O’Connor v Department of Child Safety, Seniors and Disability Services
[2024] QCATA 34
•27 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
O’Connor v Department of Child Safety, Seniors and Disability Services [2024] QCATA 34
PARTIES:
KAREN O’CONNOR (applicant/appellant)
v
DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (respondent)
APPLICATION NO/S:
APL322-23
MATTER TYPE:
Appeals
DELIVERED ON:
27 March 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
ORDERS:
1. The appeal is dismissed.
2. The decision of the Information Commissioner of 5 September 2023 is confirmed.
3. If the respondent wants to apply for an order for costs of the appeal, it must file submissions in writing in support of the order sought, and give a copy of them by email to each of the associate to the Deputy President of the Tribunal and the appellant, within 21 days from the date of this decision.
4. If no such submissions are filed, there will be no order as to costs of the appeal.
5. If such submissions are filed, the appellant may file any submissions in writing in opposition to such an order, and give a copy by email to each of the associate to the Deputy President and the lawyer for the respondent, within 21 days of the receipt of such submissions.
6. If submissions as to costs are filed, the question of costs will be decided by the Appeal Tribunal without an oral hearing, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32.
7. Liberty to apply as to costs.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – Appeal on a question of law only – whether appellant raising any question of law in decision appealed from – appeal dismissed
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal from Information Commissioner – orders sought not within power of Tribunal – appeal dismissed
Information Privacy Act 2009 (Qld) s 132.
Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52
Allen v Queensland Building Services Authority [2024] QCA 24
Horrocks v Department of Justice [2012] VCAT 241
Lawrence v Queensland Police Service [2022] QCATA 134
Maksymiuk v Savage [2015] QCA 177
Pivovarova v Michelsen (2019) 2 QR 508
Powell v Queensland University of Technology [2018] 2 Qd R 234
Sibelco v Right to Information Commissioner [2017] QCATA 59
XYZ v Victoria Police [2010] VCAT 255
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
Self-represented
Respondent:
J Sproule, instructed by the Crown Solicitor
REASONS FOR DECISION
In February, March and April 2023 the appellant made four requests for disclosure to her by the respondent of certain categories of documents containing references to her, under the Information Privacy Act 2009 (Qld) (“the IP Act”).[1] Decisions were made on the requests, and in each case the respondent disclosed some documents, and parts of some documents, but refused to disclose some documents, and parts of some documents. The appellant sought external review of those decisions by the Information Commissioner, all of which were dealt with together by the Commissioner by a decision dated 5 September 2023, by which each of the decisions of the respondent was confirmed, on the ground that the information not released comprised exempt information.[2]
[1]For convenience I shall refer to Ms O’Connor as the appellant and to the Department of Child Safety, Seniors and Disability services as the respondent. Prior to May 2023, the respondent was called the Department of Children, Youth Justice and Multicultural Affairs.
[2]In the course of the proceeding before the Information Commissioner, some additional information was released to the appellant. The confirmed decision related to the information still in dispute.
Appeal to the Appeal Tribunal
On 25 September 2023 the appellant filed an Application for Leave to Appeal and Appeal in the Tribunal, by which she purported to appeal from the decisions of the respondent. By the IP Act s 132 the appellant has a right to appeal to the Appeal Tribunal from the decision of the Commissioner, but only on a question of law. The review by the Commissioner is a full merits review, but there is no appeal to the Tribunal from the decision of the Commissioner on a question of fact, or on a question of mixed fact and law. It follows that the appeal is in the nature of judicial review.[3] The appeal must be “on” a question of law, not just involve a question of law.[4] If the appellant does show an error of law by the Commissioner, the remedy is to refer the matter back to the Commissioner, unless as a matter of law only one decision is open.[5]
[3]Powell v Queensland University of Technology [2018] 2 Qd R 234 at [44], [55].
[4]Allen v Queensland Building Services Authority [2024] QCA 24 at [19].
[5]Powell (supra); Pivovarova v Michelsen (2019) 2 QR 508 at [9].
The IP Act does not provide for an appeal to the Appeal Tribunal from the reviewable decision, that is, from the decisions of the respondent. Evidently the appellant’s application has been treated as an appeal from the decision of the Information Commissioner, which is subject to the constraints I have just mentioned. At the first directions hearing, the appellant was legally represented, but it appears that she has otherwise been without legal representation. At a further directions hearing on 30 January 2024, when the appellant appeared in person, the President of the Tribunal explained that a number of orders sought by the appellant in her Application the Tribunal did not have power to make in this proceeding.
