Information Commissioner made an error of law in her
interpretation and application of the public interest balancing test factor
in schedule 4, Part 4, Item 1 of the Act that “loss of confidence in the
government” is an irrelevant public interest factor, applied to the
judiciary.
Because of the potential for the applicant’s grounds of appeal to raise
constitutional matters, notices were sent to the Commonwealth, States and
Territories of Australia, pursuant to s 78B of the Judiciary Act 1903 (Cth) in
January 2017. None of the relevant Attorneys General sought to intervene
in the proceedings.
Factual background
By application dated 30 March 2015 in external review 312478, Queensland
Newspapers Pty Ltd (Queensland Newspapers) applied to DJAG under the
RTI Act for access to information in the following terms:
“From 1 July 2014, all documents relating to Chief Justice Tim Carmody
dismissing Justice John Byrne from the role of Senior Judge Administrator,
and Justice Byrne’s reinstatement.
Emails, memos, briefing notes and any other documents.”
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DJAG located 107 pages of responsive information. By decision dated 5
June 2015, Ms Edwards of DJAG decided to give full access to 30 pages,
partial access to 7 pages and refused access to 70 pages. Ms Edwards
also refused access to an audio recording of a meeting that took place on
12 February 2015 between the applicant and two other judges.
Ms Edwards refused access on the grounds that:
The information related to the exercise of the Supreme Court of
Queensland’s judicial functions and was therefore excluded from the
RTI Act under s 17 and schedule 2, part 2 item 1 of the RTI Act; or
Disclosure of the information would, on balance, be contrary to the
public interest under s 47(3)(b) and s 49 of the RTI Act.
The public interest factors favouring nondisclosure relied upon by Ms
Edwards were that disclosure of the information in issue could reasonably
be expected to:
prejudice the applicant’s right to privacy; and/or
undermine public confidence in the judiciary.
In External Review 312481 Queensland Newspapers applied to DJAG
under the RTI Act for access to information in the following terms:
“Correspondence between Chief Justice Tim Carmody and judges relating
to the Court of Disputed Returns and the Electorate of Ferny Grove.
Minutes and resolutions of judges’ meetings about the Court of Disputed
Returns and the Ferny Grove Electorate.”
DJAG located 39 pages of responsive information. By decision dated 5
June 2015, Ms Edwards of DJAG decided to give full access to 11 pages,
partial access to 9 pages and refused access to 19 pages.
Ms Edwards refused access to the information on the grounds that:
The information related to the exercise of the Supreme Court of
Queensland’s judicial functions and was therefore excluded from the
RTI Act under s 17 and schedule 2, part 2 item 1 of the RTI Act; or
Disclosure of the information would on balance be contrary to the
public interest under s 47(3)(b) and s 49 of the RTI Act.
The public interest factors favouring nondisclosure relied upon by Ms
Edwards were that disclosure of the information in issue could reasonably
be expected to:
Prejudice the applicant’s right to privacy; and/or
Undermine public confidence in the judiciary.
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On 5 June 2015, Queensland Newspapers applied to the Office of the
Information Commissioner (OIC) for external review of both DJAG’s
decisions refusing it access to the information in issue in each review.
By letter dated 30 June 2015, the applicant contacted OIC to apply to
become a participant in review 312478 and in three other external reviews
that involved him. His application was granted and the IC advised that if
any further application for external review involving him were received by
the OIC she would allow him to participate. Queensland Newspapers was
also granted participant status in review 312481.
The applicant submitted written submissions of his objection to the release
of the information in issue. His grounds for objection were summarised by
the OIC as follows:
Some documents in issue were not documents of DJAG under s 12
of the RTI Act because they were in the possession of the Supreme
Court (a separate entity) and not DJAG at the time the access
application was received by DJAG;
Even if the documents were documents of DJAG for the purposes of
s 12, the documents concerned the exercise of the Supreme Court’s
judicial functions and were therefore excluded from the operation of
the RTI Act by s 17 and schedule 2 part 2 item 1;
Some information was exempt under schedule 3, s 8 of the RTI Act
because its disclosure would found an action for breach of
confidence;
Some information was exempt under schedule 3 s 10(1)(a) of the RTI
Act because its disclosure could reasonably be expected to prejudice
the investigation of a contravention or possible contravention of the
law in a particular case; and
The disclosure of all documents would, on balance, be contrary to
the public interest.
The IC set aside the decisions of DJAG for the following reasons:
The documents in issue are documents of DJAG under s 12 of the
RTI Act and are subject to the RTI Act;
Section 17 and schedule 2 part 2 item 1 of the RTI Act have no
application because the access application was made to DJAG,
which is not an entity identified in schedule 2, part 2, item 1;
None of the information in issue relates to the exercise of the
Supreme Court’s judicial functions;
The information in issue does not comprise exempt information
because its disclosure would not found an equitable action for breach
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of confidence, nor could its disclosure reasonably be expected to
prejudice the investigation of a contravention or possible
contravention of the law in a particular case; and
The balance of the public interest favours disclosure of the
information in issue.
Background to Queensland Newspaper’s applications under the RTI Act
The following matters, whilst not strictly proved by the adduction of
evidence, were accepted by the parties as generally accurate.
The access applications were two of a considerable number made to DJAG
at around the same time by applicants (mostly media organisations)
seeking access to documents about events involving judges of the
Supreme Court during the time the applicant held the position of Chief
Justice. The applicant was appointed Chief Justice on 8 July 2014 and
resigned on 1 July 2015. He is currently a member of the Queensland Civil
and Administrative Tribunal (QCAT) and a Justice of the Supreme Court.
The IC observed at [16] of the review that “the extraordinary and
unprecedented public ventilation of the apparent discord that existed within
the Supreme Court at the relevant time necessarily impacted upon my
consideration of the issues for determination in this review, particularly the
application of the public interest balancing test”. The IC acknowledged the
importance of the Supreme Court as a public institution and that it was
crucial that the public had confidence in the Court’s effective and efficient
functioning. She also acknowledged the importance of protecting the ability
of members of the Court to discuss openly with their fellow Judges their
views about the proper administration of the Court without these
conversations and discussions being made public as a matter of course.
The IC qualified that observation by further commenting that “the sources
of disquiet that existed within the Court, that raised important issues
affecting the administration of the Court, were referred to publicly on
numerous occasions through media reports, public speeches, interviews
given by the applicant and correspondence sent by the applicant to
professional bodies”.
The IC specifically referred to a retirement speech, delivered on 26 March
2015, from the bench by a Supreme Court Justice which referred publicly
to a rift in the Court and to particular issues which that Judge considered
were the cause of the rift:
The applicant’s removal of himself from all trial division sittings in
Brisbane;
The applicant’s actions regarding the constitution of the Court of
Disputed Returns (CDR); and
The applicant’s actions regarding the duties performed by the Senior
Judge Administrator (SJA).
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The IC regarded the issues, the subject of this and other access
applications, to be of significant public importance.
The background to the CDR issue was that following the Queensland
election on 31 January 2015, it was discovered that a candidate in the seat
of Ferny Grove was an undischarged bankrupt and therefore potentially
ineligible to run for Parliament. While counting in the seat continued, and
the outcome remained unclear, the Electoral Commission of Queensland
(ECQ) stated publicly that it was considering its options and that one option
open to it (in the event that it decided that the votes given to the ineligible
candidate had materially affected the result in the seat) included a
challenge in the CDR of the Ferny Grove result, which could result in a by-
election for the district. It was reported that the result in the seat was
potentially crucial in deciding the outcome of the election.
The Supreme Court is the CDR for the purposes of the Electoral Act 1992
(Qld) (Electoral Act). Section 137 of the Electoral Act sets out how the CDR
is constituted. It provides that a single judge may constitute the CDR and
that the Chief Justice may be that single judge or may appoint another
Supreme Court Judge. Since 1995, an internal Supreme Court protocol
had existed that provided for the way in which a judge would be appointed
in advance to constitute the CDR for the next 12 months.
The ECQ eventually decided not to refer the seat of Ferny Grove to the
CDR. However, during the time when it was a possibility there were
meetings and discussions involving the applicant and other Judges of the
Supreme Court regarding the constitution of the CDR in the event of a
referral. This was the background to Queensland Newspaper’s application
for access under the RTI Act to information about this issue.
As regards the position of the SJA, s 48 of the Supreme Court of
Queensland Act 1991 (Qld) (SCQ Act) provides for the governor in council
to appoint a Judge to be the SJA. Justice Byrne had held this appointment
since 2007. Under s 51 of the SCQ Act, the SJA is responsible to the Chief
Justice for the administration of the Court in the Trial Division and for
“ensuring the orderly and expeditious exercise of the jurisdiction and
powers of the Court in the Trial Division”.
It was generally understood that the applicant had decided to take over the
powers and duties performed by the SJA. This was one of the matters
specifically referred to by the retiring Supreme Court Judge in his speech
to which reference has been made. The applicant later reversed this
decision at the request of other Trial Division Judges. Queensland
Newspapers sought access under the RTI Act to information about this
issue.
The process followed by the Information Commissioner
Because five external review applications were received by the IC in June
and July 2015, and because DJAG’s reasons for refusing access were
generally the same, and because many of the documents in issue were
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duplicated across the reviews and gave rise to the same issues, the IC dealt
with the reviews together to the extent that it was procedurally convenient
to do so.
The IC wrote to a large number of current and former Judges of the
Supreme Court to consult with them about disclosure of information that
concerned them. Apart from the applicant and two former judges, the
consulted judges did not object to disclosure of the requested information.
Following completion of the consultation process, the IC wrote to the
applicant and DJAG to communicate her preliminary view that most of the
documents sought by Queensland Newspapers and other media
organisations should be produced to them. This occurred in October 2015.
In response, submissions from the applicant were received on 18
December 2015. The IC refused requests by the applicant that various
threshold legal questions be decided before a report was provided. She
also rejected his application that an oral hearing be held. The IC was
satisfied that proceeding with the external review on the basis of written
submissions would not cause any unfairness to the applicant or any other
party.
In the course of that process, the IC requested a submission from DJAG as
to the relationship between it and the Supreme Court for the purposes of
s 12 of the RTI Act. DJAG responded that it was of the view that for the
purposes of s 12 of the RTI Act, the Supreme Court formed part of DJAG
and that documents generated by the courts were documents of DJAG.
No further submissions were made by DJAG but additional submissions
were provided on behalf of the applicant on 13 April 2016. In those
submissions, the solicitors acting on behalf of the applicant submitted:
That the applicant agreed with DJAG’s submissions to the extent that
they did not conflict with his position; and that he wished to raise new
grounds in support of the nondisclosure of the audio recording and
related notes of the 12 February 2015 meeting submitting that
schedule 3, s 10(1)(a) of the RTI Act (prejudice to an investigation of
a contravention or possible contravention of the law); and items 8
and 9 of schedule 4, part 3 of the RTI Act (impede the administration
of justice, both generally and for a person) applied to this information.
In reaching her decision, the IC identified the “decision under review” as
DJAG’s internal review decisions of 5 June 2015.
By letter dated 26 May 2016 the IC advised the applicant’s solicitors that:
“45 … I remained of the preliminary view that the bulk of the audio
recording and related notes should be released under the RTI Act.”
The documents which remained in issue were identified in Appendix 2 to
the IC’s External Review (documents in issue). The IC summarised the
content of the documents in issue as follows:
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“52 The information in issue includes all or parts of notes and
resolutions of meetings of the judges; email, memoranda and
correspondence exchanges between the judges; statements and file notes
of discussions between the judges; and the audio recording of the 12
February 2015 meeting which took place between the third party and
Justices Byrne and Boddice.…
53 As noted, with the exception of two judges who objected to the
disclosure of two documents (which are no longer in issue), none of the
judges with whom OIC consulted (except [the applicant]) objected to
disclosure of the information that concerned them. When consulted about
the audio recording, Justice Byrne confirmed that he taped the meeting on
his (DJAG-issued) mobile phone, without the knowledge of the other parties
to the meeting. Following the meeting, Justice Boddice made a note of the
discussion that took place. Justice Byrne prepared a statement on 18
February 2015 that discussed the meeting, as well as a number of other
events. Parts of both of those documents are in issue.”
Based on the submissions which she had received, the IC identified the
issues requiring determination in the external review as follows:
Whether the documents containing the information in issue are
documents in the possession or under the control of DJAG under
s 12 of the RTI Act;
Whether s 17 and schedule 2, part 2, item 1 operate to exclude the
information in issue from the RTI Act;
Whether the information in issue comprises exempt information
under either schedule 3, s 8 (confidential information) or schedule 3,
s 10(a) (prejudice the investigation of a contravention or possible
contravention of the law) of the RTI Act; and
Whether disclosure of the information in issue would, on balance, be
contrary to the public interest.
“Are the documents containing the information in issue documents of
DJAG under s 12 of the RTI Act?”
The IC answered that question in the affirmative.
The relevant sections of the RTI Act and the IC’s reasoning for that
conclusion in the external review were as follows:
“58 Section 17(b) in conjunction with schedule 2, part 2, item 1 of the
RTI Act provides that a court, or the holder of a judicial office or other office
connected with a court, is not subject to the RTI Act in relation to the court's
judicial functions. When exercising the court's judicial functions, these
entities are excluded from the definition of 'agency' in section 14 of the RTI
Act.
59 The right that is conferred under the RTI Act is described in
section 23(1) (relevantly) as a right to be given access under the RTI Act to
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‘documents of an agency’. Under section 24, a person who wishes to be
given access to a document of an agency may apply to the agency for
access to the document. DJAG is an agency subject to the RTI Act.
60 The term 'document of an agency’ is defined in section 12 to mean
(relevantly):
A document ... in the possession, or under the control of the
agency whether brought into existence or received in the agency,
and includes:
(a) a document to which the agency is entitled to access; and
(b) a document in the possession, or under the control, of an
officer of the agency in the officer's official capacity.
61 Electronic documents and audio recordings are ‘documents’
under section 36 of the Acts Interpretation Act 1954 (Qld) and are documents
of an agency for the purposes of section 12 of the RTI Act.
62 The Information Commissioner has considered the meaning of
‘possession’ as used in section 12 in previous decisions. The term requires
nothing more than the relevant documents be in the physical possession of
an agency. Formal legal possession is not required; nor is it necessary to
consider the means by which the document came into the agency's
possession.
