Secretary to the Department of Justice v Western Suburbs Legal Service Inc
[2009] VSC 68
•3 March 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7432 of 2008
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Applicant |
| v | |
| WESTERN SUBURBS LEGAL SERVICE INC | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2009 | |
DATE OF JUDGMENT: | 3 March 2009 | |
CASE MAY BE CITED AS: | Secretary to the Department of Justice v Western Suburbs Legal Service Inc | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 68 | |
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ADMINISTRATIVE LAW – Freedom of Information – Exempt document – Exemption based on secrecy provision in another statute – Freedom of Information Act 1982 ss 38 and 50(4) – Corrections Act 1986 ss 17 and 30.
APPEAL – Appeal from Victorian Civil and Administrative Tribunal – Leave to appeal - Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P.J. Hanks QC with Ms M.J. Richards | FOI Solutions |
| For the Respondent | Mr T.V. Hurley | Corrs Chambers Westgarth |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
The proceeding below....................................................................................................................... 3
Section 38 of the FOI Act.................................................................................................................. 3
Section 30 of the Corrections Act 1986........................................................................................... 4
Is the application for leave/ the appeal “hypothetical or moot”?............................................. 6
The proper construction of s 38 of the FOI Act............................................................................ 9
The proper construction of s 30 of the Corrections Act............................................................ 12
The application for leave to appeal.............................................................................................. 16
Disposition of the appeal............................................................................................................... 17
Conclusion......................................................................................................................................... 18
HIS HONOUR:
Introduction
Western Suburbs Legal Service Inc (“the Service”) made application under the Freedom of Information Act 1982 (“the FOI Act”) for access to thematic and systemic reviews, investigations and audits undertaken by the former Corrections Inspectorate from July 2003. The Department of Justice, the Secretary to which is the applicant in this proceeding, denied access to a report (“the report”) dated September/October 2004 by the Corrections Inspectorate[1] entitled “Review of the Administration of Separation Orders – High Security and Maintenance Units”. The report was delivered to the Secretary in February 2005. It was created as a result of inspections at three prisons and concerns the administration of separation orders[2].
[1]The Corrections Inspectorate, now known as the Office of Correctional Services Review is a body within the Department of Justice whose role it is to oversee the corrections system on behalf of the Department. That role includes being responsible for the conduct of reviews and investigations into the delivery of correctional services on behalf of the Secretary and the Minister for Corrections.
[2]Separation orders are a type of measure taken to separate a prisoner from the “mainstream”. They are orders that are required for the placement of a prisoner in a management or high security unit.
The service’s application for a review of the decision denying access to the report was upheld by the Victorian Civil and Administrative Tribunal on 25 June 2008. The Tribunal ordered[3] the report to be released to the Service.
[3]Subject to the parties having liberty to apply in relation to the deletion of material in the report exempt under s 33 of the FOI Act.
In this proceeding the applicant seeks leave pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) to appeal from the order made by the Tribunal. On 22 August 2008 Master Daly[4] ordered pursuant to r 4.14(3) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2008 that the application for leave be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal. For the reasons given below there will be a grant of leave to appeal, the appeal will be allowed and the matter will be remitted to the Tribunal for reconsideration in accordance with these reasons.
[4]As her Honour then was.
The proceeding below
Initially, access to the report was denied on the basis that the report was exempt from disclosure under ss 30(1), 31(1)(a), 33 and 38 of the FOI Act. Further, the Department contended that the public interest did not require release of the document under s 50(4) of the FOI Act. However, at first instance only ss 30(1) and 38 were relied upon in an attempt to show that the document was an exempt document.
The Tribunal found against the Department in relation to both s 30(1) and s 38 of the FOI Act. As a result of its findings the Tribunal did not have to consider the operation of s 50(4). In this proceeding the Secretary does not seek to challenge the Tribunal’s findings concerning s 30(1). This proceeding relates to the Tribunal’s conclusions in respect of s 38 of the FOI Act.
Section 38 of the FOI Act
Section 38 of the FOI Act provides:
“38Documents to which secrecy provisions of enactments apply
A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.”