One issue which arises from that hearing is whether the appeal is under the IP Act, or under the Right to Information Act 2009 (Qld) (“the RTI Act”), or both. Counsel for the respondent suggested at the directions hearing that the appeal was under both Acts, although the Information Commissioner had dealt with the external review on the basis that it was the IP Act which was applicable. The form used for an application is the same for both Acts, but an applicant is asked (in effect) to identify which Act the application was made under, since there is no fee payable for an application under the IP Act, but there is a fee payable for an application under the RTI Act. In the present matter, the appeal record does not contain copies of any such form, but in each case the letter by the respondent responding to the application described it as an application under the IP Act. That is consistent with the approach of the Information Commissioner, and in the circumstances I consider that the applicable Act is the IP Act.[6]
[6]Provisions of the IP Act make certain provisions of the RTI Act applicable for a request for disclosure under the IP Act.
One other preliminary matter I will mention. In principle when an appeal is only on a question of law, the appellant should identify the question or questions of law the subject of the appeal.[7] Where the appellant is a litigant in person, it is unrealistic to expect her to be able to formulate properly a question of law, but the Tribunal cannot give a party legal advice. It is sometimes possible to identify a question of law in the grounds raised by an appellant litigant in person, or in submissions in support of the appeal, but I consider it is not open for the Tribunal to identify some other question of law, and decide the appeal on that basis, particularly if the ground has not been dealt with by the respondent in submissions.
[7]Maksymiuk v Savage [2015] QCA 177 at [5].
Background
The appellant has over some years been concerned about the welfare of a particular child, and has reported concerns about the child to the respondent on a number of occasions. Because of the involvement of a child, I will not enlarge on this aspect, the details of which are presently irrelevant, except that it has given rise to some conflict between the appellant and the respondent. There have been other proceedings involving the appellant, sometimes also involving the respondent.[8]
[8]The appellant and the respondent were also parties to APL219/23, the reasons in which are not available.
In the Application for Appeal, when supposedly setting out the grounds of appeal, the appellant complained about the release of her identity as a notifier of harm to the child by the respondent in the context of certain court proceedings. The only relevance of that in the present context is that one of the requests for information was for documents referring to the appellant in relation to that proceeding. The appellant claims that the release of this information to the court was in breach of her human rights, but any breach by the respondent is irrelevant to the present proceedings. If there was a breach by the commissioner of the Human Rights Act 2019 (Qld) that may give rise to a question of law, but in circumstances where the Commissioner conducted a merits review of the applications for disclosure, any breach by the respondent is irrelevant. There is nothing to indicate that there was any breach of the Human Rights Act on the part of the Commissioner.[9]
[9]There have been a number of decisions that the IP Act (and the RTI Act) provide a system of disclose of information which is consistent with the Human Rights Act. See XYZ v Victoria Police [2010] VCAT 255 at [573]; Horrocks v Department of Justice [2012] VCAT 241 at [111]; Lawrence v Queensland Police Service [2022] QCATA 134 at [23].
The appellant also claimed that the respondent had breached provisions of the Child Protection Act 1999 (Qld) in making that notification. Again, that is not an issue which arises directly in this proceeding. What matters in this appeal is whether the Commissioner has complied with the provisions of the IP Act, not whether the respondent has complied with the provisions of some other Act.
As well, most of the orders sought in the Application for Appeal are orders the Tribunal has no power to make, as the President explained at the directions hearing. All the Tribunal can do in this proceeding, if the appellant can show an error of law by the Commissioner, is to set aside that decision and remit the matter to the Commissioner, unless as a matter of law the proper application of the IP Act would result in a specific, different decision.
Consideration
The appellant filed submissions in writing for the appeal on 13 December 2023, in which she set out five orders sought, as follows:
1. A merit review on application and evidence submitted in appeal APL322-23 including paper evidence submitted in appeal APL219-23.
2. An order for Child Safety to release as evidence the application submitted to Federal Circuit Court between 2017 and 2020 who did not notify me of this application to prohibit me from reporting child abuse in a court of law breaching my human rights.[10]
3. An order for the Department of Child Safety to investigate the perpetrator with evidence I have provided from 2019 to protect a child with integrity.
4. The Department of Child Safety executives justify how I am of public interest for wanting [the child] to be to be safe from [certain people] physical, psychological, emotional, abuse and neglect.