63 Included in the concept of documents which are under the control
of an agency are documents to which an agency is entitled to access. This
concept is apt to cover a document in respect of which an agency has legal
ownership, and hence a right to obtain possession, even though the
document is not in the physical possession of the agency. The words ‘under
the control’ convey the concept of a present legal entitlement to control the
use or physical possession of a document (as exists, for example, in the
case of documents held on behalf of a principal by the principal's agent, or
documents held by a bailee on behalf of the owner of the documents.) For a
document to be one which is under the control of the agency, an agency
must have a present legal entitlement to take physical possession of the
document (at least for so long as necessary to discharge all of the agency's
obligations under the RTI Act in respect of the document).
64 Section 27 of the RTI Act provides that an access application is
taken only to apply to documents that are, or may be, in existence on the
day that an application is received. A document will only be regarded as
being in the possession or under the control of an agency if the agency had
possession or control of the document at the time the application was
received by the agency. A ‘post-application document’ is a document that
did not exist, or was not in the possession or under the control of the agency
under section 12, on the day the agency received a valid access application
and has been created or received by the agency after that date.
65 Section 45 of the RTI Act provides that the agency to which the
access application is made must make a decision (before the end of the
prescribed period for processing) about whether access is to be given to the
requested documents of the agency.”
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As part of her analysis, the IC set out the process by which documents of
the Supreme Court were received by DJAG. The accuracy of this
description was not challenged in the proceedings.
Processing of the application by DJAG
“66 The access application was made to DJAG. Upon its receipt,
DJAG's RTI Unit issued its standard internal ‘Document Search Request’
forms to those of its ‘business units’ that could reasonably be expected to
hold responsive documents. Search requests were sent to ‘Supreme and
District Courts’ (that is, via email to staff of the Executive Director of the
Courts); and to the [applicant] as Chief Justice, who was asked to forward
the request to relevant judges.
67 Documents responding to the terms of the application were
located by various judges (or their associates or administrative assistants),
including the [applicant], and provided to the RTI Unit for processing. DJAG
reviewed the documents; undertook third party consultations; and then made
its decision regarding whether or not the documents should be released
under the RTI Act. It decided to give access to some documents, and to
refuse access to others either in whole or in part. The initial and internal
review decisions were made by DJAG's decision-makers, on behalf of
DJAG. There is nothing in any of DJAG's processing of the application or in
its decisions to suggest that Ms Edwards or Ms Newick were exercising
delegated authority to process and decide the application on behalf of the
Supreme Court as a separate or external entity. No evidence of a delegation
has been provided to OIC.”
The reasoning of the IC to her conclusion was as follows:
“Analysis
68 As noted, when exercising the court's judicial functions, the courts
and judicial office holders or other office connected with a court are not
subject to the RTI Act. Pursuant to schedule 2, part 2, item 1 of the RTI Act,
a person will not be successful in applying to the courts or a judicial office
holder etc. under the RTI Act for access to documents relating to the
exercise of the court's judicial functions. It is only in that context that [the
applicant] is correct in referring to the Supreme Court as ‘an excluded entity’.
In this case, the application was made to DJAG and not the Supreme Court.
69 As administrative bodies, and under administrative arrangements
and structures established by government, the courts sit within the portfolio
of the Attorney-General and Minister for Justice and form part of DJAG's
Justice Services division. DJAG administers the courts by providing
administrative services and support to the courts and their judicial officers,
including for example, courthouse facilities, registry operations,
administrative and judicial support staff, and information technology (IT)
equipment and services. In the delivery of justice services, Queensland
courts and tribunals are a service area of DJAG. They are referred to as
‘business units’ of DJAG.
70 As such, under arrangements established by government, a
person wishing to access administrative documents of the courts is directed
to make the application to DJAG. ‘Making an RTI or IP application’ on
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DJAG's website advises that applications for access to ‘Queensland Courts
administrative files (not court files)’ are to be made to DJAG. It provides
information for applicants about how to identify the administrative documents
of the courts that they wish to access. The RTI tab on the Queensland
Courts website (which is administered by DJAG) takes the user to the RTI
page located on DJAG's website.
71 The manner in which DJAG processed the application (explained
at paragraphs 60 and 61 above) indicates that DJAG's RTI unit,
administrative officers of the Supreme Court, and the individual judges who
conducted searches for, and provided responsive documents to, DJAG's RTI
unit, regarded the documents as in the possession or under the control of
DJAG. As far as I am aware, none of the judges, including the [applicant],
raised any issue, objection or qualification regarding the provision of
documents to the RTI unit for the purpose of responding to the access
application. None contended that DJAG was not entitled to be provided with
copies of responsive documents because they were documents of the Court
and not DJAG.
72 When invited to respond to the [applicant’s] submissions on this
point, DJAG briefly confirmed that it considered the Supreme Court to be
part of DJAG for the purposes of section 12 of the RTI Act and that
documents generated by the Court and its judicial officers were to be
regarded as documents in the possession and/or under the control of DJAG.
73 Moreover, I note that the Supreme Court does not maintain its
own IT system. It uses DJAG's IT system and equipment. Electronic
documents generated by the Supreme Court are stored on DJAG's servers.
DJAG is entitled to access and retrieve electronic documents stored on its
server. DJAG has provided no evidence to suggest that documents of the
Courts are somehow quarantined on its server or access restricted in some
way. As such, those documents are in DJAG's physical possession and
under its control within the meaning of section 12 of the RTI Act because
DJAG has a present legal entitlement to possession of documents located
on its server. (Of course, while DJAG is obliged to identify and deal with
such documents when processing an access application, it does not follow
that it is required to give access to them. There may be grounds for
exemption that apply to the documents or public interest factors favouring
their nondisclosure.) I find the [the applicant's] submissions concerning the
distinction to be drawn between the physical possession of a server and the
physical possession of documents located on the server to be misconceived.
In the absence of any restriction, DJAG is entitled to access and retrieve
documents stored on its server.
74 For the reasons explained, I reject the [applicant’s] submission
that the documents in issue were not in the possession or under the control
of DJAG at the time the access application was received by DJAG because
they were in the possession of a separate entity (the Supreme Court), and
were not transferred to DJAG's RTI unit until after receipt of the application.
Under administrative arrangements established by government, the
Supreme Court is a division of DJAG and documents generated by the Court
are documents of DJAG under section 12 because they are in the
possession or under the control of DJAG. In recognition of this relationship,
applicants wishing to access documents generated by the Court are directed
by DJAG to make their application to DJAG.
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16
Conclusion
75 I am satisfied that the documents in issue are documents of DJAG
under section 12 of the RTI Act because they were in the physical
possession and/or under the control of DJAG at the time the access
application was received by DJAG.”
As part of that same analysis the IC considered the following question:
Is the information in issue excluded from the RTI Act because of the
operation of s 17 and schedule 2, part 2, item 1?
The IC answered that question in the negative. She set out her reasoning
to that conclusion as follows:
“83 The effect of section 14(2) and section 17 of the RTI Act is to
exempt from the definition of 'agency', entities listed in schedule 2, part 1
absolutely, and entities listed in schedule 2, part 2 when they are exercising
a particular function. A person may not make an access application under
section 24 of the RTI Act to these entities either at all (in the case of part 1
entities), or when the requested documents relate to the exercise by the
entity of the particular function (in the case of part 2 entities).
84 In the case of schedule 2, part 2, item 1, a court, or the holder of
a judicial office or other office connected with a court, do not fall within the
definition of 'agency' in relation to the court's judicial functions.
85 It is important to note that entities are excluded under schedule 2,
part 2, and not documents. Schedule 2, part 2 has no application to entities
that are not listed. In this case, the access application was made to DJAG.
DJAG is not listed in schedule 2, part 2 as an entity to which the RTI Act
does not apply in respect of a particular function. It is therefore an agency
under section 14(1), and a person is entitled to make an application to DJAG
under section 24 to access documents of DJAG under section 12: that is,
documents that are in DJAG's physical possession or to which DJAG is
entitled to access at the time of receipt of the access application. I have
explained above why I consider the documents in issue to be such
documents.
86 I reject the submission made by DJAG to the effect that it does
not matter in whose hands the relevant documents are held: if they relate to
a court's judicial functions, then they are excluded from the RTI Act under
schedule 2, part 2, item 1. I do not consider that a plain reading of the
relevant provisions I have set out above leads to that result. Schedule 2,
part 2 is an entity-based exclusion that operates to affect the definition of
'agency' in section 14 and to exclude entities from complying with obligations
under the RTI Act in certain circumstances. It is not a document-based
exclusion. If Parliament had intended to exclude judicial documents from
the operation of the RTI Act absolutely, no matter in whose hands they are
held, it is reasonable to expect that Parliament would have included them in
schedule 1 of the RTI Act. It did not do so. The comments of the Information
Commissioner in Cannon and Magistrates Court [2004] 6 QAR 340
(Cannon) in that regard are relevant:
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17
In my view, it cannot have been Parliament's intention to exclude
from the application of the FOl Act, as a class, any documents
relating to the judicial functions of a court That would produce
absurd consequences. It would exclude citizens from seeking
access, under the FOl Act, to any documents held by government
agencies that related to current or concluded legal proceedings:
not only legal proceedings to which a government entity was a
party, but also, for example, documents relating to evidence given
by employees of government agencies (in that capacity) as
witnesses or expert witnesses in cases not involving a
government entity as a party.
87 In summary, based upon a reading of the relevant provisions
contained in the RTI Act, I am satisfied that schedule 2, part 2, item 1 applies
only when the relevant access application is made to an entity listed in item
1 and only when the application seeks access to documents that relate to
the exercise of the court's judicial functions. If documents relating to the
judicial functions of a court (or holder of a judicial office etc.) are in the
possession or under the control of an agency that is subject to the RTI Act
under section 14, there is nothing in the RTI Act to prevent a person applying
to that agency for access to the documents. That agency is subject to the
RTI Act and the documents are documents of the agency under section 12.
A person is therefore entitled to apply to access them under section 24.
88 Of course, the mere fact that such documents in the hands of
another agency are the subject of an access application does not mean that
access to them may not be refused. In deciding whether or not to grant
access, an agency's decision-maker would be obliged to consult with
concerned third parties regarding disclosure, including with the relevant
court or judicial officer. The decision-maker would also be required to
consider whether the documents comprise exempt information under section
48, or whether disclosure would, on balance, be contrary to the public
interest under section 49.
89 In its submissions, DJAG relied upon a number of cases that had
been decided by the Information Commissioner under section 11(1)(e) and
section 11(2) of the repealed FOl Act where the Information Commissioner
examined the type of function being performed in deciding whether or not
the documents in question were subject to the RTI Act. However, as I noted
in my response to DJAG, the scheme and structure of the RTI Act and the
repealed FOl Act are quite different. As the Information Commissioner noted
in Cannon (at [22]), the exclusion under section 11 of the repealed FOl Act
was drafted in such a way as to cover any documents received or brought
into existence by a court, or the holder of a judicial office in performing the
judicial functions of a court, or holder of a judicial office, etc.
Conclusion
90 I am satisfied that section 17 and schedule 2, part 2, item 1 of the
RTI Act do not operate to exclude the information in issue from the operation
of the RTI Act because the access application was not made to an entity
listed in item 1.”
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18
Relevantly at a later point in her review, the IC said:
“213 …As explained, under the administration arrangements
established by government, the court when exercising its administrative
functions is properly to be regarded as part of the DJAG for RTI purposes.
Its administrative documents are DJAG’s administrative documents. Neither
the court nor its judicial officers is in a position to refuse to “supply” such
documents in the future, nor is it a question of them choosing or refusing to
assist or co-operate with, DJAG or any other agency in the future. As a
business unit of DJAG the court and its officers are obliged under the RTI
Act to search for and provide to the RTI unit for processing all responsive
administrative documents.”
Consideration
The subject matter of the access application concerns the exercise, or
potential exercise, of the applicant’s functions and powers as Chief Justice
under the SCQ Act and the Electoral Act. In particular, s 15 of the SCQ Act
provides that the Chief Justice is, amongst other things, responsible for the
administration of the Supreme Court and has the power to do “all things
necessary or convenient” to perform that function. Fulfilling that
responsibility would necessarily include sending communications to and
receiving communications from other justices concerning various aspects
of the functions of the Supreme Court.
Section 137(3) of the Electoral Act provides that the Chief Justice may
constitute the CDR, or appoint another Supreme Court judge to constitute
the CDR.
I have concluded that the approach of the IC involves a fundamental
misunderstanding of what is the Supreme Court. The framework
established by both the Constitution of Queensland 2001 (Qld) and the
SCQ Act demonstrate that the Supreme Court, while receiving
administrative support from DJAG, is an independent entity. It is not subject
to the control of DJAG nor, except in one particular aspect, is it a part of
DJAG.
Relevant parts of the Constitution of Queensland 2001 are ss 57, 58, 59,
60 and 61. These sections make it clear that the Supreme Court is a
separate entity from the executive. Relevant sections of SCQ Act are:
“4 Composition of the court
The court consists of a Chief Justice, a President of the Court of Appeal,
other judges of appeal, a Senior Judge Administrator, and the other judges
appointed by the Governor in Council.
…
15 Administrative responsibility of Chief Justice
(1) Without limiting the responsibilities, functions or powers of the Chief
Justice, the Chief Justice, subject to this Act, is responsible for the
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19
administration of the Supreme Court and its divisions and the orderly
and expeditious exercise of the court’s jurisdiction and power.
(2) Subject to this Act, the Chief Justice has power to do all things
necessary or convenient to be done to perform responsibilities under
subsection (1).
…
18 Supreme Court precincts
(1) Subject to this Act, the Chief Justice has power to do all things
necessary or convenient to be done for the control and management
of the Supreme Court precincts, including power to obtain, grant,
prohibit or limit access to and from the precincts or part of the
precincts.
(2) For subsection (1), a reference to the Supreme Court precincts
includes a reference to court precincts part of which are occupied by
the Supreme Court.
…
27 Protection for administrative acts
A judge has, in the performance or exercise of an administrative function or
power conferred on the judge under an Act, the same protection and
immunity as a judge has in a judicial proceeding in the court.
…
51 Arrangement of business of Trial Division
(1) Subject to section 15, the Senior Judge Administrator is responsible
to the Chief Justice for the administration of the court in the Trial
Division and for ensuring the orderly and expeditious exercise of the
jurisdiction and powers of the court in the Trial Division.
(2) Subject to this Act and other Acts, the Senior Judge Administrator has
power to do all things necessary or convenient to be done for the
administration of the court in the Trial Division and for ensuring the
orderly and expeditious exercise of the jurisdiction and powers of the
court in the Trial Division.
…
91 Finance
The court is part of the department for the purposes of the Financial
Accountability Act 2009.”
