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  • Unreported Judgment

Department of Youth Justice v Office of the Information Commissioner

 

[2019] QCATA 143

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Department of Youth Justice v Office of the Information Commissioner & Ors; Department of Youth Justice v Office of the Information Commissioner & Anor [2019] QCATA 143

PARTIES:

In APL343-18:

DEPARTMENT OF YOUTH JUSTICE

(appellant)

v

OFFICE OF THE INFORMATION COMMISIONER

(first respondent)

SEVEN NETWORK (OPERATIONS) LIMITED

(second respondent)

DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(third respondent)

In APL344-18:

DEPARTMENT OF YOUTH JUSTICE

(appellant)

OFFICE OF THE INFORMATION COMMISIONER

(first respondent)

AUSTRALIAN BROADCASTING CORPORATION

(second respondent)

APPLICATION NO/S:

APL343-18; APL344-18

ORIGINATING

APPLICATION NO/S:

313657; 313486

MATTER TYPE:

Appeals

DELIVERED ON:

29 October 2019

HEARING DATE:

2 September 2019

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:

  1. The appeals are allowed.
  2. Each application and review is remitted to the Information Commissioner, to be reconsidered in light of these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where Seven Network (Operations) Limited (Seven) made an application to the Department of Justice and Attorney-General (DJAG) under the Right to Information Act 2009 (RTI Act) for access to information relating to security breaches at youth detention centres – where DJAG refused access to CCTV footage on the ground that it was exempt information under the RTI Act – where Seven applied to the Information Commissioner for external review of the decision to refuse access to the CCTV footage – where a delegate of the Information Commissioner determined that the CCTV footage was not exempt information under the RTI Act and decided there were no grounds on which access to the information could be refused – where the Department of Youth Justice appeals that decision to the Tribunal – whether appeal on question of law as required by s 119 of the RTI Act – whether appeal made out

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where the Australian Broadcasting Corporation (ABC) applied to DJAG under the RTI Act for access to Youth Detention Inspection Reports and to CCTV footage relating to two incidents at one or two youth detention centres – where DJAG refused access to part of the reports and to CCTV footage and audio recordings on the ground that it was exempt information under the RTI Act – where ABC applied for external review in relation to certain information in an inspection report and two pieces of CCTV footage – where a delegate of the Information Commissioner decided the information was not exempt information and that there were no grounds to refuse access to the information – where the Department of Youth Justice appeals that decision to the Tribunal – whether appeal on question of law as required by s 119 of the RTI Act – whether appeal made out

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – REFERENCE TO CONTEXT – where the delegate of the Information Commissioner determined that the information to which access was sought was not exempt information under s 48 and Schedule 3 of the RTI Act by reference to s 288 of the Youth Justice Act 1992 (YJ Act) – where the delegate determined that the correct test for determining whether information was exempt was whether the information if disclosed would identify a child, or would be likely to identify a child, as a child being dealt with under the YJ Act to a person who does not already know the child and the child’s status under the YJ Act – whether the delegate erred in so construing s 288 of the YJ Act

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES AND TERRITORIES – where the delegate of the Information Commissioner failed to pay sufficient attention to the effect of the language used in s 288 of the YJ Act – where the delegate modified the effect of that language by reference to her view of the meaning of the terms without proper attention to the effect of the definitions – whether a question of law for the purposes of s 119 of the RTI Act

Right to Information Act 2009, s 6, s 23, s 44, s 47, s 48, s119, sch 3, sch 5

Youth Justice Act 1992, s 3, s 283, s 284, s 286, s 287, s288, sch 4

Alcan (NT) Alumina Pty Ltd v Commissioner of State Revenue (Vict) (2009) 239 CLR 27; [2009] HCA 41

Australian Broadcasting Corporation and Department of Child Safety, Youth and Women [2018] QICmr 47 (21 November 2018)

Bailey v Hinch [1989] VR 78

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456

Jane Doe v Fairfax Media Publications [2018] NSWSC 1996

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

Norrie v NSW Registrar of Births, Deaths and Marriages (2013) NSWLR 697; [2013] NSWCA 145

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80

Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Public Transport Authority [2018] WASC 47

Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women (Third Party) [2018] QICmr 48 (29 November 2018)

SGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

APPEARANCES &

REPRESENTATION:

In APL343-18:

Applicant:

A D Scott, instructed by Crown Solicitor

First Respondent:

T Lake, employee of Office of the Information Commissioner

Second Respondent:

A Sandy, employee of Seven Network (Operations) Limited

Third Respondent:

No appearance

In APL344-18:

Applicant:

A D Scott, instructed by Crown Solicitor

First Respondent:

T Lake, employee of Office of the Information Commissioner

Second Respondent:

D Chen, employee of Australian Broadcasting Corporation

REASONS FOR DECISION

  1. [1]
    These appeals, which were heard together, are against determinations of the Information Commissioner, made by a delegate, of applications for external review under the Right to Information Act 2009 (Qld) (RTI Act). The issue in each is the same and may be stated as follows, namely, whether the delegate erred in law in determining that certain information was not “exempt information” for the purposes of the RTI Act; and accordingly that there were no grounds upon which access to the information might be refused under that Act.