5. Such further or other orders as the Appeal Tribunal deems appropriate.
[10]This makes a little more sense if one reads it as if it had a comma after “2020”, and after the word “application” in the second line, and before the word “breaching”.
As to the first, the jurisdiction of the Tribunal on an appeal from the Information Commissioner under the IP Act s 132 is to determine questions of law only. There is no jurisdiction to conduct a merits review. The Tribunal cannot interfere with the decision of the Commissioner unless the appellant can show that the decision of the Commissioner involved an error of law which affected, or could have affected, that decision. It has no jurisdiction to conduct a merits review of that decision, let alone any decision of anyone else, such as the respondent.
As well, the capacity to admit further evidence on such an appeal is quite limited, because of the limited nature of the appeal. Thomas J, then President of the Tribunal, said in Sibelco v Right to Information Commissioner [2017] QCATA 59, at [23]:
The inclusion of section 119(5) allows the Appeal Tribunal to have reference to evidence or arguments, which may not have been before the Information Commissioner, in determining whether there is any error of law in the decision by the Information Commissioner.
It does not follow that there is an unrestricted right to advance additional evidence or new arguments on appeal. In Adani Mining Pty Ltd v Information Commissioner [2020] QCATA 52 I referred to this passage at [26], and said at [27] that the evidence which was admissible on this basis was evidence which would show an error of law in the decision. This follows from the fact that the appeal is limited to one on a question of law only. For example, evidence could be put before the Tribunal to show that there was a breach of the rules of natural justice by the Commissioner, but that is not what is alleged here. Evidence which is relevant only to the decision of the Commissioner on a question of fact cannot be relevant to the outcome of an appeal, because it will not be relevant to a question of law.
There is no basis therefore on which I can look at the evidence filed in relation to another appeal, or indeed any material not before the Commissioner, unless the appellant can show that it is relevant to a question of law, and specifically one that arises from the decision of the Commissioner. Nothing in the appellant’s submissions show that any of it is relevant in that way, so generally I have not looked at it. The first order sought cannot be made.
The second order sought is also misconceived, because there is no jurisdiction on an appeal under the IP Act s 132 to make any order such as that against the respondent. In addition, the order sought is strange, in view of the submissions in support of it, which refer to a particular proceeding in the Federal Circuit Court. The material filed with those submissions includes part of the reasons for decision of that court in the proceeding identified. Those reasons reveal that the appellant and her husband had applied to intervene in that proceeding, and in support of that application had put before the Court quite a bit of evidence by them about the abuse they complained of. According to those reasons, the Judge hearing that application, which was dismissed, thought that, taken at face value, that evidence did not amount to what would be classified as an unacceptable risk.
That material on its face seems to me to be completely inconsistent with the idea that the respondent obtained from the Federal Circuit Court, ex parte, an order prohibiting the appellant from reporting child abuse in that Court. But even if such a thing could be possible, it has nothing whatever to do with any question of law arising out of the decision of the Commissioner. Such an order cannot be made.
The same applies to the third order sought. The Appeal Tribunal, on an appeal under the IP Act s 132, has no power to order the respondent to investigate anything of such a nature. These proceedings are not a review of a decision by the respondent not to investigate the perpetrator. To seek such relief shows that the appellant has completely misconceived the function of the Tribunal on an appeal under the IP Act.
I really cannot understand the fourth order sought, although it is clear that it is not one that the Tribunal has power to make in this proceeding. Its terms suggest that the appellant has made no attempt to address the sort of issues which can be properly considered on an appeal from a decision of the Information Commissioner under the IP Act. The appellant is simply attempting to use this proceeding to pursue, in another way, her broader dispute with the respondent. That is also shown by the eight complaints made in the appellant’s written submissions under the heading: “It is a question of law”. None of them identifies a relevant question of law.
The appellant filed what are said to be submissions in reply on 30 January 2024. Most of this document contains irrelevant detail about the appellant’s history of her involvement with the respondent and the child, and related matters. Part of it is incomprehensible, and none of it is relevant. None of it even attempts to identify any error of law on the part of the Information Commissioner.
There is nothing in the appellant’s written submissions which identifies any relevant question of law. The appeal is misconceived. I have read the reasons for decision of the Information Commissioner, and they do not reveal any obvious error of law. The appeal is dismissed. I will give directions as to any application for costs of the appeal, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 or s 102.
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