ASD v Queensland Police Service [2013] QCATA 181

CITATION: ASD v Queensland Police Service [2013] QCATA 181 PARTIES: ASD (Appellant) V Queensland Police Service Office of the Information Commissioner Nine Network Australia Pty Ltd (Respondents) APPLICATION NUMBER: APL422-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon K Cullinane AM QC, Judicial Member DELIVERED ON: 4 June 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is granted. 2. The decision of 8 November 2012 is set aside. 3. The matter is remitted to the Office of the Information Commissioner to be dealt with by another Commissioner. CATCHWORDS: APPEAL – QUESTION OF LAW – GENERAL ADMINISTRATIVE REVIEW – RIGHT TO INFORMATION – DISCLOSURE DECISION – where application to Queensland Police Service for access to information about glassing incidents at licensed premises – where QPS granted partial access – where application to the Office of the Information Commissioner for external review of QPS decision – where objections to disclosure raised by appellant – where appellant contends disclosure would, on balance, be contrary to the public interest – where OIC set aside QPS decision – where appellant seeks to appeal that decision – whether OIC erred in its application of ss 47 and 49 of the Right -- 1 of 3 -- 2 to Information Act 2009 – whether appeal should be granted Liquor Act 1992 (Qld), s 48 Right to Information Act 2009 (Qld), s 3, s 6, s 47, s 49, s 119, Schedule 4 Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] This is an appeal pursuant to s 119 of the Right to Information Act 2009 (the Act). [2] The right of appeal is limited to a question of law. The principles relevant to such an appeal are found in cases such as Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320. [3] The relevant information relates to glassing incidents which occurred on licensed premises in Queensland between 2008 and 2010. [4] The appellant conducts a hotel business from one of the relevant licensed premises. The appellant objected to the disclosure and now appeals to the Tribunal against a decision of an Assistant Information Commissioner (the Commissioner) ordering disclosure delivered on 8 November 2012. [5] The appellant appeals against the decision on three grounds to which reference will shortly be made. [6] In its preamble and in the statement of its objects (s 3) and in chapter 3 part 5 of the Act emphasis is placed upon the right of a person to have access to government information. Section 47 provides for the refusal of access where (amongst other grounds) it would be contrary to the public interest to grant access. Section 49 provides for a balancing exercise to be undertaken to consider the question of public interest. Factors militating in favour of disclosure and against disclosure are set out in Schedules to the Act. [7] One of the grounds advanced against disclosure and by way of appeal concerns s 48 of the Liquor Act 1992 which prohibits the disclosure of information gathered in the course of administration of the Act. [8] Section 6 of the Act provides: ‘This Act overrides the provisions of other Acts prohibiting the disclosure of information (however obtained).’ -- 2 of 3 -- 3 [9] Part 3 of Schedule 4 to the Act sets out the factors favouring nondisclosure in the public interest. Item 22 provides: ‘Disclosure of the information is prohibited by an Act.’ [10] The appellant relied upon both the terms of s 48 and the factor in the schedule. [11] The Commissioner in paragraph 83 of the reasons dealt with this subject in the following way: Venue three submits that section 48 of the Liquor Act prohibits disclosure of the Information in Issue. However, section 6 of the RTI Act provides that the RTI Act overrides the provisions of other Acts prohibiting the disclosure of information. Accordingly, I find that the public interest fact in schedule 4, part 3, item 22 of the RTI Act does not apply in the circumstances of this external review. [12] In my view the Commissioner has erred in this approach. [13] The prohibition in s 47 does not have statutory effect as such because of the statutory override but its existence is a factor to be taken into account when conducting the balancing act for which s 49 provides when considering the factors in favour of nondisclosure in the public interest. [14] It is clear that the Commissioner did not do so. [15] The decision must be set aside and the matter remitted for further consideration. In these circumstances it is appropriate that I not comment on the other grounds of appeal. [16] I order that the decision of the Assistant Information Commissioner of 8 November 2012 be set aside. [17] The matter is remitted to be dealt with by another Commissioner in accordance with the terms of this decision. -- 3 of 3 --