BL v Office of the Information Commissioner, Department of Communities
[2012] QCATA 149
•22 August 2012
| CITATION: | BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 |
| PARTIES: | BL |
| v | |
| Office of the Information Commissioner, Department of Communities |
| APPLICATION NUMBER: | APL013-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon Kerry Cullinane AM QC, Member |
| DELIVERED ON: | 22 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | Appeal against decision of Commissioner to refuse access to adoption records showing the name of an adoptee’s birth father – prohibition relied on by Commissioner different to that of the Department – no available action for discrimination – no inconsistency between State and Commonwealth legislation – no failure to serve Attorneys-General – no error of law Adoption Act 2009, s 314 Osland v Sec Dept of Justice (No 2) (2010) 241 CLR 320 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an appeal pursuant to s 119 of the Right to Information Act 2009 (the Act) against a decision of the Assistant Information Commissioner (the Commissioner) affirming the decision of the Department refusing access by the Appellant to certain information, the nature of which appears in these reasons a little later.
Section 119 provides for a limited right of appeal:
(1) A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.
(2) The appeal may only be on a question of law.
(3) The notice of appeal must, unless the tribunal orders otherwise –
(a) Be filed in QCAT’s registry within 20 business days after the date of the decision appealed from; and
(b) Be served as soon as possible on all participants in the external review.
(4) The appeal tribunal-
(a) Has jurisdiction to hear and decide the appeal; and
(b) Must be constituted by 1 judicial member.
(5) The appeal may only be by way of a rehearing.
The jurisdiction of the Tribunal is original and the proceedings are in the nature of judicial review: see Osland v Sec Dept of Justice (No 2) (2010) 241 CLR 320.
The appellant is an adoptee. In early December 2010 she sought information about her birth parents from the Department under the Act. The Adoption Act 2009 provides for access by an adoptee to information of the kind which the Appellant sought subject to some exceptions. The Department refused access to certain information, namely, the name of her birth father as provided by her birth mother. The Commissioner on external review upheld this refusal but on different grounds. This matter is the subject of one of the grounds of appeal and is dealt with a little later.
Section 23 of the Act provides:
(1) Subject to this Act, a person has a right to be given access under the Act to –
(a) Documents of an agency; and
(b) Documents of a Minister.
(2) Subsection (1) applies to documents even if they came into existence before the commencement of this Act.
Section 6 of the Act provides:
This Act overrides the provisions of the other Acts prohibiting the disclosure of information (however described).
In this case, the prohibition relied upon by the Department and on external review the Commissioner is found in the Act itself. The prohibition relied upon by the Commissioner is different to that relied upon by the Department although the Commissioner thought that the Department was justified in the findings made by it.
Part 5 of Division 4 of Chapter 3 of the Act commences with s 44 which provides for a pro-disclosure bias when deciding access applications.
The circumstances in which access may be refused are dealt with in sections 47, 48 and 49 and Schedules 3 and 4 to the Act.
Section 47 provides:
(1) This section sets out grounds on which access may be refused.
(2) It is Parliament’s intention that
(a) the grounds are to be interpreted narrowly; and
(b) an agency or minister may give access to a document even if a ground on which access may be refused applies.
(3) On an application, an agency may refuse access to a document of the agency and a minister may refuse access to a document of the Minister-
(a) to the extent the document comprises exempt information under section 48; or
(b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; or
(c) to the extent the document is sought under an application by or for a child and comprises the child’s personal information the disclosure of which would not be in the child’s best interests under section 50; or
(d) to the extent the document comprises an applicant’s relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; or
(e) because the document is non-existent or unlocatable as mentioned in section 52; or
(f) because other access to the document is available as mentioned in section 53
In this section-
Child means an individual who is under 18 years.
Section 48 provides:
(1) If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
(2) Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest.
(3) However, despite an agency or minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access.
(4) In this Act-
Exempt information means the information that is exempt information under schedule 3.
Section 49 provides:
(1) If an access application is made to an agency or minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
(2) This section sets out the steps, and , in schedule 4, factors, the Parliament considers appropriate for deciding, for types of information (other than exempt information),whether disclosure would, on balance, be contrary to the public interest.
(3) If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the public interest, the agency or minister must undertake the following steps-
(4)
(a) identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information (an irrelevant factor);
(b) identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including any factor mentioned in schedule 4, part 2:
(c) identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including any factor mentioned in schedule 4, part 3 or 4:
(d) disregard any irrelevant factor;
(e) having regard to subsection (4), balance any relevant factor or factors favouring disclosure against any relevant factor or factors favouring nondisclosure;
(f) decide whether, on balance, disclosure of the information would be contrary to the public interest;
(g) unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act.
(5) The factors mentioned in schedule 4 part 4 are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.
(6) However, despite an agency or Minister being able, under section 47(3)(b), to refuse access to all or part of a document, the agency or Minister may decide to give access.
Section 49 provides for a process of evaluation and balancing of factors when considering whether disclosure would be in the public interest. (It is to be noted that the discretions to allow access found in s 48(3) and s 49(6) of the Act are not, where access has been refused, not available to the Commissioner on external review: see s 105(2) of the Act.)
The Commissioner considered that the Department had correctly carried out the exercise provided for in s 49 and was entitled to refuse the application on the basis provided for in that section.
However, the Commissioner held that the appropriate way to deal with the matter was to consider firstly whether the information was exempt information, and if it was not, to proceed to consider the question whether disclosure would on balance be contrary to the public interest. I accept that this is the logical way to approach the issues raised in this case as if the information is exempt information that disposes of the matter and the exercise provided for in s 49 is unnecessary.