From the text of s 38 it can be seen that in order for a document to be an exempt document three conditions must be satisfied:
(a)first, there is in force an enactment;
(b)secondly, the enactment applies specifically to information of a kind contained in the document; and
(c)thirdly, the enactment prohibits persons referred to in the enactment from disclosing information of that kind (either absolutely or subject to exceptions or qualifications).
The Service submits that s 38, in order to make a document an exempt document, requires the enactment to prohibit the person in possession of the document[5] from disclosing the information contained in the document. This submission was made by the Service to the Tribunal and accepted by the Tribunal. In this proceeding the Secretary contends that in upholding this submission the Tribunal erred in law.
Section 30 of the Corrections Act 1986
[5]Or perhaps equally the person to whom the document was addressed or provided.
The only statutory provision that is capable of being an enactment of the kind referred to in s 38 of the FOI Act (so as to make the report an exempt document) is s 30 of the Corrections Act 1986. Section 30 relevantly provides:
“30Secrecy
(1) In this section—
confidential information means—
(a)information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988; or
(b)information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board; or
(c)information given to an official visitor as an official visitor; or
(d)information relating to the personal affairs of a prisoner; or
(e)information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or
(f)information concerning the management of, or the operation of security measures in, or in relation to, a prison; or
(g)information concerning the investigation of a breach or possible breach of the law by—
(i)a prisoner; or
(ii)an officer within the meaning of Part 5; or
(iii)a person authorised under section 9A to exercise a function or power; or
(h)information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court; or
(i)information of a business, commercial or financial nature relating to—
(i)the provision of services referred to in section 8B(1) or 9(1); or
(ii)an agreement entered into under section 8B(1) or 9(1) or a sub-contract agreement under that agreement;
information includes photographs, fingerprints, samples and results of tests;
information relating to the personal affairs of a prisoner includes information—
(a)that identifies the prisoner or discloses his or her address or location; or
(b)from which any other person's identity, address or location can reasonably be determined—
but does not include information that is in the public domain;
position means any of the following—
(a)a position as an officer within the meaning of Part 5;
(b)a delegate of the Secretary or a Governor;
(c)a person authorized to exercise the functions or powers of a prison officer or a medical officer;
(d)a position of being a person authorised under section 9A to exercise functions or powers.
(2)A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information.
Penalty:5 penalty units.
(3)Subsection (2) does not prevent a person from—
(a)…
(b)…
(c)…
(d)…
(daa)…
(da)disclosing information under section 30A; or
(db)…
(dc)…
(dd)disclosing information under section 104Y, 104Z or 104ZA; or
(e)…
(4)…
(5)… ”
Building on the submission referred to in paragraph 8, the Service submitted to the Tribunal (and the Tribunal accepted) that the Secretary was not a person to whom s 30 of the Corrections Act applied. It was submitted by the Service (and again accepted by the Tribunal) that the Secretary did not hold (and had not held) a “position” within the meaning of s 30 of the Corrections Act. Consistent with its submission as to the proper construction of s 38 of the FOI Act, the Secretary contends that the question of whether the Secretary holds (or has held) a position within the meaning of s 30 of the Corrections Act is irrelevant. As a subsidiary position the Secretary contends that if the issue of position is relevant then the Secretary holds (and has held) a relevant position within the meaning of s 30.
Section 30(2) of the Corrections Act prohibits the disclosure of “confidential information” as defined in s 30(1). The relevant paragraph of the definition of “confidential information” is paragraph (f) being “information concerning the management of, or the operation of security measures in, or in relation to, a prison”[6]. In resisting the Secretary’s application for leave to appeal, the Service submitted that the Tribunal found that the report did not contain any confidential information as defined: that is, it does not contain “information concerning the management of, or the operation of security measures in, or in relation to, a prison”. The Service then submitted that any appeal is “merely hypothetical or moot”[7] because any error in the proper construction or operation of s 38 of the FOI Act or s 30 of the Corrections Act would not be determinative of the Service’s application for access to the report. The Service contended that the Tribunal determined the factual question of whether the report contains confidential information against the Department and therefore any error of law was irrelevant to the outcome of the case.
[6]Paragraph (d) of the definition of “confidential information” (“information relating to the personal affairs of a prisoner”) was made irrelevant before the Tribunal by the concession made by the Service that it did not seek access to any part of the report that contained the personal affairs of any person and that s 25 of the FOI Act could be used to delete any such information.