Parties

  1. [2]
    The Department of Youth Justice (Youth Justice) is now the department of the State Government with responsibility for the administration of the Youth Justice Act 1992 (Qld) (YJ Act). At an earlier point in time, this was the responsibility of the Department of Justice and Attorney-General (DJAG); and later of the Department of Child Safety, Youth and Women (DCSYW).
  2. [3]
    Seven Network (Operations) Limited (Seven) and the Australian Broadcasting Commission (ABC) each made an application for access to information; and subsequently for external review, as previously mentioned.
  3. [4]
    DJAG was a respondent to the Seven appeal, but not the ABC appeal. It filed submissions, going generally to matters relevant to the scope of the appeal including the Tribunal’s powers on appeal; identifying uncontested matters of fact; and submitting that it should take no active role in the appeal. The Tribunal had read these submissions as part of its preparation for the hearing. It was subsequently informed that DJAG had been excused from further participation in the proceedings. However, no point was taken about the fact that the submissions had been read; and they were of some assistance on the legal background to the appeals.
  4. [5]
    The appeals were originally brought by DCSYW; but by direction dated 16 July 2019, the name of the appellant in each appeal was changed to Youth Justice.
  5. [6]
    The RTI Act envisages that a department may be a participant in an external review.[1] Section 119 of that Act requires a copy of a notice of appeal against a decision of the Information Commissioner on such a review to be served on all participants in the review. No issue has been taken about the status of any party to these proceedings, and it is unnecessary to pursue this question further.

Background

  1. [7]
    The ABC applied to DJAG under the RTI Act for access to certain Youth Detention Inspection Reports; and to CCTV footage relating to two incidents at one, or perhaps two, youth detention centres. DJAG located 64 pages in reports corresponding to the application, as well as CCTV footage and two audio recordings. It decided to give the applicant access to much of the material from the reports, but to refuse access to part of this material; and to refuse access to the CCTV footage and the audio recordings. The ABC then applied for external review in relation to certain information on five pages of an inspection report, and two pieces of CCTV footage.
  2. [8]
    Seven made a similar application to DJAG for information relating to security breaches at youth detention centres from a stated date. DJAG located 173 pages of material and three pieces of CCTV footage, potentially responsive to the application. It decided that 19 pages fell outside the application. It gave access to some of the textual material; but refused access to the rest of that material on the grounds of public interest. It refused to provide the CCTV footage to Seven, on the ground that it was exempt information under the RTI Act. Seven then applied for external review of DJAG’s decision in relation to the CCTV footage.
  3. [9]
    It should be noted that the CCTV footage to which access was ultimately sought was pixelated, apparently in a way which removed images of the faces of the persons seen in the footage. Names did not appear in the other documents; and one other piece of potentially identifying information was removed.

Decision of Information Commissioner

  1. [10]
    Two issues were formulated by the delegate for determination in the external review.[2] One was whether the information of which disclosure was sought was exempt information for the purposes of the RTI Act. That depended upon whether its disclosure was the subject of the prohibition in s 288 of the YJ Act. The second was whether disclosure of the information in issue would, on balance, be contrary to the public interest.
  2. [11]
    As will be seen, broadly put, the disclosure prohibited by s 288 is of what is described as confidential information, said to include information about a child that identifies the child, or is likely to lead to the identification of the child, as a child who is being, or has been, dealt with under the YJ Act. The delegate made findings that the pixelated CCTV footage and the de-identified report did not (with a qualification) identify any child referred to in them. However, the qualification appears in the following passage from the reasons in the ABC review:
  1. Despite the poor quality of the footage and the pixelation that has been applied to it, and the fact that the Inspection Report is already in de-identified terms, I acknowledge that the children involved in the relevant incidents may still recognise themselves as being referred to or depicted in the Information in Issue. There may also be some detention centre staff and perhaps other children who were detained in the centre at the same time who are aware of the incidents and the identities of those involved. However, this identification relies upon special knowledge.[3] Importantly, this small cohort of persons is already aware that the children in question are being, or have been, dealt with under the YJ Act. As such, the Information in Issue is not ‘confidential information about a child’ for those persons because they are already aware of the child’s identity and their status under the YJ Act. It is not confidential or secret information vis-à-vis them. The ordinary dictionary meaning of ‘confidential’ is ‘secret; intended to be kept secret’.[4]

41. In my view, the correct test for whether information qualifies as ‘confidential information about a child’ for the purposes of the YJ Act is whether it will identify a child, or will likely lead to the identification of a child, et cetera, to a person who has no special knowledge, i.e., to a person who does not already know the child’s identity and their status under the YJ Act. That is, will the information reveal to an ordinary person or is it likely to reveal to them, information that they did not know; information that was hitherto secret or confidential from them?