It is clear that by the SCQ Act it is the Chief Justice and not DJAG who
exercises management and control of the Court (and access to its
documents). The fact that s 91 of the SCQ Act provides that the Court is
“part of the Department” for financial purposes reinforces the conclusion
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20
that the Court is a stand-alone entity, separate from the executive in the
discharge of its functions. It follows that there is no justification in either the
SCQ Act nor in the RTI Act for the Supreme Court to be treated as part of
DJAG for the purposes of s 12 of the RTI Act. If it were to be so treated,
one would expect a provision similar to s 91 to make that clear.
The construction of the RTI Act is not to be undertaken in a vacuum. To
the extent that the interpretation of the RTI Act concerns (as these appeals
do) the Supreme Court, the nature and statutory foundation of that Court
needs to be recognised and acknowledged. As indicated by the sections
set out above, the SCQ Act provides for the existence and structure of the
Supreme Court. It confers broad powers and responsibilities on the Chief
Justice. It contemplates that all Judges have the like protection and
immunities when performing administrative functions as if performed in a
judicial proceeding in the Court. The protection and immunities referred to
are those recognised by the Common Law and are expansive.1
As a general proposition, the executive (and an independent statutory
appointee such as the IC) could not (in the face of those protections) compel
the production of documents and recorded communications created by, and
passing between, members of the judiciary. This reflects the well
established status of the judiciary as wholly independent of the executive
and immune from interference by it. Judicial office stands “uncontrolled and
independent and bowing to no power but the supremacy of the law”.2 As
stated by Viscount Simons in Attorney General v The Queen:3
“…in a federal system the absolute independence of the judiciary is the
bulwark of the constitution against encroachment whether by the legislature
or by the executive.”
This independence is constitutionally enshrined. The State of Queensland
is obliged by the Constitution of Australia to maintain a Supreme Court
capable of being vested with federal judicial power exercised by judges
which are (and are seen to be) independent from the legislature and the
executive4. Independence from the executive of a Supreme Court is one of
the key assumptions upon which Chapter III of the Constitution of Australia
is based.
It follows that the RTI Act should not be construed so as to permit
interference with the independence of the Court. If it were accepted, as the
IC’s decision asserts, that all documents of the Court are documents of
DJAG, then a statutory right exists subject, in particular cases to the
1 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia &
Anor [2013] HCA 5; 251 CLR 533 at [27], [100], [105].
2 South Australia v Totani [2010] HCA 39; 242 CLR 1 at [1] per French CJ citing Sir Francis
Forbes.
3 [1957] HCA 12; 95 CLR 529 at 540.
4 Kable v The Director of Public Prosecutions for the State of NSW [1996] HCA 24; 189
CLR 51 at [107] per Gaudron J, [116] per McHugh J, [139] per Gummow J; Forge v
Australian Securities and Investment Commission [2006] HCA 44; 228 CLR 45 at [63]
per Gummow, Hayne and Crennan JJ.
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21
judgment of the IC, for anyone to require access to all such documents at
any time. That includes the executive, individual ministers (often litigants
in the courts), their advisers, adversaries and others. A judiciary subject to
such scrutiny (qualified only by the exercise of a discretionary judgment by
the IC) is not independent. Its institutional integrity is fundamentally flawed.
Such a consequence cannot have been intended by the legislature and is
indicative of error on the part of the IC in her interpretation of the RTI Act.
In the course of oral submissions, the Court was referred to the decision of
Nixon v Sirica,5 a judgment of the United States Court of Appeals, District
of Columbia Circuit, sitting en banc. In a context of discussing “judicial
privilege”, MacKinnon J provided an example of a request by a senator
directed to the Chief Judge of the Court of Appeals for the identities of
certain judges who had disqualified themselves from hearing a case
concerning a $3 billion pipeline along with the reasons for their recusal. The
Chief Judge replied to the effect that the identity of the judges involved in
the decision would be revealed when the judgment was issued, but that it
would not be appropriate for him to respond further to the inquiry. The
applicant submitted (and I agree) that this response reflected a proper
understanding of the doctrine of separation of powers, which is common to
Australia and the USA. The RTI Act should not be construed so as to
compel a different conclusion.
The Supreme Court as an “Agency”
The principal conclusion upon which the IC allowed access is that DJAG is
an “agency” for the purposes of the RTI Act and that the documents in issue
were documents “of” that agency. As a result of that interpretation, the IC
found that the exemption provided by s 17 and schedule 2, part 2, item 1 of
the RTI Act was not relevant.
I accept the applicant’s submission that in doing so the IC misconstrued the
RTI Act in a way which meant that when an access application was made
to DJAG, any and all documents in the possession of DJAG were amenable
to an access order whatever their character, i.e. whether they related to a
judicial function or not.
The right of access is conferred by s 23(1)(a) of the RTI Act in terms of
“documents of an agency”. Section 14(1) defines “agency” to mean a series
of entities, which entities do not specifically include the Supreme Court.
Section 14(2) makes clear that the concept of “agency” “does not include
an entity to which this Act does not apply”. That phrase is defined in s 17(a)
to mean entities identified in schedule 2, part 1. By way of example, the
concept of an “agency” does not include the governor or a member of the
Assembly. However, s 17(b) also defines the expression “an entity to which
this act does not apply” by referring to entities mentioned in schedule 2, part
5 487 F.2d 700, 740 (D.C. Cir. (1973).
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22
2 in relation to particular functions. Schedule 2, part 2, item 1 identifies
such an entity as:
“a court, or the holder of a judicial office or other office connected with a
court, in relation to the court’s judicial functions”
While s 14(1) defines “agency” in a way that does not expressly refer to the
Supreme Court, the explicit reference to “court” and “holder of a judicial
office”, in schedule 2, part 2, item 1, shows that the drafter of the RTI Act
contemplated that Supreme Court documents would nevertheless be
captured and made express provision so as to exclude some of them. This
can only be because the RTI Act presupposes that the Supreme Court falls
within the scope of the expression “department” in s 14(1).
The IC identified the Supreme Court as a “business unit” within DJAG.
There are difficulties with that nomenclature in that it obscures the
independent standing of the Supreme Court and the fact that it is not part
of, nor subject to, the control of DJAG.
The IC found that the Supreme Court did not maintain its own IT system,
but utilised that of DJAG. There is no issue that many of the documents in
dispute came from the records of that IT system as it existed within DJAG.
Nevertheless, it is clear that when performing some functions, the Supreme
Court is an entity to which the RTI Act does not apply. The sensible way to
read these provisions of the RTI Act together is that:
a) DJAG is an “agency” within the meaning of s 14(1) of the RTI Act;
b) The Supreme Court performing judicial functions, even though those
judicial functions might be supported administratively by DJAG,
including IT and analogous support, is expressly not an “agency”; and
c) When s 23 of the RTI Act refers to “documents of an agency”, that
section is referring to documents of DJAG, other than the documents
of DJAG in relation to the Supreme Court performing judicial functions.
The approach taken by the IC was to conclude that DJAG is for all purposes
and in an unqualified way an “agency” by force of s 14(1) of the RTI Act and
that s 17(b) and schedule 2, part 2, item 1 were not relevant. That
interpretation cannot be correct. It misconstrues s 14(1) of the Act and as
a result, gives rise to an error of law.
This is so for the following reasons:
a) It construes s 14(1) of the RTI Act without having regard to the very
next subsection which expressly carves out “an entity” to which the Act
does not apply. Where that entity is the Supreme Court performing
judicial functions, regardless of the administrative and technical
support which it is receiving from DJAG, the scope of the word
“agency” must be read down so as not to include the court.
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23
b) In circumstances where the documents of the Supreme Court are
housed by DJAG (as the IC found and the drafter of the RTI Act can
be presumed to have known) the approach of the IC is likely, if not
certain, to defeat the protection evidently intended to be provided by
s 17 and schedule 2, part 2, item 1.
c) On the IC’s approach (regardless of whether or not the documents in
dispute relate to the performance of a judicial function), if the judges
use the IT system provided by DJAG at all for their preparation or
communication, those documents will become documents of an
“agency”, i.e. DJAG, and an applicant who applies to DJAG will have
a right to access them subject only to the discretionary power under
the RTI Act to exclude production on the grounds that the production
is contrary to the public interest.
d) Not only does that approach defeat the objective evident in s 17 of the
RTI Act, it is difficult to discern any rational legislative intention to be
served by that construction. The IC does not identify any reason why
the legislature would have intended to render the right of access
provided by s 23 so radically different depending on whether an access
application is made (and for the same documents) to DJAG on the one
hand or to the Registrar of the Supreme Court or one of its justices, on
the other.
e) The construction favoured by the IC is the one most at odds with the
preservation of judicial independence mentioned at the outset of this
consideration.
It may be inferred that Parliament’s intention in legislating s 17 and Item 1
of schedule 2, part 2 was to ensure that the independence of the judiciary
was not compromised. Parliament is presumed not to have legislated
beyond its constitutional bounds and the RTI Act should accordingly be
interpreted consistently with it being intra vires.6 Section 9 of the Acts
Interpretation Act 1954 (Qld) similarly provides that an Act is to be
interpreted as operating to the full extent of, but not to exceed, Parliament’s
legislative power.
The above approach is supported by the observations of Applegarth J in
Davis v City North Infrastructure Pty Ltd7 where his Honour said:
“The Parliament did not intend that the right of access to information should
extend to a document held by an entity that falls outside of the Act’s definition
of “agency”. If the Parliament had intended the Act to give a right of access
to information to the fullest possible extent, then it would not have conferred
that right by reference to certain defined agencies.”
6 Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; 71 CLR 207 at
267 per Dixon J.
7 [2012] 2 Qd R 103 at [25].
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24
Even if the Supreme Court were to be characterised as part of DJAG and
operating as its business unit, the same result would be achieved. This is
because the RTI Act treats DJAG as an “agency” other than for its excluded
business unit (the Supreme Court) when performing the functions identified
in schedule 2, part 2 (generally and in particular Item 1). So long as the
documents in dispute relate to the court’s judicial functions, they are not
documents “of an agency” for the purposes of s 23 of the RTI Act and there
is accordingly no right in Queensland Newspapers nor in the other access
applicants to their release.
This is the correct construction of the RTI Act. On this construction, the IC
was wrong to have concluded that s 17 did not operate to exclude the
documents in dispute from the RTI Act’s operation and the IC should have
affirmed the decision not to release those documents.
Documents were not in the possession or under the control of DJAG.
Another principal basis underlying the IC’s reasoning is that the documents
in dispute were in the “possession” of DJAG. This conclusion is also
erroneous.
The definition of “document of an agency” in s 12 of the RTI Act is
specifically delimited (as is s 23) by the concept of an “agency”. For the
reasons set out above, the word “agency” cannot be read so as to include
the entity, which is the Supreme Court, (as a department) in relation to the
discharge of the court’s judicial functions. This is so, even if contrary to my
interpretation, the Supreme Court were part of DJAG for RTI Act purposes.
In either case, the documents in dispute fall within the concept of and are
correctly characterised as, “relating to the court’s judicial functions” for the
purposes of s 14(2) and accordingly, cannot be “documents of an agency”
in s 12 for the same reason.
In the alternative, the documents in dispute were not documents in the
“possession” or “under the control” of DJAG, as distinct from judges of the
Supreme Court itself, at the time access applications were made.
This is so for the following reasons:
a) “possession” is not defined in the RTI Act or the Acts Interpretation Act
1954 (Qld). Its meaning depends upon the context in which it is used.8
Previous Information Commissioners have found that the word
“possession”, in the context of freedom of information legislation,
requires that the relevant documents be in the physical possession of
an agency.9 The concept of possession is extended by the words “or
under the control … of”, words which have been considered by
previous Information Commissioners to “convey the concept of a
8 Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd
[1979] HCA 67; 143 CLR 499 at [504].
9 Holt v Education Queensland and Anor [1998] 4 QAR 310 at [21] – [22].
-- 24 of 58 --
25
present legal entitlement to control the use or physical possession of
a document”.10
b) “possession” must, however, be read in context and subject to the
limitation that whatever possessory interest DJAG has, allows DJAG
to legally provide an access applicant with those documents (see
ss 23, 47(3)(e) and 68(1) RTI Act). Unlike the analogous context of
disclosure (where disclosure is required even of documents not
capable of being produced), the RTI Act confers a right to access
documents where DJAG is able to provide a copy (or produce one).
The expression “possession”, where used to describe the documents
of an agency, must be construed in a way consistent with that, so as
not to capture documents where DJAG is not able to in fact produce
them (or where to do so would interfere with judicial independence).
The High Court has held in the context of subpoenas, that the concept
of “possession” assumes that a person to whom it is directed “has the
ability or capacity to produce them”.11
c) Ms Edwards’ statutory declaration shows that the documents in
dispute were only provided to DJAG after the access application had
been made. Accordingly:
i) In relation to the hardcopy documents (and the audio recording
on Justice Byrne’s phone) DJAG lacked physical possession of
those documents at the time the access applications were made
and had no entitlement to compel production of those documents
had they not been voluntarily handed over.
ii) In relation to the electronic documents, although DJAG had
possession of the servers upon which those documents were
stored, it had no present legal entitlement to access the
documents (or files) stored upon them. Although a server might,
in an appropriate context, itself be a “document”, it would be a
surprising construction of the RTI Act that would entitle access
applicants to obtain access to DJAG’s servers. DJAG cannot
provide access to the electronic data on it so as to produce a
hard copy document without the intervention of relevant
passwords or like permission (evidenced by having to ask for the
documents in this case). In no sense then does DJAG have
possession of the documents which might be able to be
produced from the servers by a combination of the electronic
data and that password or access entitlement.
For those reasons, I have concluded that the IC ought to have found that
the documents in dispute were not in the “possession” of DJAG.
10 Price v The Nominal Defendant [1999] 5 QAR 80 at [18].
11 Rochfort v Trade Practices Commission [1982] HCA 66; 153 CLR 134 at 143 per Mason
J, with whom Wilson J agreed, at [151].
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26
Moreover, the various grounds upon which the IC found that DJAG had a
“present legal entitlement” to access the documents in dispute were wrong.
This is because:
a) The IC relied upon the existence and use of standard internal
“document search request” forms, issued by DJAG to the Supreme
and District Courts, requesting the assistance of members of the
judiciary to search for all documents relevant to the access
applications and to forward those documents to DJAG. This form is
no more than a request for the production of documents and does not
evidence an entitlement in DJAG to access those documents.
b) The IC relied upon various administrative arrangements. These
arrangements included the fact that the courts sit within the portfolio of
the Attorney General and Minister for Justice and her conclusion that
the courts formed part of DJAG’s Justice Services division. The IC
also referred to DJAG’s Annual Report, which listed the Supreme,
District and Land Courts under DJAG’s Justice Services division.