[7]See paragraph A.4 of the Service’s outline of submissions dated 28 October 2008.
Is the application for leave/ the appeal “hypothetical or moot”?
In support of its submission that the Tribunal found that the report does not contain confidential information, the Service relied upon paragraph [39] of the Tribunal’s reasons. Paragraph [39] provides:
“It is convenient to return here to … [the Department’s] submission, set out in paragraph 9[8], that the … [report] concerned security measures and was therefore not within the scope of the Service’s request. That contention was resisted by the Service. The Service made it clear that it was seeking disclosure of information about the administration of separation orders. Mr McKendry’s evidence makes it clear that the report concerns the administration of separation procedures. Given that evidence, which I accept, I am satisfied that the report does not solely ‘concern security measures’ but canvasses more than that, being the administration of separation orders.”
[8]I will return to the submission in paragraph [9] later.
I do not accept the Service’s submission that the Tribunal determined the report did not contain confidential information. First, the Tribunal did not say that it was satisfied that the report does not concern security measures. It said that the report does not “solely” concern security measures. It also said that the report “canvasse[d] more than that”.
Counsel for the Service invited me to disregard the word “solely”[9]. In support of the submission that I should disregard the word “solely” I was urged to read the report. It was submitted that a reading of the report would show that the Tribunal in fact concluded that the report does not concern security measures of the kind referred to in s 30(1)(f) of the Corrections Act[10]. Accordingly, I read the report. The report is in excess of 25 pages in length. Having read the report I am unable to conclude that when the Tribunal said that the report does not solely concern security measures but canvasses more than that, the Tribunal was in fact saying that the report did not concern security measures at all. In advancing this submission, counsel for the Service also submitted that when reading the Tribunal’s reasons I should not read them “with an eye attuned to error but looking at what the Tribunal is trying to express, what it’s trying to express is this document [the report] does not contain confidential information within paragraph 30(1)(f) of the Corrections Act”[11]. This was no doubt a reference to the line of authority which holds that a court should not be concerned with looseness in the language, nor with unhappy phrasing in the reasons of an administrative decision maker[12]. However, these authorities have no application to the point at hand. It is not reading the Tribunal’s reasons with “an eye attuned to error” to read and give content to the words of the Tribunal’s judgment. Further, no party suggests that, in concluding that the report did not solely concern security measures but canvassed more than that, the Tribunal fell into error[13]. In essence, the Service’s submission on this point invited me to re‑write the Tribunal’s decision to give it a meaning that it does not bear on its face. There is no warrant for doing this[14].
[9]At T14.5-T14.8 he said:
“If Your Honour takes the word ‘solely’ out it is, in our submission, a clear finding that the report does not concern security measures.”
[10]At T14.27-T14.30 counsel for the Service said:
“[W]e urge Your Honour to read the document, Your Honour will see that the findings of the Tribunal are simple, clear, obvious and any other finding would be perverse.”
[11]At T18.30-T19.3.
[12]See generally Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Millane v Hacker [2003] VSC 72 at [15].
[13]But cf T14.27-T14.30.
[14]Counsel for the Service also submitted that in saying the word “solely” the Tribunal was “saying in a related way … that the material is not specifically related to the question within s 38 of the FOI Act” (T16.25-T16.28). This was a reference to the line of authority that establishes that if an enactment does no more than prohibit the disclosure of information identified only by reference to the capacity of the person who has received or is in possession of the information then the enactment is not an enactment of the kind referred to in s 38 of the FOI Act (see The News Corporation Limited v National Companies and Securities Commission (1984) 1 FCR 64 at p.70). I reject this submission. There is no basis for giving the word “solely” anything other than its ordinary meaning. Further, paragraph [9] of the Tribunal’s reasons do not have anything to do with this line of authority. The principle that the line of authority stands for is not in issue in this case.
Whilst I was invited to read the document (either for the purpose of determining the content of the Tribunal’s conclusion or to inform myself of what the report contains[15]), a significant body of evidence was given by witnesses called by the Service and the Department before the Tribunal. Some of this evidence canvassed the issue of whether or not the report contained “information concerning the management of, or the operation of security measures in, or in relation to, a prison”. It would be wrong of this Court merely to read the report to determine for itself whether or not the report concerned relevant security measures. The matter (as is asserted by the Service) is a factual matter[16] upon which this Court should not embark. This is all the more so in circumstances where the evidence of the witnesses (some of which was given in closed session[17]) is not before the Court.
