Minogue v Office of the Information Commissioner Queensland
[2012] QCATA 191
•5 March 2012
| CITATION: | Minogue v Office of the Information Commissioner Queensland and Anor [2012] QCATA 191 |
| PARTIES: | Peter James Minogue (Applicant) |
| v | |
| Office of the Information Commissioner (First Respondent) Queensland Health (Second Respondent) |
| APPLICATION NUMBER: | APL071-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 5 March 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | Hon Kerry Cullinane AM QC, Member |
| DELIVERED ON: | 5 March 2012 |
| DELIVERED AT: | Townsville, ex tempore |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – DECISION OF INFORMATION COMMISSIONER ON QUESTION OF LAW – Contrary to public interest to deny access – finding by Commissioner that information exempt because obtained, used or prepared for investigation of crime – finding by Commissioner that document not about applicant – No evidence that finding incorrect – No issue of law Right to Information Act 2009, ss 48, 119, Sched 3, s 10 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Peter James Minogue self represented |
| RESPONDENT: | First respondent filed a submitting appearance A D Scott for Queensland Health instructed by the Crown Solicitor for the second respondent |
REASONS FOR DECISION
This is an appeal pursuant to the provisions of section 119 of the Right to Information Act 2009 as amended. That section confers upon a person in Mr Minogue’s position a right to appeal to the tribunal. The appeal, however, may only be on a question of law. The jurisdiction which the court exercises is original jurisdiction and is by way of a review, or re-hearing. The provision enables the tribunal to examine the findings of the second respondent for legal error, which affects the decision appealed from. The facts of the matter are set out in the second respondent’s decision and it is not necessary for them to be further canvassed here, beyond saying that they arise out of the applicant’s complaints about a number of persons. The matter has been the subject of an internal review, following the original determinations and, then, by an external review by the Information Commissioner’s delegate and the matter comes, then, to this tribunal, but only, as I have said, on a point of law.
It is not easy to see what the point of law is, that is, to identify a point of law. Mr Minogue, in a further outline handed to the tribunal today, raises a number of matters under the heading ‘The Appeal in Relation to a Question of Law’. In summary, it can be said that he contends that it is contrary to the public interest to deny him access to the relevant documents and that, given the clearly expressed philosophy of the legislature in the Right to Information Act 2009, that there should be access, and this court should take the view that, in concluding that access should be denied, the second respondent fell into error of one kind or another. I should add that, before me today, I was handed a document which I marked exhibit 1. That is a letter from the first respondent to Mr Minogue. The second paragraph refers to “allegations relating to you”, and goes on to say that, “You were provided an opportunity to respond to those allegations during the investigation processes.”
No material was placed before me which elaborates upon this, although I was told from the bar table that this was an error and that Mr Minogue has since been notified of it. Certainly, there is no material before the tribunal which would provide any support for this. Its relevance is that, as Mr Minogue said, if the documents refer to allegations made against him, then there is no reason why these should not fall into the non-exempt category. He made a similar, more general submission, that it is likely, in the course of the extensive material, for some references to be made to him, which would require there to be some discrimination between what material was withheld and what material was disclosed. Again, however, there is no evidence of this before me, which would raise any question about the correctness of the Information Commissioner’s finding.
I should add that the relevant material has been forwarded to the tribunal and I have had the chance of reading it. A question arose, in the course of the argument, as to whether, if there was an erroneous finding, that the document does not contain information about the applicant – and I speak here of either wholly or partly – whether this involved an error of law. I have already referred to the more general error of law which, it is said by Mr Minogue, arises. The relevant considerations which the Commissioner was faced with are contained in section 10 of Schedule 3, to the Right to Information Act 2009.
Before referring to that in a little more detail, I should refer to the provisions of section 48, which makes it clear that, notwithstanding the general underlying philosophy and favour of disclosure, the disclosure might be refused if, on balance, it is considered contrary to the public interest.
The legislation provides, in subsection (2) of section 48, that 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. There is no general power, on the part of the tribunal, to dispense with these matters. Section 10 of Schedule 3 provides for exempt information. Subsection (4) provides that information is exempt if it consists of information obtained, used or prepared for investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body. Mr Minogue was not inclined to challenge that these matters were established here. The findings of the Information Commissioner, in this regard, are not, in my view, controversial. There is a qualification contained in subsection (6), which provides that information is not exempt information under subsection (4) if, firstly, it consists of information about the applicant; and secondly, the investigation has been finalised.
It is clear that the investigation has been finalised and, again, Mr Minogue accepted that. The argument, ultimately, focused on the question of whether the document, as a whole, can be described as consisting of information about the applicant. More precisely, it is whether, in making the finding, that some error of law was made by the Commissioner. There was some debate before me, as to whether, if the second respondent made such a finding without evidence, or in the face of incontrovertible evidence to the contrary, this was a question of fact or a question of law. I was referred to cases such as Hope v Bathurst City Council (1980) 144 CLR 17 and also cases such as the National Railways Commission v The Collector of Customs (1992) 35 FCR 371. Some of the passages would provide support for that proposition.
On the other hand, in the Federal Commissioner of Taxation v Broken Hill South (1941) 65 CLR 150 and the judgment of Williams J, it was said that where there is an ordinary English expression used in an Act, the meaning of that is one of fact, and the question whether the fact is proved in evidence come within the expression, is also one of fact. I should add that the passage which I referred to earlier is contained in the judgment of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, and the reference is made to there being a qualification to the principle expressed in the cases so referred to at pages 287 and 288. Where the statute uses words according to their ordinary meaning, and the question is whether the facts as found fall within those words, it is said, in those circumstances, the question is one of fact.
On that basis, Mr Minogue is faced with the obstacle that, however wrong the decision might have been – and I accept this for present purposes – it would not help him as no point of law arises. These matters have been raised by Mr Minogue. There was no evidence before the Commissioner and, taking into account that additional material, before this tribunal which would justify the granting of the appeal.
The result will be that the appeal is dismissed.
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