These administrative arrangements say nothing about a present legal
entitlement to use or physically possess the documents in dispute,
which were otherwise within the possession of members of the
judiciary.
c) The IC relied upon Administrative Arrangements Order (No 3) 2015
(Administrative Order). Administrative Arrangement Orders are made
under s 44 of the Constitution of Queensland 2001 and detail the
principal responsibilities of Ministers and the Acts they are to
administer. The Constitution is, however, silent as to departmental
control or oversight over the Supreme Court. The Administrative Order
also does not provide any power to exercise control over documents
in the possession of the Court and members of the judiciary and is
insufficient to establish the legal entitlement necessary for s 12 of the
Act.
d) The IC relied upon the fact that DJAG’s website directed access
applicants wishing to access administrative documents of the courts to
make any application to DJAG. That is no basis for concluding that
the documents (or all documents) of the Supreme Court are in the
possession of or under the control of DJAG.
e) The IC’s finding that DJAG “is entitled to access and retrieve electronic
documents stored on its server” was not supported by evidence and
even if it were, it would not demonstrate a “legal” entitlement to access
those documents. Rather, and for the reasons set out above, such an
entitlement would fundamentally undermine the structure of a Chapter
III Court in Queensland.
As earlier indicated, the framework established by both the Constitution of
Queensland 2001 and the SCQ Act make it clear that the Supreme Court,
whilst receiving administrative and technical assistance from DJAG, is an
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27
independent entity and is not subject to the control of DJAG (see [44] – [52]
hereof).
It follows that the applicant’s grounds of appeal a) and b) have been made
out.
Does the information in issue relate to the exercise of a Court’s judicial
functions?
At this point in her review, the IC noted that given the findings which she
had made, it was not necessary to consider whether any of the information
in issue related to the exercise of the Court’s judicial functions. For
completeness, and because of the detailed submissions received from the
applicant and DJAG, the IC considered this issue.
The IC answered that question in the negative.
The IC set out her reasoning as follows:
“Analysis
124 As can be seen from the case law discussed above, the courts
often refer to the adjudicative powers and functions of courts and judicial
officers in seeking to distinguish between matters of a judicial and non-
judicial (or administrative) nature. I am in agreement with that approach. At
the heart of the exercise of judicial powers and functions there must be an
adjudication or determination of some type – ‘an attempt to adjudicate, or to
give a final or conclusive decision about, a dispute between parties as to
existing rights or obligations by reference to established rules or principles’,
as described by the Information Commissioner in Cannon.
125 DJAG submits that a distinction is to be drawn between 'judicial
function’ and ‘judicial power’. I accept that ‘judicial function’ is a wider term.
However, an adjudication is still at the heart of both terms. I agree with the
approach taken by the Court in Kotsis. That is, the exercise of a judicial
power involves an adjudication of some type: the power to hear and decide
controversies between subjects that does not begin until some tribunal which
has power to give a binding decision is called upon to take action; or a
decision settling for the future the existence of rights and obligations; while
the exercise of a judicial function involves anything truly ancillary or
incidental to that exercise of adjudicative power.
126 In summary, I find that in order for a function of a court to be
considered judicial in nature under schedule 2, part 2, item 1, it must be
referable or incidental to, or have some ancillary relationship with, the
exercise of an adjudicative power by a court or judicial officer or other office
connected with a court.
127 Applying that interpretation to the information in issue, I do not
consider that any of the information relates to the exercise of the Supreme
Court's judicial functions. None is sufficiently referable or incidental to, or
connected with, the exercise of the Court's adjudicative powers – that is, with
a hearing or determination of proceedings before the Court. The information
in issue, as contained in the audio recording as well as in emails,
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28
memoranda, correspondence and meeting minutes, relates either to
discussions about the apprehended application to the CDR by the ECQ and
the manner in which the CDR would be constituted should an application be
received; or to the aftermath of the issue, when it became clear that no
application would in fact be made. No proceedings were commenced at any
time, nor was the court required to exercise any kind of adjudicative or
determinative power or function at any time. I do not consider that the
information in issue has a sufficient connection with the Court's judicial
functions in those circumstances.
128 As regards the powers and functions of the third party and the
SJA under sections 15-19, and section 51 of the SCQ Act, respectively, I am
satisfied they are administrative in nature. I reject DJAG's submissions that
the information in issue falls within the category of ‘judicial administration’
which therefore gives it the necessary judicial flavour. The comments made
by the Information Commissioner in Cannon with respect to the Chief
Magistrate's functions under Part 3 of the Magistrates Act are applicable in
the present case. The administrative responsibilities of the Chief Justice and
the SJA under the SCQ Act are designed simply to ensure the orderly and
expeditious administration of the Court's jurisdiction and powers. These
administrative responsibilities are conferred on the head of the Supreme
Court and a senior judge as SJA simply because those persons are officers
best placed and most familiar with the Court’s operations to deal with
organisational and operational matters concerning the Court. The conferral
of such responsibilities on judges, rather than on administrative officers, is
in recognition of the independence of the Court, not because they require a
judicial mind to be brought to bear. Such responsibilities ordinarily will have
no connection with an adjudicative power or function and will not require a
judicial determination to be made. The same can be said of the Chief
Justice's responsibilities under section 137 of the Electoral Act. Section 137
is merely a statutory power of appointment. If, for example, the power had
vested in the Governor-in-Council, then it could hardly be said that the
appointment was an exercise of a judicial function. Section 137 provides for
the Chief Justice to sit on the CDR or to appoint another judge to sit on the
CDR simply because it is an expedient and independent process for
appointment. It recognises the Chief Justice's position as the most senior
judge of the Supreme Court, and the officer responsible for the
administration of the Court. The power of appointment is not judicial in
nature. I reject DJAG's submission that a clearly statutory or administrative
power takes on a judicial flavour simply because a judge is required to
exercise it.
129 One last point to note in respect of this issue is that, when
requested by DJAG's RTI unit to provide copies of any documents in their
possession that responded to the terms of the access application, none of
the judges, including the third party, argued that the information related to
the exercise of the court's judicial functions. (The third party sought to adopt
DJAG's submissions on this point during the course of the review.) A
number argued strongly against the documents in question being
characterised as having any connection with the exercise by them of judicial
functions.
Conclusion
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29
130 Even if section 17 and schedule 2, part 2, item 1 of the RTI Act
were to operate in the circumstances of this review to exclude documents in
the possession or under the control of DJAG that relate to the exercise of
the Supreme Court’s judicial functions, I am satisfied that none of the
information in issue can properly be characterised as relating to the exercise
of the Supreme Court's judicial functions.”
Consideration
To fall outside the exemption provided by s 17 and schedule 2, part 2, item
1 of the RTI Act as the IC found, it is necessary for the documents in issue
to be shown not to be “in relation to” the Court’s “judicial functions”. I have
concluded that the IC made a number of errors in construing the scope of
these phrases. These errors were:
a) In drawing a distinction between administrative and judicial
functions, the IC misdirected her inquiry because the relevant
issue is whether something is “judicial” (whatever else it may be).
b) The functions relevant here are properly described as “judicial”.
c) In any event, the documents may (and do) relate to the Supreme
Court’s judicial functions whether or not the documents are
otherwise of an administrative or quasi-legislative character.
The IC’s starting point was that courts have often defined judicial functions
by distinguishing them from administrative functions and attempted to make
the same distinction when considering what constituted “judicial functions”.
That approach is wrong. The starting point is the meaning of the words
used in schedule 2, part 2, item 1, not a reference to and reliance on
analogy.
There is nothing in the RTI Act which refers to “administrative functions”.
Defining the exercise of certain powers as “administrative” does not exclude
those powers from also being “judicial functions”. Nor is it necessary for a
judicial “determination” to be made for a function to be considered “judicial”.
As the cases analysed below demonstrate, certain powers which might
appear “administrative” are actually intimately related to the court’s judicial
functions.
Something is a judicial function, whatever else it might be, if it is a task
conferred upon a judge as such. If a judge is doing things under powers
which are conferred upon him or her by virtue of the office which that person
holds as a judge, they are fairly described as judicial functions. Such an
approach is consistent with the words used in the RTI Act and is consistent
with s 27 of the SCQ Act. It is consistent with the evident purpose of this
exception in the schedule, which is directed to preserving judicial
independence. It is also consistent with authority.
The approach taken by the IC was to draw a distinction between judicial
functions and administrative functions from cases which were concerned
with different principles. The cases relied upon by the IC were concerned
-- 29 of 58 --
30
with the question of whether something involved the exercise of judicial
power, not whether what was involved was the exercise of a judicial
function. This was the wrong question to ask. The correct question is
directed to what the language of the statute means in context.
The approach of the IC reflects a fundamental misunderstanding of the
effect of the exception. The IC says that the exception is set out in the RTI
Act to ensure the independence of the judiciary, but then says that the
exception does not require a judicial mind to be brought to bear. This is
clearly wrong. The Parliament has in fact dictated that it be a judicial mind,
and only a judicial mind, which can be directed to the performance of the
particular function. This is particularly so in relation to s 137 of the Electoral
Act which nominates one particular judicial mind, i.e. the Chief Justice of
Queensland. The reason for Parliament enacting such a provision is
because of a recognition that judicial independence requires that the
administration of the courts be in the hands of some senior judicial officer,
usually the Chief Justice, because it is related to the judicial functions of the
Court as a whole.
The documents in dispute concern functions exercised by the applicant in
his capacity as Chief Justice. The sending of and receipt of
communications by the applicant from other members of the judiciary
regarding, inter alia, the management of the Court and the constitution of
the CDR, specifically relate to the discharge by the applicant of his powers
under the SCQ Act and Electoral Act. Those powers can only be exercised
by a judicial officer and therefore involve the exercise of a judicial function.
The allocation of Judge A to hear a dispute between parties B and C is, at
the very least, related to a judicial function and if there were the capacity
for some administrative officer to make those decisions, other than a judge,
particularly an administrative officer employed by DJAG, that would be
plainly contrary to the independence of the judiciary. One can ask
rhetorically “Why is it not a judicial function even if it is not an adjudicative
one, where Parliament has directed consistent with a long line of
jurisprudence in this country that a particular function can only be performed
by a particular judge and in relation to the Court’s activities".
The above interpretation of “judicial functions” is the interpretation most
harmonious with the operation of s 27 of the SCQ Act. By s 27 Parliament
has made it clear that if it is a function conferred upon a judge under an Act,
even if it is an administrative function, it is to be given the same privilege as
if the judge were doing it in court. That is inconsistent with the conclusion
reached by the IC.
In her analysis, the IC refers to s 27 as being merely a statutory power and
gave the example of such a power being invested in the governor in council.
This is to understate the nature and importance in our jurisprudence of the
independence of the persons who exercise a judicial function. The example
is also irrelevant because if such a power were conferred on the governor,
it would probably be unconstitutional in that it would have ministers and the
governor deciding who should preside in the adjudication of a court of
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31
disputed returns. It is for that reason that the power has been conferred on
the Chief Justice.
In Fingleton v The Queen12 the High Court considered whether a Chief
Magistrate could be held criminally responsible for exercising powers under
s 10 of the Magistrates Act 1991 (Qld) which powers substantially paralleled
those to be exercised by the applicant in his capacity as Chief Justice,
pursuant to the SCQ Act and the Electoral Act. Section 21A of the
Magistrates Act 1991 (Qld) conferred an immunity upon a magistrate in the
performance of an “administrative function”. Section 30 of the Criminal
Code (Qld) conferred an immunity from criminal responsibility for an act
done or omitted to be done in the exercise of the officer’s “judicial functions”.
Although the High Court ultimately concluded that it was not necessary to
decide which of the two sections provided immunity, the case contains
persuasive obiter comments regarding the meaning of “judicial functions”.
In particular, Gleeson CJ stated:
“51 It is clear that s 30 of the Code is in aid of the independent and
impartial administration of justice; the exercise of judicial functions without
fear or favour.
The purpose of s 21A, which extended the s 30 immunity beyond the
exercise by magistrates of judicial functions to the exercise of administrative
functions, is also related to the independence of the magistracy. Such
independence is important in relation to the exercise by magistrates of the
various responsibilities conferred on them by other Acts of the kind set out
above. What, the respondent asks, does it have to do with matters of internal
court administration and discipline of the kind dealt with by the Magistrates
Act itself?
52 The answer to that question, and to the respondent’s argument,
requires closer examination of s 10 of the Magistrates Act. In truth it covers
a number of matters closely related to issues of judicial independence.
Subsections (1) and (2) of s 10 cover the whole range of matters relevant to
the orderly and expeditious exercise of the jurisdiction and powers of the
Magistrates Courts, and include the organising of court lists, the allocation
of magistrates to particular localities, and the assigning of magistrates to
particular work. Arrangements of that kind are not merely matters of internal
administration. They affect litigants and the public. Within any court, the
assignment of a judicial officer to a particular case, or a particular kind of
business, or a particular locality, is a matter intimately related to the
independent and impartial administration of justice. This was the basis of
the decision of the New South Wales Court of Appeal in Rajski v Wood,
where it was held that the nomination or allocation of a judge to hear a
particular case was not justiciable. As was pointed out in Minister for
Immigration and Multicultural Affairs v Wang, where it is the function of a
head of jurisdiction to assign members of a court to hear particular cases,
the capacity to exercise that function, free from interference by, and scrutiny
of, the other branches of government is an essential aspect of judicial
independence. The same may be said of the capacity to exercise that
12 [2005] HCA 34; 227 CLR 166.
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32
function free from the threat of civil or criminal sanctions. The responsibilities
conferred upon a Chief Magistrate by s 10 would cover some mundane
issues of a kind that arise in the administration of any substantial
organisation. On the other hand, some of those responsibilities, and
especially those involving decisions which directly or indirectly determine
how the business of Magistrates Courts will be arranged and allocated,
concern matters which go to the essence of judicial independence. The
selection of supervising and co-ordinating Magistrates is a matter that falls
into that category. It is, therefore, incorrect to say that the functions and
powers conferred on the Chief Magistrate by s 10 are unrelated to the
rationale for the immunity in question. As to some of those functions the
rationale is directly relevant. As to some it may be of no relevance, or of
limited relevance. As to others, its relevance may depend upon the
circumstances. Furthermore, it is not the case that decisions of the kind
covered by s 10 affect only the conditions of service of individual
magistrates. Such decisions affect the assignment of judicial officers to
cases. If a Chief Magistrate could be called to account, in civil or criminal
proceedings, for decisions about how Magistrates Courts arrange their
business, or about the assignment of magistrates to cases, or classes of
case, the capacity for the erosion of independence is obvious.