[15]See paragraph B.11 of the Service’s outline of submissions dated 28 October 2008.
[16]Or perhaps a matter of mixed fact and law.
[17]See paragraph [11] of the Tribunal’s reasons.
There is a second reason for concluding that the Tribunal did not determine the issue of the existence of confidential information in the report against the Department[18]. An examination of the whole of the reasons discloses that whilst there are passages which describe aspects of the reasons[19], there is no actual analysis with reference specifically to s 30(1)(f) of the Corrections Act.[20] There is no holding in the reasons that the report is not exempt under s 38 of the FOI Act because it contains no “confidential information” as defined in s 30(1) of the Corrections Act. If one examines paragraph [39] of the Tribunal’s reasons in more detail one sees that the material in this paragraph is responsive to a submission made by the Department and which is referred to in paragraph [9] of the reasons. The Department’s submission was that the Service had stated that it had “never sought information that concerns security measures in any prison”. It was then submitted that the report concerns security measures and, as that information was not sought, the whole report was irrelevant and the request for access to it ought be dismissed. Paragraph [39] of the Tribunal’s reasons addresses this submission, concluding that the report does not “solely” concern security measures and is therefore not irrelevant in the way contended for by the Department.
[18]The first reason is set out in paragraph [13] above.
[19]For example, paragraph [53] of the Tribunal’s reasons.
[20]The matter was identified by the Tribunal in paragraph [21] of its reasons when it said: “[t]here was debate between the parties about whether or not the report contained confidential information as defined in the section”. However, the Tribunal then put that matter “aside” and then paragraphs [22] to [38] disposed of the Department’s argument under s. 38 on the basis that the Tribunal was not satisfied that the Secretary was a person referred to in s 30(1) of the Corrections Act.
On a fair reading of the Tribunal’s reasons[21], the Tribunal did not determine the Service’s contention that the report does not contain “information concerning the management of, or the operation of security measures in, or in relation to, a prison”. This was no doubt so because of the view the Tribunal took as to the proper construction of s 38 of the FOI Act and s 30 of the Corrections Act. The matter remains an issue between the parties. It follows from what I have said above that neither the application for leave to appeal nor the appeal are “hypothetical or moot”.
The proper construction of s 38 of the FOI Act
[21]And not with an eye attuned to error.
The Service submits that the Tribunal made no error in asking whether the Secretary (the person in possession of the report) was prohibited from disclosing the report pursuant to s 30 of the Corrections Act. It submits further that in determining whether the s 38 exemption was made out, it was correct for the Tribunal to ask whether the Secretary was a person prevented from disclosing information of the kind contained in the report[22]. In doing what it did the Tribunal (according to the Service) “was simply applying the criteria set out in s 38 of the FOI Act and s 30 of the Corrections Act to the facts of the case before it”.
[22]Paragraphs C.3 and C.4 of the Service’s outline of submissions dated 28 October 2008.
In support of the construction of s 38 of the FOI Act for which it contends, the Service submits that the exemption contained in s 38 of the FOI Act “should be construed narrowly and in a way that does not restrict access to documents, in accordance with the purpose of the FOI Act”[23]. Reliance is placed upon passages in the judgment of Kirby J in Osland v Secretary, Department of Justice[24]. The passages relied upon are contained in paragraphs 65 to 66 and 75 to 76 of his Honour’s judgment. They provide (omitting footnotes):
“The starting point for resolving the issues presented by the present appeal is an appreciation of the duty of this Court, in this context, to do what we are constantly instructing other courts to do in giving effect to legislation. This is to read the legislative text in its context (including against the background of the significant change that the legislation introduces) and, so far as the text and context permit, to give effect to the legislative purpose.
In the present setting, that purpose is a radical one. It assigns very high importance to a public interest in greater openness and transparency in public administration. Given the historical background, the attitudinal shift that FOI legislation demanded of Ministers, departments, agencies and the public service is nothing short of revolutionary. The courts ought not to obstruct that shift. On the contrary, they should strive to interpret FOI legislation in a manner harmonious with its objectives, doing so to the fullest extent that the text allows.”