  1. [12]
    To similar effect is the following passage from the reasons in the Seven review:

27. The correct test for whether information qualifies as ‘confidential information about a child’ for the purposes of the YJ Act is whether it will identify a child, or will likely lead to the identification of a child, as a child who is being or has been dealt with under the YJ Act, to a person who has no special knowledge.

  1. Having carefully reviewed the Information in Issue, I do not accept that it is identifying information about a child for the purposes of section 284(a) of the YJ Act. I do not consider it likely that a person who does not already know of the incident(s) in question and the young persons’ involvement in them would be able to view the pixelated CCTV footage and identify the young persons, thereby learning of their status as young persons being dealt with under the YJ Act. The footage is taken at night and parts of it are blurred and of poor quality. This, together with the pixelation that has been applied, is sufficient, in my view, to remove any identifying information about a child from those with no special knowledge.
  1. [13]
    It is apparent from these passages that the delegate found that the material would identify certain children as children being dealt with under the YJ Act to people with “special knowledge”, that is, to people who already know of the young persons and their status under the YJ Act.[5] The delegate’s view was that the correct test to be applied to determine what information was the subject of the prohibition was whether the information (if disclosed) would identify a child, or would be likely to identify a child, as a child being dealt with under the YJ Act, to a person a person who does not already know the child, and the child’s status under the Act.
  2. [14]
    The delegate also found that disclosure of the information in issue would not, on balance, be contrary to the public interest. The appellant did not challenge the finding relating to the public interest issue. The appeal was confined to the issue relating to exempt information. Mr Chen, for the ABC, made a submission relating to the public interest. However, he acknowledged orally that this was a separate issue; and withdrew his submission.

Contentions

  1. [15]
    The parties (other than Seven) provided written submissions. Neither the Information Commissioner nor DJAG made oral submissions. Seven made brief oral submissions. Youth Justice and the ABC made oral submissions, generally reflecting their written submissions.
  2. [16]
    Mr Scott, for Youth Justice, submitted that the delegate made six errors of law, identified in paragraph 45 of his written submissions. However, he acknowledged in his oral submissions that the third to the sixth of these errors related to the reasoning of the delegate, and that her conclusions might nevertheless be correct, notwithstanding those errors. His submissions focused on his first submission, namely, that the delegate had placed an inappropriate gloss on the legislative text, it would seem of s288, by reading it as prohibiting disclosure of identifying information only to persons who do not have the special knowledge to which the reasons refer.
  3. [17]
    The second error for which Mr Scott contended, as formulated in his written submissions, was that the delegate’s construction of the relevant legislative provisions was inconsistent with the approach taken in respect of analogous statutory provisions in other cases. However, in his oral submissions, he said that he relied on those cases simply as instances demonstrating the proposition that it is inappropriate to introduce a gloss into the legislative text, as occurred here.
  4. [18]
    In support of his primary contention, Mr Scott submitted that the correct approach to statutory construction is to begin with a consideration of the text and language of the statute, with regard to the context and purpose of the provision. That approach is to be preferred to adding judicial or other glosses to the statutory language. Here the delegate added a gloss to the statutory provisions, limiting their operation, in a way not provided for in the Act. The interpretation adopted by the delegate was likely to lead to an invasion of the children’s privacy, contrary to one of the purposes of the YJ Act.
  5. [19]
    The third to sixth errors relied upon by Mr Scott relate to the use made by the delegate of provisions in the RTI Act, for the purpose of construing the prohibition found in s288 of the YJ Act. He identified circumstances in which other legislation might be relied upon for the construction of a legislative provision, and submitted that none had application to the present case. He submitted that, in identifying exempt information, the RTI Act had simply adopted the prohibition in the YJ Act, preserving its full effect. The purpose of the prohibition in the YJ Act is to be determined from that Act, and not from the RTI Act. The delegate also erred in concluding that the appellant’s proposed construction would result in a blanket exemption from publication of certain types of information.
  6. [20]
    For the ABC, it was submitted that whether the information identified a child was a question of fact; and accordingly the appeal was not brought on a question of law. It was submitted that the construction proposed by the appellant would result in a blanket ban of media reporting of offending by young people, and their subsequent treatment. There was a public interest in the reporting of these matters. The appellant’s construction was inconsistent with the pro-disclosure bias found in the RTI Act.
  7. [21]
    Ms Sandy, for Seven, pointed out that her ability to assist the Tribunal was limited because she did not have legal qualifications, and could say little about questions of law. With reference to cases decided in other States, she submitted that the legislation in other States was less pro-disclosure than the RTI Act. She also submitted that it was doubtful that the information in issue would identify the child, even to the child shown in the footage.
  8. [22]
    The written submissions for the Information Commissioner contended that the fact that a child might feel that his or her privacy had been invaded by disclosure of information was not relevant to the construction of the provisions of the YJ Act. The submissions referred to the discussion of Public Transport Authority[6] in the delegate’s reasons. It was submitted that Jane Doe v Fairfax Media Publications[7] supported the delegate’s construction. Other decisions referred to by Youth Justice did not constitute a trend of authority, and did not support its construction. It was also submitted that the delegate did not base her construction of the provisions of the YJAct on the implications for access applications under the RTI Act.