I do not mean by this that those faced with this issue are by law constrained to deal with the matter in this way, nor do I understand the Commissioner to mean this. Rather, considerations of the scheme of the Act and a logical approach to the matter support this approach.
In her notice of appeal the appellant contends that the Commissioner was not legally entitled to substitute the basis for her finding for that of the Department. However, the provisions of ss 110 and 105(1)(b) plainly confer this power. In any case the Commissioner confirmed (correctly in my view) the Department’s findings in this regard.
Schedule 3 of the Act, which defines exempt information, contains s 12 which provides as so far as is relevant:
(1) Information is exempt information if its disclosure is prohibited by 1 of the following provisions-
Adoption of Children Act 2009 section 314
(2) Information is not exempt information under subsection (1) in relation to an access application if it is personal information for the applicant.
The exemption in sub-section 2 cannot be satisfied by information which discloses the identity of the birth father of the appellant. The expression is a somewhat awkward one but in my view has no application to the information under consideration here.
As can be seen, s 12 of schedule 3 to the Act provides that information is exempt information if its disclosure is prohibited by s 314 of the Adoption Act 2009.
Section 314 provides:
(1) This section applies to a person who-
(a) Is, or has been , any of the following persons performing functions under or relating to the administration of this Act or the repealed Act-
(i) a public service employee;
(ii) an adoption contract worker, counsellor or other person engaged by the chief executive;
(iii) an approved carer;
(iv) an appropriate Aboriginal or Torres strait Islander person;
(v) a recognised entity or member of a recognised entity;
(vi) a person authorised to use information for research under section 324 ;and
(b) in that capacity, acquired protected information about another person or has access to, or custody of, protected information about another person.
(2) The person must not use the information or disclose the information to anyone else except to the extent the use or disclosure is required or permitted under this Act or necessary to perform the person’s functions under or relating to this Act.
Maximum penalty 100 penalty units or 2 years imprisonment.
(3) The information may be used or disclosed if the use or disclosure is otherwise required or permitted under another law.
(4) To the extent that the information is about a person (the relevant person), it may be disclosed to the relevant person or to someone else with the relevant person’s consent.
(5) However, if the information is information that may be requested from the chief executive by the relevant person under part 11, subsection (4) applies to the disclosure of information by or on behalf of the chief executive only to the extent the information may be disclosed under that part.
(6) To the extent the chief executive is satisfied it would not be an unreasonable breach of privacy, the chief executive may disclose-
(a) non-identifying information about an adopted person, adoptive parent or other relative of an adopted person to a birth parent of the adopted person; or
(b) non-identifying information about a birth parent of an adopted person or relative of the birth parent to the adopted person or an adoptive parent of the adopted person.
(7) The chief executive may disclose information about a person to the police commissioner or public trustee if satisfied the disclosure-
(a) is for a reasonable purpose in the circumstances; and
(b) is not likely to allow the identification of a party to an adoption by another party to the adoption.
(8) Information about a person who has a current expression of interest made jointly with the person’s spouse, or is being assessed under part 6 jointly with the person’s spouse , may be disclosed to the person’s spouse.
(9) A reference in subsection (1)(a)(ii) to a person engaged by the chief executive includes an employee or contractor of a person engaged by the chief executive.
(10) In this section-
disclose includes give access to.
Information includes a document
Protected information, about a person, means information about the person’s personal history or the person’s affairs.Information falls within the prohibition in section 314 if it is protected information (as that term is defined in s 314(10)), if it was acquired in the circumstances provided for or there is access to or custody of such information in circumstances which meet the requirements of s 314(1) and the exceptions in sub-ss (3) and (4) do not apply.
I agree with the finding of the Commissioner that this information falls within s 314.
The appellant has raised a number of matters in her notice of appeal. Some of these assert an error of law in relation to certain findings without specifying the error alleged.
I have already dealt with the claim that there was no power on the part of the Commissioner to make a finding on a different ground to that made by the Department.
I also reject the claim that the Commissioner misinterpreted the provisions of the two Acts and/or their relationship to each other.
The appellant raised two provisions of the Constitution.
The first of these concerns the Family Law Act 1975 (Cth). It is said that s 109 of the Constitution has the effect of overriding the provisions of the two Acts under consideration here because provisions of the Family Law Act 1975 conferring power to order paternity tests are inconsistent with the legislation prohibiting access to information about paternity in these Acts.
The power of the Family Court to make such an order is contained in s 69W of the Family Law Act 1975 and is exercisable where the parentage of the child is in issue in proceedings under the Act. This is of course not the case here.
Moreover, the State and Commonwealth legislation here deal with entirely different subjects. The test for s 109 in Telstra v Worthing (1999) 197 CLR 61 could not be satisfied.
Similarly the argument based on section 117 cannot be accepted. In Street v Qld Bar Association (1989) 168 CLR 461 the High Court stated the effect of this provision. An interstate resident is protected from the operation of a law whether the effect of the law is to subject an interstate resident to a disability or discrimination to which that person would not be subject to as an intrastate resident: see Toohey J page 559 .
The relevant legislation in other States confers greater rights on a person in the appellant’s position but this cannot be the basis of a claim based on s 117.
The Appellant also raises the Anti-Discrimination Act 1991. However it is in my view impossible to identify any discrimination which falls within that Act.
Finally the appellant refers to a failure to serve the Attorneys-General of the Commonwealth and States given the constitutional issues raised. However s 78B(1) of the Judiciary Act 1903 (Cth) as amended is applicable where there is a cause pending in the Federal Court or the Court of a State or Territory.
The appellant has not made out an error of law.
The appeal is dismissed.