53 In recent years, the Supreme Court of Canada, and the
Constitutional Court of South Africa, have found it necessary to examine the
theoretical foundations of judicial independence for the purpose of
considering whether arrangements in relation to particular courts satisfied
the minimum requirements of that concept. In that context reference was
made to “matters of administration bearing directly on the exercise of [the]
judicial function”. The adjudicative function of a court, considered as an
institution, was seen as comprehending matters such as the assignment of
judges, sittings of the court and court lists, as well as related matters of
allocation of court-rooms and direction of the administrative staff engaged in
carrying out that function. Judicial control over such matters was seen as an
essential or minimum requirement for institutional independence. The
distinction between adjudicative and administrative functions drawn in the
context of discussions of judicial independence is not clear cut.
Nevertheless, the powers conferred by s 10 of the Magistrates Act include
powers that fall squarely within the rationale of the immunity in question.”
In the same case, Kirby J said:
“137 Leaving aside the statutory provisions that govern the outcome of
this appeal, the close relationship between institutional arrangements for the
assignments of judicial officers and the discharge of the judicial function
ought to have set legal alarm bells ringing concerning any attempt to have a
court, specifically a criminal court, intrude into the internal exchanges
between the appellant, as Chief Magistrate in Queensland, and Magistrate
Gribbin, a Co-ordinating Magistrate. If the question of immunity was ever
contemplated by anyone, perhaps it was rejected because of the rules, now
overtaken by statute and the common law, that formerly drew artificial
distinctions in this respect between judicial officers at different ranks in the
hierarchy. More likely, the immunity was simply overlooked because of the
press of business, the novelty of the circumstances or a slip-up, easy enough
to happen in human affairs.
…
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33
177 Cases might arise in which an issue as to the characterisation of
the judicial officer’s functions and powers is presented so as, arguably, to
take the exercise of those functions and powers out of the immunity provided
for in the legislation. It is unnecessary in this appeal to explore the
circumstances in which that might be so. It is sufficient to say that the
exercise by the appellant of the functions and powers conferred on her under
s 10 of the Magistrates Act with respect to Magistrate Gribbin, as now
disclosed in all its detail in these proceedings, is clearly within the
classification of a performance or exercise of an administrative function and
power such as conferred on her by s 10 of the Magistrates Act. If the
immunity point had been raised at the proper time (namely when any charge
for criminal responsibility was being considered by the prosecution, at the
directions hearing or on any arraignment of the appellant), the facts then
known would have demanded classification of the appellant’s conduct as
falling within s 30 of the Code. Certainly, it would have fallen within that
provision as extended by s 21A of the Magistrates Act. The second textual
issue must therefore be decided in the appellant’s favour.”
Observations to similar effect were made by Judges of Appeal in the NSW
Court of Appeal in Rajski v Wood & Ors.13 A plaintiff sought a declaration
from the Court that the decision of the Chief Justice and/or the Listing Judge
in the Common Law Division allocating a particular judge to hear his case,
was invalid. In rejecting the application, Kirby P said:
“At the outset of the consideration of this claim for relief it is appropriate to
note the mischief for the administration of justice and judicial independence
which would arise, if relief of the kind sought by the opponent, a litigant in
the Court, were provided. It is one of the fundamental principles of judicial
independence that the constitution of a court should be outside the control
or influence of litigants in the court. This self-evident truth is reflected not
only in local law and practice. It is clearly laid down in principles concerning
the independence of the judiciary contained in international statements on
the subject. …” (518G – 519A)
“Courts are vigilant to adopt procedures to guard against forum shopping
and judge selection by parties to litigation. Sometimes practices are adopted
to provide a random assignment of judges, precisely to reduce the risk that
parties to litigation might, by their own actions, influence the choice of the
judge to hear their case. Generally, however, by express law, inherent power
or conventional practice, the constitution of courts is left to the presiding
judge in whom the power is reposed in the confidence that he or she will
exercise it lawfully, neutrally and impartially and strictly for the achievement
of the purpose of the grant of the power. That purpose remains always the
achievement in each case submitted to judicial determination of justice
according to law.” (519F – 520A)
Priestley JA agreed with Kirby P and said:
“The only matter for decision in the present case is whether a litigant in this
Court can challenge, by further litigation within the Court, the administrative
arrangements within the Court by which the business of the Court is
13 (1989) 18 NSWLR 512.
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34
allocated among its judges. To my mind nothing in s 39 or otherwise in the
law of New South Wales suggests that it is open to a litigant to make such a
challenge.” (523D)
Hope AJA when agreeing with the other two judges said:
“The internal arrangements of superior courts of record have, subject to the
provisions of any statute, always been a matter within the inherent power of
the court. This inherent jurisdiction has always included the nomination or
allocation of judges to hear and determine particular proceedings. No doubt
before the commencement of the Supreme Court Act 1970, arrangements
were made from time to time by the Chief Justice or a Chief Judge to ensure
that the assignment of judges was carried out in an orderly and acceptable
way, and in particular without the influence of the parties to the proceedings
or any other persons. …
If it was impracticable in the circumstances to deal with the problem thus
arising in accordance with any existing arrangements or procedures,
whether by reason of the unavailability of the Chief Justice, Chief Judge or
otherwise, the judge simply arranged that another judge should hear the
case, and generally that he should hear the case which had been assigned
to that judge. This type of case, and other like cases where there was a need
to make a change in the assignment of judges to particular cases, was not
some hypothetical or far-fetched possibility. It was a matter of regular
occurrence, and the business of the court would indeed have been slowed
down considerably if the inherent power of judges of the court to make
arrangements of this kind had not existed. The assignment of a particular
judge to hear a case pursuant to this inherent power was not, in my opinion,
a matter which was justiciable by a litigant who did not want a particular
judge to hear the case. The interference with the due administration of justice
which could take place if it were otherwise is apparent.” (525G – 526D)
These cases support the proposition that the meaning of “judicial function”
should not be the narrow adjudicative construction that the IC relied upon.
The very things with which the IC was concerned, and to which the
documents related, i.e. the constitution of the court and discussions about
the constitution of the court between senior judges, are not to be dismissed
as non-judicial functions. In this case, the applicant at the time held the
position of Chief Justice upon whom both the SCQ Act and the Electoral
Act conferred the function of doing these very things.
In Kline v Official Secretary to the Governor General,14 the High Court
considered an application under the Freedom of Information Act 1982 (Cth)
(the Commonwealth Act) for access to documents concerning the Governor
General’s selection of members to the Order of Australia. The
Commonwealth Act is structured differently to the RTI Act. However, s 6(A)
provides that the Commonwealth Act does not apply to any request for
access to a document of the Official Secretary to the Governor General
“unless the document relates to matters of an administrative nature”. A
14 [2013] HCA 52; 249 CLR 645.
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35
similar protection is provided by s 5 of the Commonwealth Act with respect
to courts and members of the judiciary.
In holding that the documents held by the Official Secretary were excluded
from the operation of the Commonwealth Act, the High Court drew attention
to the obvious parallel with the exclusion of the courts provided by s 5:
“… not every action undertaken by a judge in the discharge of the
substantive powers and functions of adjudication is undertaken in public. For
example, revision of an unrevised transcript of proceedings heard in open
court may occur in chambers. That task is referable to the exercise of
judicial, rather than administrative, powers and functions.”15
The IC was wrong to conclude that Fingleton and Kline did not have “any
direct application” to the present case. A proper application of those cases
compels the conclusion that the documents in dispute concerned various
aspects of the “court’s judicial functions”, i.e. the management of court
affairs, including the assignment of judges to hear various matters and
constitute certain courts.
The test for the application of the exemption for courts and judges in the
RTI Act is made even wider by the use of the words “in relation to”. These
are words of wide import and numerous cases have demonstrated that the
words “in relation to” require no more than a relationship, whether direct or
indirect, between two subject matters. Item 1, part 2 of schedule 2 extends
to documents which have a connection with the court’s judicial functions.
The exemption is not limited to the adjudication by one judge of a particular
dispute before that judge but means something broader. This breadth is
enhanced by the connecting words selected by the drafter namely “in
relation to”.
Something which is not itself the discharge of a judicial function (an
administrative one) can nonetheless “relate to” the judicial function. The
wide connecting words show that Parliament intended things which were
not themselves documents produced in the performance of judicial
functions, would also be within the scope of the exemption as documents
“relating to” that judicial function.
This is especially significant when considering the function of the Chief
Justice whose responsibilities are to manage the orderly and efficient
exercise of the Court’s jurisdiction and powers, or to decide the composition
of a court for a particular matter. Documents which are brought into
existence in the performance of these activities (even if administrative)
plainly “relate to” the court’s judicial functions.
Fingleton stands for the clear proposition that the purpose of conferring
immunity upon judicial officers in relation to the exercise of judicial
functions, whether administrative in nature or not, is to preserve judicial
independence. That purpose is identical to the legislative purpose in
15 Ibid. per French CJ, Crennan, Kiefel and Bell JJ at [45].
-- 35 of 58 --
36
excluding documents relating to judicial functions from the Act’s operation
under s 17 and schedule 2, part 2, item 1.
In failing to properly apply these key principles, the IC erred in her decision
to allow access to the documents in dispute.
This error is confirmed when regard is had to the nature of the documents
in dispute. These can be sufficiently described as follows:
a) The constitution of the CDR.
b) The removal and later re-instatement of Justice Byrne as SJA.
c) The applicant’s court calendar/sitting arrangements.
The IC’s decision was that none of these documents fell within the scope of
the exception.
A number of the documents relate to listing matters for the CDR. The same
documents and other documents involve arrangements for other
programmed sittings of the court in the court calendar. All of these
documents were documents that were generated by the judges and
involved the judges, rather than being documents prepared by registry staff.
This is particularly so in relation to the documents concerning the removal
and later re-instatement of the SJA. These are documents which are the
product of or relate to that which only a judicial officer may do, specifically
the SJA and the Chief Justice. Such documents are correctly characterised
as documents “in relation to judicial functions”.
The IC’s reliance upon the specific passage in the decision of Cannon is at
best problematic. Cannon was decided under the predecessor to the
current RTI Act, namely the Freedom of Information Act 1992, in which the
“judicial functions” exception operated in a slightly different manner.
It also needs to be remembered that the documents in dispute were
provided by the judges and the Supreme Court to the DJAG Processing
Unit. Those documents are not copies of court documents, which were
simply lying on files of Government Departments, such as copies of
affidavits and pleadings. Such documents do not relate to “judicial
functions” in that they are not the product of “that which only a judicial officer
may do”. Clearly, it cannot have been Parliament’s intent to exclude from
the application of the RTI Act as a class any court documents (i.e. copies
of documents located on a court’s file).
On a number of occasions, the IC justified her reasoning by referring to the
pro-disclosure bias of the Act. The IC interpreted that bias to mean that the
expression “in relation to” could not be read in the broad way, which its
terms indicate. That approach involved error. The pro-disclosure bias
applies when the question is whether or not a document should be
disclosed, not at the point when one is determining whether or not
something is an entity to which the Act does not apply.
-- 36 of 58 --
37
The IC relied upon the absence of any objection by judges, including the
applicant, to producing the documents requested by DJAG. With due
respect to the IC, that fact is irrelevant. The issue here is a question of
statutory construction, involving as it does, important matters of principle
insofar as the institutional integrity of the Supreme Court is concerned. On
the IC’s reasoning, the only occasion on which the judicial functions
exception would apply would be if an applicant for access applied directly
to the courts instead of to DJAG. On the IC’s reasoning, documents such
as draft decisions and exchanges of emails between judges who constitute
a panel of the Court of Appeal discussing the approach to a decision, are
documents of DJAG which are amenable to an RTI application. This cannot
be correct. The judicial exemption must have a wider application along the
lines which I have set out above.
DJAG submitted that the term “judicial functions” does not in its terms and
legal meaning contemplate a distinction between “judicial power” and
“judicial administrative functions”. Indeed, the submission was made that
there is a category of function, which is “judicial administration” which falls
within the meaning of the term “judicial functions” for the purposes of the
RTI Act. I agree. The extracts from Fingleton and the statements of
principle in Kline support the existence of a category of judicial function,
which is judicial administration, some examples of which are given in those
cases. That concept is applicable to the documents in issue in this case,
concerning as they do, an appointment to the CDR and also the functions
of SJA. As Gleeson CJ noted in Fingleton, those judicial administrative
functions are an important aspect of the independence of the judiciary.
Accordingly, they fall within the ambit of the judicial functions exception in
the RTI Act.
The applicant’s grounds of appeal c) and d) and DJAG’s grounds of appeal
a), b), c) and d) have been made out.
Does the information in issue comprise exempt information?
The applicant identified specific information that he submitted was exempt
information under schedule 3, s 8(1) of the RTI Act because it would found
an action for breach of confidence.
The IC rejected that submission. In order to understand the IC’s reasoning,
it is necessary to set out her understanding of the cumulative requirements
which must be established to give rise to an equitable obligation of
confidence. These were:
a) The information must be capable of being specifically identifiable as
information that is secret, rather than generally available;
b) The information must have the necessary quality of confidence;
c) The circumstances of the communication must create an equitable
obligation of confidence;
-- 37 of 58 --
38
d) Disclosure of the information to the access applicant must constitute
an unauthorised use of the confidential information; and
e) Disclosure must cause detriment to the confider.
“Analysis
140 Many of the communications that the third party claims are
subject to an equitable obligation of confidence were not conveyed by the
third party. Rather, they were communicated to the third party by other
judges. When consulted about disclosure, none of the judges involved made
any claim for confidentiality in respect of their communications, and none
objected to disclosure of the relevant information under the RTI Act. A
number pressed for full disclosure. I do not consider that the third party has
standing to bring an action in equity to enforce an obligation of confidence
in respect of information that he did not supply and where the confider does
not object to disclosure. I do not consider that requirements (d) and (e)
above can be met in such circumstances.
141 As regards the documents in issue that contain information
conveyed by the third party, I have examined both the nature of the
information and the circumstances surrounding its communication. I am not
satisfied that:
the information possesses 'the necessary quality of
confidence'; and/or
the information was communicated in such circumstances
that any reasonable person standing in the shoes of the
recipient would reasonably have realised that the
information was being given to them in confidence.