…
“Apparently concerned that Ministers, departments, agencies and courts might conceivably adhere, or return, to the old ways of governmental secrecy, the Victorian Parliament spoke directly to all of those actors. It declared its intention as to how the FOI Act should be interpreted. Section 3(2) of that Act states that such interpretation is to be adopted as would ‘further the object set out in sub-section (1) [of s 3]’. It further requires any discretions conferred by the Act to be exercised ‘as far as possible so as to facilitate and promote ... the disclosure of information’.
It is difficult to know how the Parliament of Victoria could have been more emphatic, forthright or clear in indicating the commencement of a new legal era. Courts that construe an Act such as the FOI Act, attentive to preserve the status quo ante, avid to find exceptions, and generous in discerning documents exempt from disclosure, are not being faithful to Parliament's purposes and the declared objects of the Act. An approach hostile to the disclosure of information in documentary form will frustrate the imputed intention of Parliament. To the extent that past rules deriving from the royal prerogative, the common law or earlier inconsistent legislation suggest otherwise, those rules must now be adapted to the provisions, objects and realities of the FOI Act. The duty of the courts, including this Court, is to ensure that this occurs.”
[23]See paragraph D.21 of the outline of submissions of the Service dated 28 October 2008.
[24](2008) 234 CLR 275.
There can be no issue that the Court should strive to interpret the FOI Act “in a manner harmonious with its objectives, doing so to the fullest extent that the text allows”. Similarly, “[a]n approach hostile to disclosure of information in documentary form” must be eschewed. However, the approached required to be taken in interpreting s 38 of the FOI Act does not permit the Court to disregard or take liberties with the text of the Act. To the contrary, whilst the Court should[25] strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows.
[25]To borrow from the words of Kirby J.
In this case the text of s 38 is plain. In order for a document to be exempt, the relevant enactment must prohibit “persons referred to in the enactment” from disclosing the relevant information. Section 38 does not provide that the enactment must prohibit the person in possession of the document or the person to whom the document was provided or the person to whom the document was addressed from disclosing the relevant information: it only provides that the enactment must prohibit persons referred to in the enactment from such disclosures. Had the Parliament wished to provide that enactments of the kind referred to in s 38 of the FOI Act had to prohibit the person in possession of the document from making any disclosure then it could have so provided. There is no basis for departing from the language and plain meaning of s 38. This construction also has the benefit of providing that a document will be exempt if a non‑disclosure or secrecy provision applies to its contents rather than on the more random basis of whether or not the document is or has fallen into the hands of an individual who may or may not be a person to whom such a provision applies[26].
[26]See also Department of Premiere and Cabinet v Birrell (No. 2) [1990] VR 51, per Murphy J at p.52:
“’The document’ which is to be considered is the document which the particular applicant seeks to see. The information contained in that document must be ‘of a kind’ to which the enactment in question ‘specifically’ applies, before the document containing it is ‘exempt’ under s 38 of the Act. It is the information that is in the document which must give it the quality, must make it of the class of information that is ‘specifically’ made the subject of the enactment in question, which proscribes persons from disclosing that kind of information. It is not the document itself to which the enactment should refer.”
The Tribunal asked itself the question of whether the secrecy provisions in s 30 of the Corrections Act applied to the Secretary[27]. This was the wrong question. The Tribunal asked itself this question because it misconstrued s 38 which only required that s 30 of the Corrections Act (being the relevant enactment in this case) prohibit persons referred to in that section (s 30 of the Corrections Act) from disclosing information of the relevant kind. Thus, in determining the matter as it did, the Tribunal committed an error of law. If I am wrong in this conclusion, there remains the Secretary’s subsidiary contention[28] that the Secretary is bound by s 30 of the Corrections Act in any event.
The proper construction of s 30 of the Corrections Act
[27]See paragraph [30] of the Tribunal’s reasons.
[28]Set out in paragraph 10 above.
