Carmody v Information Commissioner
[2018] QCATA 14
•2 March 2018
CITATION: | Carmody v Information Commissioner & Ors [2018] QCATA 14 |
PARTIES: | The Honourable Justice TF Carmody (Applicant) |
| v | |
| Information Commissioner (First Respondent) Alex McKean (Second Respondent) Department of Justice & Attorney General (Third Respondent) | |
APPLICATION NUMBER: | APL 241-16 |
PARTIES: | Department of Justice & Attorney General (Applicant) |
| v | |
| Information Commissioner (First Respondent) Alex McKean (Second Respondent) The Honourable Justice TF Carmody (Third Respondent) | |
APPLICATION NUMBER: | APL 249-16 |
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. 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) Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; 71 CLR 207 at 267 per Dixon J |
| APPEARANCES: APPLICANT: RESPONDENTS: | APL 241-16 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: | APL 249-16 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 |
REASONS FOR DECISION
Nature of Proceedings
The above matters were heard together. They are appeals pursuant to s 119 of the Right to Information Act2009 (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 application No 312516.
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:
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 31 March 2015, Mr McKean applied to DJAG under the RTI Act for access to information in the following terms:
“Subject matter of the documents the applicant is seeking:
(1) The Court of Disputed Returns (“the Court”);
(2) The constitution of the Court;
(3) The roster for selecting the Justice who would sit as the Court;
(4) Any change or proposal to change the roster or the roster system;
(5) Any proposal that the Chief Justice sit as the Court himself, or select who would sit as the Court;
(6) Any communication or attempted communication, with any Justice on the roster about their role, or anticipated role, sitting as the Court;
(7) The position of the Senior Judge Administrator (SJA);
(8) Any proposal to remove or attempt to remove the SJA;
(9) Any action taken to remove or attempt to remove the SJA.”
DJAG located 178 pages of responsive information, as well as an audio recording of a meeting that took place on 12 February 2015, between the applicant and two other judges. By decision dated 5 June 2015, Ms Edwards of DJAG decided to give full access to 75 pages, partial access to 12 pages and to refuse access to 91 pages. She also refused access to the audio recording.
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.
By application dated 9 June 2015, Mr McKean applied to DJAG for an internal review of Ms Edwards’ decision. He provided detailed submissions in support of disclosure of the information in issue.
The internal review was conducted by Ms Newick of DJAG. By decision dated 7 July 2015, Ms Newick decided to affirm Ms Edwards’ decision in terms of refusing access to the same information, although sometimes for different or additional reasons. In respect of the audio recording, Ms Newick decided that the conversation in question took place “in confidence” and that the audio recording was either exempt information under schedule 3, section 8 of the RTI Act (breach of confidence) or that its disclosure could reasonably be expected to cause public interest harm under schedule 4, part 4, item 8 (prejudice to the future supply of confidential information). She also decided that a public interest factor favouring nondisclosure of the audio recording was that disclosure of the recording was prohibited by an Act (schedule 4, part 3, item 22), namely, by s 45(1) of the Invasion of Privacy Act 1971 (Qld) (Invasion of Privacy Act).
On 7 July 2015, Mr McKean applied to the Office of the Information Commissioner (OIC) for external review of DJAG’s refusal to grant him access to the information in issue.
By letter dated 30 June 2015, the applicant applied to become a participant in this and a number of other external reviews that involved him. His application was granted and the IC advised that if any further applications for external review involving him were received by the OIC, she would allow him to participate. His participation in this review was confirmed on 27 July 2015.
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 decision 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 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 Mr McKean’s application under the RTI Act
The following matters, whilst not strictly proved by the adduction of evidence, were accepted by the parties as generally accurate.
Mr McKean’s application under the RTI Act was one of a 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 that the applicant held the position of Chief Justice. The applicant was appointed Chief Justice on 8 July 2014 and resigned as Chief Justice 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 [11] 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).
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 Mr McKean’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. Mr McKean 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 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 Mr McKean and the 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. 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 decision, dated 7 July 2015.
The documents which were 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:
“46 …It includes all or parts of notes and resolutions of meetings of the trial 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 applicant and Justices Byrne and Boddice. As noted, … 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:
“52 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.
53 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 ‘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.
54 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.
55 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.
56 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.
57 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).
58 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.
59 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.”
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
“60 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.
61 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
62 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.
63 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.
64 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 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.
65 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.
66 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.
67 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.
68 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.
Conclusion
69 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:
“77 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).
78 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.
79 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.
80 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:
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.
81 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.
82 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.
83 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
84 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.”
Relevantly at a later point in her review, the IC said:
“207 …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 in fact 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 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 FinancialAccountability 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 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 need 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]
[1] TCL Air Conditioner (Zhongshan) Co Ltdv Judges of the Federal Court of Australia & Anor [2013] HCA 5; 251 CLR 533 at [27], [100], [105].
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.”
[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.
This independence is constitutionally enshrined. The State of Queensland is obliged by the Constitution of Australia to maintain a Supreme Court capable of being invested with federal judicial power exercised by judges which are (and are seen to be) independent from the legislature and the executive.[4] 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.
[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.
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 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 and 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.
[5]487 F.2d 700, 740 (D.C. Cir. (1973).
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 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.
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.
[6] Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; 71 CLR 207 at 267 per Dixon J.
The above approach is supported by the observations of Applegarth J in Davis v City North Infrastructure Pty Ltd[7] 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.”
[7][2012] 2 Qd R 103 at [25].
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 Mr McKean 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 Act1954 (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 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.
[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].
[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].
Release of the audio recording is prohibited by the Invasion of Privacy Act 1971 (Qld)
[142]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.
[143]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.”
[144]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.
[145]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]
[146]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.
[147]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.
[148]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.
[149]The applicant’s ground of appeal 7 and DJAG’s ground of appeal 5 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.
[150]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.
[151]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).
[152]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.
[153]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.
[154]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 sufficient for the IC to say as she did at [228] 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.[20]
[20] 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]).
Disclosure will prejudice the ability to obtain confidential information and affect confidential communications
[155]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).
[156]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.
[157]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
[158]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”.
[159]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 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).
[160]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).
[161]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 [230] – [231] 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.
[162]The applicant’s ground of appeal f) and DJAG’s ground of appeal f) have been made out.
[163]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.
[164]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 years since these events occurred and no useful purpose would be served by reviving public interest in these matters at this time.
[165]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.
Conclusion and orders
[166]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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