142 Generally, for information to be treated as confidential information
by the courts, it must have been communicated by the confider and received
by the recipient on the basis of a mutual understanding that the information
is not to be disclosed except where authorised. Where there is no express
statement of confidentiality, one test for deciding whether an obligation of
confidence exists is whether information has been supplied for a specific
purpose and in circumstances where there is a reasonable expectation that
confidentiality will be preserved. However, it has been held that the test of
a ‘confider's purpose’ will not ordinarily be appropriate where each party's
interest is quite different, and known to be so.
143 Most of the documents in question comprise email or memoranda
exchanges between the third party and other judges regarding aspects of
the administration of the Court, including the protocol for appointing judges
to sit on the CDR, and the position of the SJA. They were prepared by the
third party and received by other judges in the performance by them of their
administrative functions as members of the Supreme Court. While some
may incidentally reveal a level of tension between the third party and other
judges, they discuss work-related issues and I am not satisfied that a
reasonable person ought to have realised that the third party was
communicating the information in confidence. Some documents concerning
the dispute between the third party and the SJA that resulted in the third
party temporarily taking over the SJA's duties gave effect to significant
-- 38 of 58 --
39
changes in the functioning of the Court. I do not consider that it was
reasonable for the third party to expect that communications of that nature
would be received in confidence. It is also clear that in applying the
‘confider's purpose’ test, the third party's interests in communicating such
information about the change in role were different from the SJA's in
receiving it, and known to be so.
144 In addition, the conflict between the third party and other judges
over the constitution of the CDR and the role of the SJA has been publicly
disclosed. I do not regard related information about these issues as being
sufficiently secret for it to be the subject of an obligation of confidence.
145 As regards the audio recording, I acknowledge that the third party
was not aware that the meeting was being taped. I will discuss in detail
below, in the context of the public interest balancing test, the relevant
provisions of the Invasion of Privacy Act raised by the third party. I simply
note here that I do not accept the third party's submission that the information
was ‘improperly obtained’. It is not an offence for a person who is a party
to a conversation to tape that conversation. Furthermore, I am not satisfied
that the bulk of the contents of the audio recording possess the necessary
quality of confidence. As DJAG itself has acknowledged, the contents of the
recorded conversation have been ‘widely reported upon’.
Public interest issues
146 Public interest issues are also relevant when considering a claim
that government information or information supplied to government is
subject to an equitable obligation of confidence. Further difficulties with the
third party's claim for exemption arise in this context.
147 Given my finding that, under administrative arrangements
established by government, the Supreme Court is part of DJAG when
exercising its non-judicial functions, I am satisfied that the information in
issue is properly to be regarded as government information (rather than
information supplied to government by a third party or separate entity). The
courts will not grant protection from disclosure of such information unless –
disclosure would injure the public interest. But even if the information were
to be characterised as information supplied to government by a third party,
it has been established that Australian law will recognise a public interest
exception on the basis that an obligation of confidence claimed to apply in
respect of information supplied to government will necessarily be subject to
the public's legitimate interest in obtaining information about the affairs of
government.
148 I will explain in detail below, in discussing the application of the
public interest balancing test, why I am satisfied that disclosure of the
information in issue would, on balance, be in the public interest. This
includes the audio recording and related notes of the taped conversation.
For the purposes of considering the claims by DJAG and the third party for
exemption under schedule 3, section 8(1), it is sufficient for me to find that I
am not satisfied that disclosure of the information in issue would injure the
public interest. I reject the third party's submission that disclosure could
reasonably be expected to harm the doctrine of judicial independence. The
third party argues that that judges must be perceived to be independent of
influences that might reasonably be expected to compromise their ability to
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40
decide cases fairly and impartially. He submits that this perception may be
compromised were it to be disclosed that serious animosity exists between
judges.
149 I accept the importance of the doctrine of judicial independence.
However, in the present circumstances, I do not accept that disclosure of the
information in issue could reasonably be expected to prejudice that doctrine.
As noted, while some documents in issue may disclose a level of discord
between the third party and other judges while the third party held the
position of Chief Justice (this has been reported and commented upon
publicly in any event, including by the third party himself), there is nothing
before me (including in the documents themselves) to suggest that the
tension extended to an interference with the independence of each judge
when exercising their judicial functions. (Again, I reiterate my view that the
documents in issue do not relate to the exercise of the Court's judicial
functions.)
150 In those circumstances, I do not accept that disclosure could
reasonably be expected to prejudice the doctrine of judicial independence of
the Court.
151 While I reject the third party's argument that prejudice to the
proper functioning of the Court could occur through harm to the doctrine of
judicial independence, I have given consideration to whether disclosure of
the information in issue could reasonably be expected to prejudice the
proper functioning of the Court by inhibiting the future free and open
communication between judicial officers concerning the administration of the
Court (thereby injuring the public interest). I accept the importance of the
ability of judges to communicate freely with each other in the interests of the
efficient and effective functioning of the Court.
152 I acknowledge there may be occasions where the release of
sensitive information could reasonably be expected to impede the proper
functioning of the Court by inhibiting the willingness of judges to express
open and candid views about the functioning of the Court. However, in this
case, the major topics of dispute between the judges, including the dispute
about the constitution of the CDR and the functioning of the Court through
the role of the SJA (both of which I consider to be issues of public
importance), have already been disclosed and discussed publicly. In those
circumstances, I have difficulty accepting that disclosure of the information
in issue could reasonably be expected to inhibit future free and open
communication between the judges.
153 Furthermore, I note that none of the judges consulted about the
information in issue raised a concern that disclosure of their communications
would make them reluctant to express openly their views to fellow judges in
future. As mentioned, none advised that they considered their
communications to be confidential. When consulted by DJAG, a number
argued for full public disclosure of their communications (rather than the
partial disclosure proposed by DJAG) in order to give a complete picture of
the events that had transpired. A number reiterated their desire for full
disclosure of their communications when consulted by OIC.
154 There is therefore no material before me sufficient to support a
finding that disclosure of the information in issue could reasonably be
-- 40 of 58 --
41
expected to prejudice the proper functioning of the Supreme Court through
the inhibiting of open communication between judges.
Conclusion
155 For the reasons set out above, I am not satisfied that the
requirements for establishing that disclosure of the information in issue
would found an action for breach of confidence are met. The information in
issue is therefore not exempt information under schedule 3, section 8 of the
RTI Act.”
Consideration
Schedule 3, section 8(1) of the RTI Act is in the following terms:
“Exempt information
8 Information disclosure of which would found action for breach of
confidence:
(1) Information is exempt information if its disclosure would found an
action for breach of confidence.
(2) However, deliberative process information is not exempt
information under subsection (1) unless it consists of information
communicated by an entity other than –
(a) A person in the capacity of –
(i) a Minister; or
(ii) a member of the staff of, or a consultant to, a
Minister; or
(iii) an officer of an agency; or
(b) the State or an agency.
(3) In this section –
deliberative process information means information disclosing –
(a) an opinion, advice or recommendation that has been
obtained, prepared or recorded; or
(b) a consultation or deliberation that has taken place;
in the course of, or for the purposes of, the deliberative
processes involved in the functions of Government.”
The IC did not apply the schedule 3, section 8(1) exemption because she
concluded that access would not found an action for breach of confidence
because:
-- 41 of 58 --
42
a) The applicant was not the “originator” of many of the documents in
dispute;
b) The public interest required the disclosure of the documents; and
c) None of the judges (other than the applicant) objected to disclosure.
I have concluded that the IC erred in not applying that exemption. My
reasoning is as follows:
The fact that a communication may have originated with a judge other than
the applicant does not exclude that communication from containing
information confidential to the applicant. Assessed objectively, one would
expect that a private communication between two judges is a
communication of a confidential nature.16
The applicant has a right to the maintenance of confidentiality in the
information sent privately by him to members of the judiciary in the exercise
of his functions as Chief Justice. It is not to the point that other judges have
repeated (amongst themselves or to the applicant) information in other
correspondence. A voluntary release of that information would be
actionable.17
In any event, many of the documents in dispute did originate with the
applicant (or originated from another judge but itself revealing something
communicated originally by the applicant). The IC failed to separately
consider these documents and whether they would found an action for
breach of confidence.
In respect of the audio recording, it is clear that that document was obtained
secretly and contains confidential information communicated by the
applicant to others (i.e. Justices Byrne and Boddice). In the ordinary course
of events, its publication would be an offence. It is therefore surprising to
suggest that the conversation, which is documented in the audio recording,
would have occurred in an identical fashion had it been revealed in advance
that it was to be recorded. At the very least, the audio recording (and its
related documents) are “exempt information” on the basis that their
disclosure would found an action for breach of confidence.
The IC also erred in her second conclusion. A public interest harm arises
from a release of the documents in dispute in two respects at least. First,
the disclosure might harm public confidence in the judiciary and second,
disclosure on this occasion might inhibit free and frank discussion between
judges in the future so as to impair the functioning of the judiciary and the
discharge of the Chief Justice’s responsibilities under s 15 of the SCQ Act.
16 Mense v Milenkovic (1973) VR 784 at 801 per McInerney J.
17 Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408 at 460 per
Gaudron J, at 474 per McHugh J.
-- 42 of 58 --
43
In relation to this latter aspect, the IC expressly recognised that the release
of sensitive information:
“… could reasonably be expected to impede the proper functioning of the
court by inhibiting the willingness of judges to express open and candid
views about the functioning of the court.” [152]
The IC discounted this conclusion because “major topics of dispute”
contained within the documents in dispute had already been discussed
publicly. That observation, however, does not answer either aspect of the
public interest referred to above, i.e. harm to public confidence in the
judiciary and inhibiting free and frank discussion between judges.
If disclosure is supported because “major topics of dispute” have been
discussed publicly, that is bound to inhibit the future freedom of
communications between judges. It is precisely the reason why judges are
entitled to confidentiality in their communications. The proposition that a
right to privacy and confidentiality, fundamental to free and open
communication between members of the judiciary, might be obviated by the
discussion of “topics” of dispute in the public realm is hard to justify.
Fundamentally, not all of the content of the documents in dispute has been
released into the public domain. An analysis of the limited extent to which
the content of those documents had been repeated in public was conducted
by the applicant’s solicitors and presented in submissions to the IC. I have
concluded that it was wrong for the IC to place reliance on the discussion
of “major topics of dispute” when discounting the confidentiality which
otherwise existed in the documents in dispute.
The third conclusion reached by the IC is irrelevant in determining whether
an action for breach of confidence might be maintained by the applicant.
The confidentiality in any and all documents which effect or record
communications by the applicant (even if passed on between other judges)
cannot be defeated by the lack of objection from other judges to it being
disclosed. No authorities are provided by the IC for that conclusion.
In addition, there is confidentiality in some of the documents in dispute that
may be shared amongst the judges (and therefore would require a “waiver”
of confidentiality from all of them, including the applicant). Some
documents, such as the minutes of a meeting of judges of the Supreme
Court, are expressly headed “Confidential to the Judges”. It is not clear
how the IC concluded that a waiver of confidentiality by other judges
constituted a waiver by the applicant.
In the US case of Soucie v David18 Wilkey J19 said:
18 448 F.2d 1067 (D.C. Cir. (1971)).
19 citing Rogers “The Right to Know Government Business from the Viewpoint of the
Government Official”, 40 Marq L Rev 83,89 (1956).
-- 43 of 58 --
44
“Historically and apart from the constitution the privilege against public
disclosure or disclosure of other co-equal branches of the Government
arises from the common sense common law principle that not all public
business can be transacted completely in the open, that public officials are
entitled to the private advice of their subordinates and confer amongst
themselves freely and frankly, without fear of disclosure, otherwise the
advice received and the exchange of views may not be as frank and honest
as the public could require.
“No doubt all of us at times have wished that we might have been able to sit
and listen to the deliberation of judges in conference to an executive session
of a Congressional committee or to a Cabinet meeting in order to find out
the basis for a particular action or decision. However, government could not
function if it was permissible to go behind judicial, legislative or executive
action and demand a full accounting from all subordinates who may have
been called upon to make a recommendation in the matter. Such a process
would be self-defeating.””
The recognition of this “judicial privilege” extending to communications
between judges supports the conclusion that the communications were
made in circumstances of confidence and that it is a confidentiality which
cannot be given up by the consent (or lack of objection) of only some of the
judges.
The applicant’s ground of appeal e) has been made out.
Would disclosure of the information in issue be, on balance, contrary to
the public interest?
The IC noted that the right of access to information contained in the RTI Act
was subject to limitations, one of which was refusal of access where
disclosure would on balance be contrary to the public interest.
Personal information and privacy
The IC recognised that a factor favouring nondisclosure arose where
disclosing information could reasonably be expected to prejudice the
protection of an individual’s right to privacy and the nondisclosure of
personal information. On this issue, the IC reasoned as follows:
“179 I acknowledge that some of the information in issue is the third
party's personal information and is sensitive in nature, comprising opinions,
thoughts and feelings. A public interest harm therefore arises by disclosure.
…
182 A distinction is to be drawn between a person’s personal and
public spheres. In Hardy and Department of Health [2011] Ql Cmr 28 at [26])
a distinction was drawn between information in the personal sphere and
‘routine work information – that is, information that is solely and wholly
related to the routine day to day work duties of a public service officer”.
-- 44 of 58 --
45
183 I note that all of the information in issue was generated in the
context of a workplace environment and all of it stems from work-related
issues.
184 However, I also acknowledge the sensitive nature of some of the
information in issue that comprises feelings and opinions about work
colleagues and the fact that some of it arose from circumstances that could
not be considered to be routine. Ordinarily, this would give rise to a
significant public interest in protecting the privacy of the individuals
concerned. But, as noted above, I must also take account of relevant
information that is in the public domain.
185 In his submissions, the third party argued that very little of the
information in issue is in the public domain. He contended that while some
public documents touched on some of the same issues, they did so only in
a ‘general, and often, vague manner without offering specific details’. The
third party described the information as highly personal and sensitive, and
that its disclosure under the RTI Act would be a significant intrusion into the
privacy of the relevant individuals:
“... the information comprises information about serious animosity between
members of the Queensland judiciary and (what may be perceived as)
attempts to delegitimise the legislative commission of our client. The
information identifies individuals, details their emotional reactions to events
in the workplace and outlines concerns of a sensitive nature which were
privately conveyed between members of the Supreme Court Bench.”