On the assumption that s 30(2) of the Corrections Act has to apply to the Secretary before the report can be an exempt document pursuant to s 38 of the FOI Act (an assumption which I have already held to be erroneous), the Service contends that the Secretary is not a person to whom the prohibition in s 30(2) applies. This issue falls to be determined by reference to whether the Secretary holds a position within the meaning of s 30(2). The relevant paragraph of the definition of “position” in s 30(1) is paragraph (c), namely “a personal authorised to exercise the functions or powers of a prison officer or a medical officer”. The Secretary contends that this paragraph of the definition of “position” has application because of s 17 of the Corrections Act. Section 17(1) of the Corrections Act provides:
“The Secretary has and may exercise all or any of the powers or functions of a Governor of a prison or a prison officer or escort officer under this Act.”
The Secretary’s argument is that s 17(1) gives the Secretary the powers and functions of a prison officer and permits the Secretary to exercise those powers and functions. When one then looks at paragraph (c) of the definition of “position” in s 30(1) one sees that the Secretary answers the description of “a person authorised to exercise the functions or powers of a prison officer”. This argument (“the s 17 argument”) was not raised by the Department before the Tribunal. The Service objects to the Secretary raising it in this proceeding. However, the s 17 argument is a pure point of construction. Had it been raised before the Tribunal it would not have resulted in the Service leading any additional or different evidence, nor would it have resulted in the Service conducting its case differently before the Tribunal (save for advancing its own arguments as to why the s 17 argument should be rejected)[29]. In the circumstances of this case I am persuaded that the interests of justice dictate that the Secretary be permitted to put the s 17 argument in this proceeding even though it was not put before the Tribunal[30]. The case should not be allowed to proceed on a false or incomplete legal basis.
[29]See T30.27-T30.31. See also Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at paragraph [51].
[30]The failure to put the s 17 argument to the Tribunal may have some relevance later on the question of costs.
In answer to the s 17 argument, the Service contends that when one looks at the whole of the definition of “position” in s 30(1) one sees in paragraph (b) a specific reference to “a delegate of the Secretary … “. The Service submits that in circumstances where the Parliament has made specific reference to a delegate of the Secretary, it is, at least, curious that Parliament did not specifically refer to the Secretary if it intended the Secretary to be covered by the definition. The Service also relies upon the legislative history of the Corrections Act, and in particular the legislative history so far as it concerned s 17. However, a close examination of the original version of s 17 and its amendments throws no light on the issue[31]. Reading ss 17 and 30 in the context of the balance of the Corrections Act[32] suggest that so far as confidential information was concerned the Parliament intended the Secretary to be prohibited from disclosing the same in the same way that any other person caught by the section was so prohibited. That this is so can be seen from the existence of ss 30A, 104Y, 104Z and 104ZA of the Corrections Act. Each of those sections permits[33] the Secretary to disclose confidential information that might otherwise be caught by the prohibition in s 30(2)[34].
[31]The argument put by the Service was that s 17 gave the Secretary a reserve power to step in and take control of a prison or part of a prison (or authorise other people to take control of a prison) if “things went really wrong”. Section 17 was said to be “an overarching reserve power”. Whereas s 30 contained a specific definition of “officer” within the definition of “position” and the definition of “officer” does not cover the Secretary.
Whilst it is true that in its original forms s 17 gave the Director-General (the Secretary’s predecessor so far as the Corrections Act is concerned) the powers of a prison officer “[i]f whilst at a prison the Director‑General consider[ed] that the security or good order of the prison or the safety of the prisoners [was] threatened”, the current and wider s 17 gives the Secretary the powers of a prison officer without this precondition. The explanation for this change is to be found in the Second Reading Speech of the Corrections (Amendment) Bill 1994 on p.1073 of the Hansard for the Legislative Assembly on 13 October 1994, viz:
“The Corrections Act 1986 does not enable the Secretary of the Department of Justice who is responsible for the administration of Correctional Services in Victoria, to exercise the power of a governor or prison officer.
The Bill will ensure that the Secretary is able to exercise all the powers and carry out all the functions conferred upon officers under the Act and to ban a visitor from any or all prisoners where the visitor threatens the good order or security of the prison.”
An examination of the various amending Acts, their explanatory memoranda and Second Reaching Speeches does not bear out the submission made by the Service. There is no basis for failing to give s 17 full operative effect according to its terms, including in relation to s 30.