186 I do not accept the third party's description of the information in
issue. While, as noted, some documents may incidentally reveal tension
between the third party and other judges, all were generated in the context
of a workplace environment and all stem from work-related issues. Not all
of the information contained in the documents in issue is already in the public
domain, however, as I have noted, the central topics about which there was
conflict between the third party and other judges were publicly referred to
and discussed and debated in media articles on numerous occasions. In
respect of the dispute about the constitution of the CDR, the substance of
the dispute was described in the valedictory speech given by a retiring judge,
and was responded to by the third party in his letters to the Bar Association
and the Law Society. Similarly, the third party's actions regarding the SJA,
and the later reversal by the third party of his decision to assume
responsibility for the duties performed by the SJA, were referred to publicly
in the valedictory speech of the retiring judge. The documents in issue, such
as minutes and resolutions of meetings of judges; memoranda,
correspondence and emails between judges; and the audio recording,
discuss these issues and provide a more complete picture of what is already
publicly known about the events that transpired and the background to the
disputes.
…
189 The meeting in question occurred in the workplace, and work-
related matters were discussed. The third party has indicated that he
considered that what was discussed was ‘only between the three of us in the
room'. However, given that issues affecting the operation of the Court were
discussed, particularly, important issues of public interest concerning the
-- 45 of 58 --
46
composition of the CDR to ensure no perception of bias, as well as the
position of the SJA, I do not accept that it was reasonable to expect that the
discussions would remain confidential as between the three participants to
the meeting.
190 I acknowledge that the meeting was taped without the third party's
knowledge or consent. I also acknowledge that a recording of a person's
voice conveys a range of 'nonlexical' information, such as tone, cadence,
emphasis, inflection and pauses. Such information is sensitive and highly
personal in nature. The public interest harm that could ordinarily be
expected to flow from disclosure of personal information of this kind is
relatively significant having regard to the prejudicial effect on the protection
of an individual's right to privacy. However, in some instances, it is also true
that information of this type can add important meaning and context to what
is being conveyed during a conversation.
191 Summaries of what was discussed at the meeting have been
published in various media articles. The circumstances under which, and by
whom, details of the meeting were revealed to the media are not known to
me, and are irrelevant in any event. I reject DJAG's submission that the fact
that details of the meeting have been widely reported upon in the media
should not affect the weight to be given to the third party's privacy interests.
If the public is already aware of information, by whatever means, the public
interest in protecting a person's privacy regarding that information is
necessarily lessened.
Conclusion
192 For the reasons discussed, I give significant weight to the public
interest in protecting the privacy interests of the third party in respect of the
nonlexical information contained in the audio recording. As regards the
remainder of the information in issue (including the content of the audio
recording), I find that the information that is already in the public domain
about the relevant issues necessarily lessens the weight to be afforded to
the public interest in protecting the third party's privacy interests. As a result,
I afford this public interest factor moderate weight in respect of such
information.”
The IC noted that the disclosure of certain information was prohibited by
the RTI Act. This was because the RTI Act recognised that a public interest
favouring nondisclosure arises when disclosure of the information in issue
is prohibited by an Act.
“196 Section 45(1) of the Invasion of Privacy Act operates to prohibit a
person who has been a party to a private conversation, and who has
recorded that conversation, from communicating or publishing the record
(directly or indirectly) by use of the listening device or any statement
prepared from the record. However, it is not an absolute prohibition. Section
45(2) provides that section 45(1) does not apply in certain circumstances,
which are listed. These include, for example, where publication is in the
public interest; or in the performance of a duty of the person; or is for the
protection of the lawful interests of that person.”
The IC set out her conclusion on this issue as follows:
-- 46 of 58 --
47
“Conclusion
199 For the reasons discussed, I am not satisfied that schedule 4, part
3, item 22 of the RTI Act applies to a consideration of the public interest
factors favouring nondisclosure of the audio recording. Section 45(1) of the
Invasion of Privacy Act does not contain an absolute prohibition on
disclosure of the audio recording and whether section 45(2) would operate
to permit disclosure is not something I can establish.
200 If I am wrong in interpreting section 45 in that manner and it is
sufficient that section 45(1) contains a prohibition on disclosure, I would
afford schedule 4, part 3, item 22 moderate weight as a factor favouring
nondisclosure of the audio recording, taking account of the information that
is already in the public domain about the contents of the audio recording.”
The IC next considered whether disclosure could reasonably be expected
to cause a loss of public confidence in the judiciary. The IC dealt with that
matter as follows:
“202 In my initial response to this issue, I raised with DJAG that
schedule 4, part 1 of the RTI Act provides that it is irrelevant in deciding the
public interest that disclosure could reasonably be expected to cause
embarrassment to the Government or to cause a loss of confidence in the
Government.
…
204 I acknowledge that punctuation in an Act is part of the Act.
However, the use of 'Government’ and 'government' in different contexts
throughout the RTI Act is not consistent and I am not satisfied that any clear
legislative intent can be drawn from circumstances where one or the other
is used. As DJAG noted in its internal review decision, ‘Government’ is not
defined separately in the RTI Act's dictionary (‘government’, however, is
defined and includes a court) nor do the Explanatory Notes to the RTI Bill
explain the distinction. The judiciary forms part of a government as one of
the three recognised arms of any Westminster model of government. If
DJAG's interpretation of ‘Government’ were correct (as excluding the
judiciary), public interest factors favouring disclosure such as those
contained in schedule 4, part 2, item 1 (enhancing the Government's
accountability) and schedule 4, part 2, item 3 (informing the community of
the Government's operations) would not apply to the courts. I am not
satisfied there is justification for this interpretation. Judicial officers are
appointed by governments and are paid from the public purse. Parliament
intended that the non-judicial functions of courts and judicial officers be open
to public scrutiny under the RTI Act. Unlike the Commonwealth FOI Act,
judicial officers do not enjoy a complete exclusion from the RTI Act in their
capacity as holders of judicial office.
205 Moreover, I consider it is arguable that, rather than undermining
public confidence in the judiciary, disclosure of the information in issue may
serve to reinforce public confidence by showing that members of the Court
were concerned for its proper administration and were able to raise and
discuss issues that they considered were in the best interests of the proper
administration of the Court.
-- 47 of 58 --
48
206 Even if I were to accept this claim of an anticipated loss of
confidence in the judiciary as a relevant factor in determining the balance of
the public interest, I consider that, given the information that is already
publicly known about the rift in the Supreme Court that occurred during the
third party's tenure as Chief Justice, it is not reasonable to expect that
disclosure of the information in issue at this point in time would contribute
significantly to any undermining of public confidence in the judiciary. Of
relevance is the fact that the third party resigned as Chief Justice in July
2015 and moved to QCAT, with a new Chief Justice appointed. The source
of any ongoing public conflict between the third party and other judges
arising from his role as Chief Justice has therefore ended. In those
circumstances, I am not satisfied that disclosure would have an ongoing
negative effect on public confidence in the judiciary.
Conclusion
207 For the reasons explained, I am not satisfied that a loss of public
confidence in the judiciary is a relevant factor in deciding the public interest.
If it were relevant, I would afford it low weight for the reasons explained.”
The final factor favouring nondisclosure considered by the IC was prejudice
to the ability to obtain confidential information and the adverse effect on
confidential communications (schedule 4, part 3, item 8 and item 16 of the
RTI Act).
“209 In its internal review decision, DJAG focused on the audio
recording and found as follows:
... There is a good argument for contending that whatever remains of the
conversation that has not been the subject of the media statements remains
information of a confidential nature. ...
As to the second factor, I think it is reasonable to expect that if the full text
of the conversation were to be revealed, then that would prejudice the future
supply of information of that type, in the sense of judges apparently in conflict
over a particular point not communicating frankly over the conflict.
210 I have already explained above my finding that the information in
issue is not confidential because of its nature, and/or the circumstances
under which it was communicated. In addition, DJAG itself acknowledges
that the contents of the recorded conversation have been reported upon
widely in the media.
211 I reiterate my acceptance of the general proposition, as explained
above, that there may be occasions where the public disclosure of
confidential communications by judicial officers concerning the functioning
and administration of the Court may make judicial officers reluctant in the
future to supply such information. However, I do not regard that as a
reasonable expectation in the particular circumstances of this case, given
not only that (with the exception of the third party), no judge has made such
a submission, but also because much of the substance of the information
concerning the administration of the Court is already in the public domain.
-- 48 of 58 --
49
212 In his submissions, the third party characterises the information in
issue as information that was communicated in confidence by the Supreme
Court to DJAG for the purpose of assisting DJAG to process the RTI access
application:
We understand that there is no contractual or customary obligation on the
Supreme Court to provide such assistance. The documents were provided
in aid of agency cooperation. It is very likely that publication of the
[information in issue], which will no doubt attract significant media attention,
would damage relations between DJAG and the Supreme Court. The future
cooperation of the Supreme Court to provide such assistance to DJAG or
other government agencies could reasonably be expected to be prejudiced.
213 I do not accept this characterisation as correct. As explained,
under the administrative arrangements established by government, the
Court, when exercising its administrative functions, is properly to be
regarded as part of DJAG for RTI purposes. Its administrative documents
are DJAG's administrative documents. Neither the Court nor its judicial
officers is in a position to refuse to ‘supply’ such documents in the future, nor
is it a question of them choosing or refusing to assist, or cooperate with,
DJAG or any other agency in the future. As a business unit of DJAG, the
Court and its officers are obliged under the RTI Act to search for and provide
to the RTI unit for processing, all responsive administrative documents.
Conclusion
214 For the reasons explained, I find that neither of these public
interest factors favouring nondisclosure arises for consideration in balancing
the public interest.”
The IC having rejected or downgraded the importance of those factors
which favoured nondisclosure, set out the factors in part 2 of schedule 4 of
the RTI Act which favoured disclosure:
Disclosure of the information could reasonably be expected to
contribute to positive and informed debate on important issues or
matters of serious interest;
Disclosure could reasonably be expected to promote open
discussion of public affairs and enhance the Government’s
accountability;
Disclosure could reasonably be expected to allow or assist inquiry
into possible deficiencies in the conduct or administration of an
agency or official; and
Disclosure could reasonably be expected to reveal the reason for a
government decision and any background or contextual information
that informed the decision.
The IC explained the application of those factors as follows:
-- 49 of 58 --
50
“226 … I have acknowledged that a significant amount of information
about the issues affecting the Court while the third party was Chief Justice
is already in the public domain. The contention that making more information
available would somehow result in only negative debate about the issues is
rejected. The process for constituting the CDR is a matter of considerable
public interest; as is the effective functioning of the Supreme Court through
the responsible discharge by the Chief Justice and the SJA of their
respective administrative responsibilities under the SCQ Act. Serious
concerns were raised publicly in connection with both of these issues and
the actions of the third party and other judges. The third party also raised
issues of public importance in his letters to the Bar Association and the Law
Society when he alleged that there had been an organised and co-ordinated
campaign by senior members of the legal community to undermine him. I
consider that disclosure of the information in issue in this review would
inform the community about the Court's administrative operations. It would
provide the public with a more complete picture of the relevant events and
the background to the conflict and disharmony within the Court around these
issues, as well as giving context to the information that has already been
disclosed. Disclosure could reasonably be expected to promote open
discussion of these important public affairs and contribute further to the
debate (both positive and negative) that has already occurred regarding the
administration of the Supreme Court; the process for constituting the CDR;
the administrative responsibilities of the Chief Justice and the SJA; and the
manner in which each discharged those responsibilities. As the third party
stated in a statement he released on 25 May 2015 foreshadowing his
resignation:
“... the disharmony between me and some judges has been played out in
the media. The public deserve resolution to this situation immediately.
But they deserve much more than that. These recent revelations shine a
light on serious cultural and structural problems within the judiciary.”
227 The Supreme Court is an important public institution, funded from
the public purse. In discharging their duties to properly administer the Court,
judicial officers are accountable to the public they serve. Where issues arise
and decisions are made which impact on the effective functioning of the
Court, there is strong public interest in disclosing information that would
assist the public to understand the issues. The efficient and effective
administration of the Court is crucial to the maintenance of an effective
justice system. The public interest in scrutinising the administration and
protocols of the Supreme Court and the administrative actions of its judicial
officers is necessarily high.
…
230 I do not accept that the passing of time has diminished to any
significant degree the public interest in inquiring into possible deficiencies
both in the administration of the Supreme Court and in the conduct of its
officers. Nor has it diminished the public interest in scrutinising and
understanding the process for constituting the CDR; or in understanding the
powers and roles of the Chief Justice and the SJA in administering the Court.
Moreover, the passing of time that DJAG refers to is through no fault of the
applicant. The access application was made to DJAG in March 2015, at a
time when the issues under consideration were current and the third party
still held the position of Chief Justice. It would be wrong to use the time it
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has taken to process the applicant's access, internal and external review
applications as the basis for a factor favouring nondisclosure.
231 I do not understand DJAG's second point. Disclosure of the
information in issue would give as complete a picture as is available (and
certainly a more complete picture than is already in the public domain
through the limited amount of information disclosed by DJAG), based on all
of the responsive information in the possession or under the control of DJAG.
Given that all judges of the Court were asked to conduct searches for any
responsive documents they held, the ‘picture that would emerge’ would of
course be that contained in the responsive documents that the judges
located. I am unsure of what other source of information DJAG contends
would allow for a different picture to emerge. If other relevant information
exists in the possession of either DJAG or others, it is open to those parties
to disclose such information to ensure that the picture is as complete as
possible.
Conclusion
232 For the reasons explained, I afford significant weight to each of
the public interest factors identified above that favour disclosure of the
information in issue.”
The IC, having balanced the public interest factors, concluded as follows:
“233 For the reasons previously expounded, as regards public interest
factors favouring nondisclosure, I afford significant weight to the public
interest in protecting the third party's right to privacy regarding the nonlexical
information contained in the audio recording, and moderate weight to the
public interest in protecting the third party's right to privacy in respect of the
remainder of the information in issue.
234 I am not satisfied that any of the other public interest factors
favouring nondisclosure relied upon by DJAG and the third party arise for
consideration. However, if I am wrong in respect of two of those factors, then,
as explained, I would afford low weight to the fact that disclosure could
reasonably be expected to cause a loss of public confidence in the judiciary;
and afford moderate weight to the fact that disclosure of the audio recording
is prohibited by an Act.
235 As regards the four public interest factors I have identified as
favouring disclosure, I afford each of them significant weight.
236 Having weighed these factors, I find that the public interest weighs
in favour of disclosure of the information in issue. I am satisfied that
disclosure of the information in issue would not, on balance, be contrary to
the public interest. Access to the information in issue therefore cannot be
refused under section 47(3)(b) and section 49 of the RTI Act.”
The IC then set out her conclusion in relation to the external review as
follows:
“Decision
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52
237 I set aside the decision under review. I find that the information
in issue does not comprise exempt information, and nor would its disclosure,
on balance, be contrary to the public interest. I therefore find that there is
no ground under the RTI Act on which DJAG may refuse access to the
information in issue.”
Consideration
The factors favouring disclosure in the public interest are set out in part 2
of schedule 4 of the RTI Act. Those factors favouring nondisclosure in the
public interest are set out in part 3 and part 4 of schedule 4. As the
summary of the IC’s conclusions as to the application of these factors
makes clear, she gave little weight to those favouring nondisclosure and
regarded the possibility of a loss of public confidence in the judiciary as
irrelevant to that issue. As a result, when carrying out the balancing
exercise required by the RTI Act, the weight of factors identified by her,
clearly favoured the disclosure of the documents. It is appreciated that an
appeal against the outcome of the balancing exercise by the IC is unlikely
to succeed. This is because of the discretionary nature of such a decision.20
On the other hand, an appeal against an IC decision on the public interest
weighing process can succeed if it is established that the IC has made an
error in law in that balancing process.
I have concluded that the IC erred in law by taking into account irrelevant
considerations, and failing to take into account relevant ones, in reaching
her conclusion that disclosure of the documents in dispute was not contrary
to the public interest.
The documents in dispute contained personal information and prejudiced the
applicant’s right to privacy
Among the factors in part 3 of schedule 4 favouring nondisclosure are that
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy (item 3 of part 3) and that disclosure would
disclose personal information of a person (item 6(1) of part 4). The IC
acknowledged that some of the information in the documents in dispute did
disclose the applicant’s personal information and that a public interest harm
therefore arises from its disclosure. She also acknowledged that some of
the information comprised feelings and opinions about work colleagues and
that ordinarily “this would give rise to a significant public interest in
protecting the privacy of the individual concerned”.
Although the IC took those matters into account as factors favouring
nondisclosure, she significantly discounted them on the basis that much of
the information in the documents in dispute was already in the public
domain and (in relation to the audio recording) that the information was not
confidential. The reasons why these conclusions are erroneous have
already been discussed. Most particularly, there is a significant difference
between having a summary of events and detailed information concerning
20 Gordon Resources v Billiton Mitsubishi [2002] QCATA 135.
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53
those events. What is not already in the public domain is that detailed
information.
Release of the audio recording is prohibited by the Invasion of Privacy Act 1971
(Qld)
Item 22 of part 3 of schedule 4 provides that a factor favouring
nondisclosure arises where disclosure is prohibited by an Act. In finding
that access ought to be granted to the audio recording, the IC failed to have
regard to the prohibition against disclosure of such a recording under
s 45(1) of the Invasion of Privacy Act (the Privacy Act). That section
provides that a person who (having been a party to a private conversation
and having used a listening device to record that conversation)
subsequently communicates or publishes any record of the conversation,
is guilty of an offence and is liable to conviction on indictment to a maximum
penalty of 40 penalty units, or imprisonment for 2 years.
On the facts of the meeting of 12 February 2015, it is clear that the applicant
did not consent to the recording of the conversation, nor the publication of
it in the media. Justice Byrne confirmed that he taped the meeting without
the knowledge of the other parties to the meeting. The best evidence before
the IC in the external review was:
The meeting was recorded without the knowledge or consent of the
applicant.
The conversation was understood by the applicant to be confidential.
In an article in The Australian, dated 29 May 2015, referred to in Mr
McKean’s application for internal review, the applicant is reported as
saying:
“My conversation at that time was on the basis that what was said in my
chambers was between only the three of us in the room.”
The prima facie prohibition on publication of the recording of the meeting
under s 45(1) applies. It is not necessary to prove a conviction of any
offence for item 22 to apply, only that disclosure of a document is prohibited
by an Act.
Section 45(2) provides various exemptions to the prohibition in s 45(1)
where the publication is “not more than reasonably necessary” in the public
interest, amongst other things. In relation to the exceptions in s 45(2) the
IC stated:
“… whether or not a relevant circumstance could be established in the
present case is not something I can determine, nor is it my role to do so. I
cannot therefore be satisfied that the prohibition contained in s 45(1) would
apply in the present circumstances such as to bring into consideration in
balancing the public interest the factor favouring nondisclosure contained in
schedule 4, part 3, item 22 of the RTI Act.” [192]
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The IC’s reasoning cannot be sustained. The factor, which was required to
be taken into account, is that disclosure is prohibited by an Act. The effect
of s 45(1) of the Privacy Act is to do so. If the IC were unable to be satisfied
whether exceptions to that prohibition exist, then she ought to have
proceeded on the basis of the prohibition; not discount the operation of the
prohibition altogether. Moreover, if to dispose of the application before her
it was necessary to consider the possible operation of s 45(2), then she
ought to have done so.
Section 45 of the Privacy Act establishes an offence which is clearly
directed at protecting the privacy of individuals. In this case, the applicant
is entitled to the benefit of that protection. The IC’s failure to properly
construe s 45 of the Privacy Act meant that the decision to grant access to
the documents in dispute (and specifically the audio recording) was made
without consideration of a relevant factor favouring nondisclosure in the
public interest.
The effect of s 45 is that unless a circumstance of justification applies, then
prima facie prohibition against disclosure would apply. That is the plain
meaning of s 45(1). Publication of a private conversation is prohibited by
that offence unless a circumstance of justification is established. The IC
expressly found that she could not determine whether any circumstance of
justification applied. In those circumstances, the IC’s decision involved
error in the interpretation of the effect of s 45 for the purpose of item 22 of
part 3 of schedule 4 of the RTI Act. Put simply, publication of the audio
recording as a private conversation is prohibited by s 45 of the Privacy Act
unless a circumstance of justification is established. The IC specifically
found that such a circumstance had not been established.
The applicant’s ground of appeal (g) and DJAG’s ground of appeal (e) have
been made out.
Release of the documents in dispute tends to prejudice the Supreme Court’s
affairs and cause a loss of confidence in the judiciary.
A public interest against disclosure due to the likelihood of a loss of
confidence in the judiciary is not a factor specifically mentioned in schedule
4. However, s 49 of the RTI Act provides that the list of public interest
factors in schedule 4 is not exhaustive. The IC accepted that such was the
case. It can also be argued that item 8 of schedule 4 of part 3 is relevant
in that the “proper administration of justice in Queensland” is a legitimate
public interest factor to be taken into account under the RTI Act and that
release of documents that would prejudice the “proper administration of
justice in Queensland” is a significant factor against disclosure of such
documents. The IC disregarded this submission on the basis that schedule
4, part 1, item 1 of the RTI Act provides that it is irrelevant that disclosure
of information could reasonably be expected to cause embarrassment to
“the Government or to cause a loss of confidence in the Government”. The
IC found that the phrase “the Government” as it appears in part 1 of
schedule 4 includes the judiciary.
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This interpretation of the RTI Act cannot be correct.
The object of the Act is expressed as giving a right of access to
information in “the government’s control”.
The Act distinguishes between “government” and “Government”.
This distinction must be recognised (but the IC does not do so).
Where Parliament has used the phrase “the Government” in
schedule 4 (in part 1, item 1 but also in part 2, items 1 and 3), it must
be taken to be referring to the elected Government of the day, i.e.
the government in office at the time, not government as a whole.
Such an interpretation is consistent with the fact that other factors
favouring nondisclosure of information include that disclosure will
“prejudice the … professional … affairs of entities”, (schedule 4, part
3, item 2) (which entities as set out above in the context of s 17, must
be taken to include the Supreme Court) “impede the administration
of justice generally, including procedural fairness” (schedule 4, part
3, item 8) and “impede the administration of justice for a person”
(schedule 4, part 3, item 9).
The important distinction is between the term used in item 1, part 1 of
schedule 4 which uses the expression “Government” and use of the term
“government” (with a lower case “g”) in the RTI Act; for example, in the
preamble to the RTI Act, the submission is supported with a number of
references to “Government” including paragraph (2) which states
“Government is proposing a new approach to access information” (which
can only refer to the then Government of the day). Accordingly, the context
of “Government” in the RTI Act, including in item 1, part 1 of schedule 4,
refers to the elected Government of the day, not the judiciary.
There is no definition in the RTI Act that defines “government” (with a lower
case “g”) to be or include a court or a judicial officer. The IC’s assertion to
the contrary incorporates her earlier finding that for the purposes of s 12 of
the RTI Act, the Supreme Court is an agency and part of DJAG. The
reasons why that finding is erroneous have already been set out. Indeed
item 1 of schedule 2, part 2 specifically provides that the RTI Act does not
apply to “a court” or the holder of a judicial office or other office connected
with a court, in relation to the court’s judicial functions. It follows that the
judiciary, the courts or a judicial officer cannot be considered to be part of
the “Government of the day” or a particular Government, as an elected
Government. To do so in a statute that is concerned with accountability of
elected Governments, such as the RTI Act, is to ignore the important
distinction between the judiciary and other arms of “government”
represented by the concept of separation of powers and judicial
independence reflected in the reasoning, by Gleeson CJ in Fingleton.
In reaching the conclusion that the documents in dispute should be
disclosed, the IC failed to take into account a relevant factor, namely the
detrimental impact that disclosure of the documents in dispute would have
upon the public’s faith in Queensland’s judicial institutions. It is not
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sufficient for the IC to say as she did at [236] of the external review that if
she had taken that factor into account, she would have given it a low weight.
What is clear is that the IC has not given genuine consideration to that factor
and appropriately taken it into account.21
Disclosure will prejudice the ability to obtain confidential information and affect
confidential communications
DJAG submitted to the IC that other factors favouring nondisclosure
included that disclosure could reasonably be expected to prejudice an
agency’s ability to obtain confidential information (item 16, part 3, schedule
4) and that disclosure could reasonably be expected to prejudice the future
supply of confidential information (item 8(1) of part 4, schedule 4).
The IC did not consider these grounds to be relevant on the basis that she
did not consider that the information in the documents in dispute was
confidential. The IC reiterated her acceptance of a “general proposition”
that release of communications between judicial officers concerning the
functioning and administration of the court “may make judicial officers
reluctant in the future to supply such information” but discounted this
conclusion on the basis that much of “the substance” of the information in
issue was in the public domain. The IC also repeated her finding that
neither the Supreme Court nor its judges could refuse to supply documents
to DJAG if an application for such documents was made to DJAG under the
RTI Act.
The reasons why those conclusions are wrong are set out above. In
particular, the inconsistency of the finding by the IC in [207] of the external
review with the institutional integrity of the Supreme Court is indicative of
error.
Factors favouring disclosure wrongly taken into account
In addition to failing to have regard to the relevant considerations set out
above, the IC also had regard to factors which were irrelevant in
determining that access ought to be granted to the access applicants. The
IC found that granting access would enhance “the Government’s
accountability; assist inquiry into possible deficiencies in the conduct or
administration of an agency or official; and reveal the reason for a
Government decision and any background or contextual information that
informed the decision.”
The first of these dot points proceeds on the erroneous basis that judiciary
was the “government” for the purposes of the schedule. The IC again
erroneously failed to have regard to the fact that Parliament has used the
distinct phrase “the Government” rather than “government” in relation to
accountability. This factor should be read down so as to refer to the
21 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; 162
CLR 24 per Mason J at 38-39; Tarkine National Coalition Inc v Minister for Sustainability
Environment Population and Communities [2013] FCA 694; 214 FCR 233 at [49].
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enhancement of the accountability of the elected Government of the day,
rather than the judiciary (which, as set out above, is already accountable to
the public in the open manner in which its curial processes are discharged).
As to the IC’s assertion that disclosure of the documents in dispute would
give the public an opportunity to inquire into “possible deficiencies in the
administration of the Supreme Court”, she failed to have regard to the
definition of “agency” and “official” as those words appear in item 5, part 2,
schedule 4. As set out above, excluded from those words are “entities”
including the Supreme Court and an officer of that court (in relation to the
discharge of that person’s judicial functions).
Finally, the proposition that the RTI Act allows the public (or a litigant) to
inquire from the judiciary as to the “reason for a Government decision”
(beyond a formal judgment) or for information as to the “contextual
background” for that decision, is absurd. It raises the issue already
discussed of access being provided to enable the public to get reasons for
why judges were appointed to particular matters, which cuts across the
independence of the judiciary, as discussed in Fingleton. For the reasons
set out above, decisions regarding the constitution and management of
courts, the maintenance of hearing lists and the setting down of matters
before judges are matters which no-one (other than the judges themselves)
are to be privy. At [235] – [236] of the external review, the IC has identified
those four factors as each being significant. If the IC is wrong about any of
those factors, her exercise of discretion in the weighing up process has
miscarried. For the reasons set out above, that exercise of discretion has
miscarried and a finding in relation to public interest factors should be set
aside.
The applicant’s ground of appeal (f) and DJAG’s ground of appeal (f) have
been made out.
A possible option in those circumstances is to refer the public interest
question to the IC for consideration according to law. Having regard to the
protracted nature of the proceedings, and the undisputed primary facts (as
distinct from questions of law) the better course is to consider for myself the
public interest factors and to re-exercise the IC’s discretion on that issue.
For the reasons set out above, I find the factors favouring nondisclosure in
the public interest of the documents in dispute to significantly outweigh
those favouring disclosure. Of those factors, the most important is the
public interest harm likely to arise from the loss of confidence in the judiciary
and interference with the proper administration of justice in Queensland
should the documents in dispute be made available. Without being specific,
it is difficult to accept that anything other than harm would be caused by
allowing into the public domain what could only be described as rancorous
exchanges between the then Chief Justice and other judges of the Supreme
Court. No educative function would be achieved. Such disclosure would
do nothing other than satisfy a prurient interest in what was an unfortunate
period in the Supreme Court’s history. It is now more than two and a half
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years since these events occurred and no useful purpose would be served
by reviving public interest in these matters at this time.
For the reasons otherwise set out above, in my re-exercise of the discretion
when weighing public interest benefit against public interest harm, I have
concluded that the public interest harm in the disclosure of the documents
in dispute far outweighs any benefit in their disclosure.
For the reasons set out above, the external review by the IC is based on a
number of errors of law and should be set aside. The orders which I make
are:
1. The appeal by the applicant and DJAG against the decision of the IC in
her external review is upheld.
2. The order of the IC of 27 June 2016 is set aside.
3. Access to the documents in dispute is refused.
4. The costs of the appeal are reserved, with liberty to the parties to apply
to the Tribunal on 28 days’ notice on the issue of costs.
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Official source: https://www.sclqld.org.au/caselaw/QCATA/2018/015