[32]See generally Metropolitan Gas Company v Federated Gas Employees Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 per Mason P at 172; CIC Insurance Limited v Bankstown Football Club (1995) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ at 408; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 112; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2, [69]-[71] and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [11].
[33]Although in s 104Y such “permission” is expressed to be in mandatory terms if the requirements of the section are met.
[34]An additional argument was put by the Service based upon an Organisational Chart for the Department of Justice that was handed up during argument. The chart identifies the Secretary in a position above eight executive directors who themselves are in positions above various directors, managers, CEOs, acting CEOs, deputy directors, project directors and the like. It was submitted that if the Secretary’s submissions concerning the construction and operation of s 30 of the Corrections Act were to be accepted then the whole of the Department of Justice would become subject to s 30(2) of the Corrections Act resulting in a much broader category of exempt documents under s 38 of the FOI Act. Whilst the Secretary possesses a power of delegation under s 8 of the Corrections Act, the Service’s argument cannot be accepted. Section 17 does not give any person other than the Secretary the powers of a prison officer.
As with s 38 of the FOI Act, the Service submitted in relation to s 30 of the Corrections Act that it should be construed narrowly and in a way that does not restrict access to documents in accordance with the purpose of the FOI Act[35]. However, it is to be remembered that s 30 of the Corrections Act does not exist merely to be picked up by s 38 of the FOI Act. Section 30 of the Corrections Act has a stand alone application preventing the persons to whom it applies from disclosing confidential information. In construing s 30 in the context with the remainder of the provisions in the Corrections Act there is no discernable policy reason or purpose disclosed which would support the proposition that the Secretary ought to be excluded from the operation of s 30(2).
[35]See paragraph D.21 of the Service’s outline of submissions dated 28 October 2008.
Whilst there is some force in the Service’s argument concerning the failure to refer to the Secretary explicitly in the definition of “position”, the operation of s 17 of the Corrections Act on the definition of “position” in s 30(1) and the construction of s 30 in its context mandates a conclusion that the Secretary is a person to whom s 30(2) has application. The Service raised an additional argument that there was no evidence before the Tribunal[36] that the Secretary received the report as a “prison officer” (picking up the way in which s 17(1) causes the Secretary to be a person to whom s 30(2) has application). However, given my conclusions as to the proper construction of s 38 of the FOI Act, this submission must also be rejected. Further, it is doubtful if it would be a defence to a prosecution under s 30(2) of the Corrections Act for a person caught by that section to say that they disclosed confidential information but that the information was not received in the capacity in which they were employed[37].
[36]And thus there is no evidence.
[37]For example, the relevant person might have acquired the information by seeing a document which had nothing to do with their duties on another person’s desk.
It follows from what I have said above that the Tribunal erred in law in determining that the Secretary was not a person who “holds or has held a position” within the meaning of s 30(2) of the Corrections Act. In fairness to the Tribunal I should note that the argument put by the Secretary on this aspect of the case was not put by the Department to the Tribunal. Had it been put there is every prospect that the result before the Tribunal would have been different[38]. Having identified the errors of law involved in the construction, application and interaction of s 38 of the FOI Act and s 30 of the Corrections Act, what remains is to determine the Secretary’s application for leave to appeal and the appeal (if leave is granted).
[38]Depending upon the way in which the Tribunal resolved the other issues that were before it.
The application for leave to appeal
The considerations which bear upon the granting of leave to appeal under s 148 of the VCAT Act were discussed by the Court of Appeal in Secretary to the Department of Premiere and Cabinet v Hulls[39]. In that case Phillips JA[40] said[41]:
“There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s.148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.”
[39][1999] 3 VR 331.
[40]With whom Tadgell and Batt JJA agreed.
[41]At paragraph [16], having discussed the issues in paragraphs [8] – [15].
The Court of Appeal’s decision has a number of parallels with the present case. That case was a Freedom of Information Act case which involved the proper construction of s 50(4) of the FOI Act and the relationship between that section and s 151 of the Casino Control Act 1991. In the present case I have determined that the Tribunal’s construction of s 38 of the FOI Act and s 30 of the Corrections Act involved errors of law. The questions of construction are[42] of considerable public importance, given the frequency with which the FOI Act is invoked and the significance of s 38 having regard to the number of enactments that are capable of being picked up by s 38. Further, the decision of the Tribunal is final in the sense that unreversed it will result in access to the report being granted with the loss of confidentiality in any confidential information contained in it. In the circumstances, there should be a grant of leave to the applicant to appeal against the Tribunal’s decision.
[42]To borrow from the words of Phillips JA in Secretary to the Department of Premiere and Cabinet v Hulls, supra at paragraph [18].
Disposition of the appeal
Leave to appeal having been granted, it now falls to this Court to hear and determine the appeal[43]. The Tribunal’s construction of s 38 of the FOI Act and s 30 of the Corrections Act[44] was in error for the reasons I have given above. It follows that the appeal must be allowed.
[43]Pursuant to the Order of the Court made on 22 August 2008 and referred to in paragraph [3] above.
[44]More specifically with reference to s 30 of the Corrections Act – the definition of “position” in s 30(1).
The Service submitted that if I came to the conclusion that there was an error of law which justified the granting of leave and the upholding of an appeal then I should look at the report and determine the Service’s application for review by making the order that the Tribunal could have made under s 148(7)(b) of the VCAT Act. This would involve this Court embarking upon three exercises which would ordinarily be expected to be determined by the Tribunal, namely:
(a)first, determining whether the report contains information concerning the management of, or the operation of security measures in, or in relation to, a prison”
(b)secondly, determining any possible application of s 25 of the FOI Act (that is, the possibility of deleting from the report any exempt matter); and
(c)thirdly, the determination of the public interest issue raised by s 50(4) of the FOI Act[45].
[45]The public interest issue raised by s 50(4) is different from that raised in s 30(1)(b). In s 30(1)(b) the Tribunal had to assess whether disclosure would be contrary to the public interest. Under s 50(4) the question is whether the public interest requires access to be granted.
At least the first and third of the matters that require further determination involve evidence which has already been given before the Tribunal. Questions of fact[46] are involved. In XYZ v State Trustees Limited& Anor[47] Cavanough J said[48]:
[46]Or at least mixed fact and law.
[47][2006] VSC 444.
[48]At paragraphs [63] and [64].
“As indicated earlier, I do not accept Mr Sharp’s submission that the Court should make a decision finally terminating the administration in substitution for VCAT’s decision. Notwithstanding that s 148(7) of the VCAT Act empowers the Court to make various kinds of order on an appeal including “(b) an order that the Tribunal could have made in the proceeding”, the proceeding is by way of judicial review rather than by way of appeal in the usual sense. Section 148:
…is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal.[49]
Generally speaking, it would not be appropriate to substitute a new decision for VCAT’s decision unless it were the only decision open to VCAT as a matter of law. That is not this case. The material that was before VCAT was certainly not all one way. Parliament has reposed in VCAT, not this Court, the responsibility for assessing the relevant material and for making the correct or preferable decision on the facts and the merits.”
These observations are apposite. In the circumstances the matter must be remitted pursuant to s 148(7)(c) of the VCAT Act.
[49]The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 at [15].
It remains to determine whether the Tribunal should be constituted by the same Deputy President who made the original order[50]. The proceeding at first instance was heard over four days[51]. There does not appear to me to be any reason why the matter should not be remitted to the same Deputy President who made the original order. This course would be considerably more efficient than remitting the matter for hearing before a different member of the Tribunal. In the course of argument neither party expressed any issue with the matter being remitted to the original Deputy President[52] (assuming I formed the view that the application for leave be granted and the appeal allowed). In the circumstances I propose to give a direction pursuant to s 148(8) of the VCAT Act that the remitted proceeding be heard and decided again by the same Deputy President who made the original order.
[50]See s 148(8) of the VCAT Act.
[51]The dates of hearing shown on the Order are 5-7 February and 7 March 2008.
[52]Indeed there was assent to the proposition by both parties at T8.17-T9.2.
Conclusion
For the reasons given above there will be a grant of leave to appeal, the appeal will be allowed and the matter will be remitted to the Tribunal as originally constituted for reconsideration in accordance with these reasons. I will hear the parties on the form of the order and the question of costs.
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