Statutory context

  1. [23]
    Section 23 of the RTI Act confers on persons a right to access to documents of an “agency”. There is no issue in these proceedings as to whether DJAG was such an agency. Part 2 of Chapter 3 makes provision for an application to an agency for access to such documents. Section 47 permits an agency to refuse access to a document, to the extent it comprises exempt information. Exempt information is identified in Schedule 3 to the Act,[8] which includes the following:

Information disclosure of which is prohibited by Act

Information is exempt information if its disclosure is prohibited by 1 of the following provisions –

Youth Justice Act 1992, section 288.

  1. [24]
    The RTI Act does not provide a definition of the term “disclosure”.
  2. [25]
    It should be noted (as was pointed out by Mr Scott) that s 3 of the RTI Act identifies the primary object of the Act as the giving of a right to access to information in the government’s possession or under its control unless, on balance, such access would be contrary to the public interest; and that the Act is to be applied and interpreted to further this object; and that s 44 articulates the pro-disclosure bias intended by Parliament. It might also be noted that s 6 of the Act states that its provisions override the provisions of other Acts prohibiting the disclosure of information; but includes the following:[9]

Notes—

1The Parliament considers that, unless the information is personal information of the applicant, information the disclosure of which is prohibited under a provision of an Act mentioned in schedule 3, section 12 is information the disclosure of which would, on balance, be contrary to the public interest—see section 44(2)(a) and schedule 3, section 12.

2This information is called exempt information and, under section 47(3)(a), an agency or Minister may refuse access to a document to the extent the document comprises exempt information.

3However, an agency or Minister may give access to a document even if this Act provides that access to the document may be refused—see section 48(3).

  1. [26]
    Section 288 of the YJ Act is as follows:

Preservation of confidentiality

The person must not—

  1. record or use the information, or intentionally disclose it to anyone, other than under this division; or
  2. recklessly disclose the information to anyone.

Maximum penalty (subject to part7)—100 penalty units or 2 years imprisonment.

  1. [27]
    The following provisions of the YJ Act are also relevant:

283 Confidential information to which this part applies

  1. This part applies to confidential information relating to a child who is being, or has been, dealt with under this Act.
  2. The ways that a child may be dealt with under this Act include—
  1. being investigated for an offence; and
  2. being detained; and
  3. participating in a restorative justice process; and
  4. being cautioned, prosecuted or sentenced for an offence.
  1. This part continues to apply to the information after the child becomes an adult.
  2. This part also applies to confidential information relating to an adult who is being, or has been, dealt with under this Act for a child offence, as if he or she were still a child.

284 Definitions for pt 9

In this part—

...

confidential information, relating to a child, includes—

  1. identifying information about the child; and
  2. a report made for the purposes of a court proceeding relating to the child; and
  3. a report about the child made for the department or another government department; and
  4. a report about the child given to an agency for the purpose of carrying out the objects of this Act; and
  5. information about the child gained by a convenor or coordinator in relation to the convening of a conference; and
  6. a record or transcription of a court proceeding relating to the child.

286 Meaning of disclose for pt 9

For this part, a person discloses information to someone else if the person—

  1. orally discloses the information to the other person; or
  2. produces to the other person, or gives the other person access to, a document containing the information; or
  3. discloses the information to the other person in another way.

287 Application

This division applies to a person who has gained, gains, or has access to, confidential information relating to a child through involvement in the administration of this Act.

  1. [28]
    These provisions are in Part 9 of that Act, and ss 287 and 288 are found in Division 2 of that Part.
  2. [29]
    The following definition is found in Schedule 4 of the YJ Act:

identifying information, about a child, means information that identifies the child, or is likely to lead to the identification of the child, as a child who is being, or has been, dealt with under this Act.

Example—

Each of the following is identifying information about a child if it identifies the child, or is likely to lead to the identification of a child, as a child who is being or has been dealt with under this Act—

  1. (a)
    the child’s name, address, school or place of employment;
  1. a photograph, picture, videotape or other visual representation of the child or someone else.
  1. [30]
    Mr Scott also pointed out that s 3 of the YJ Act established a charter of youth justice principles which underlie the operation of that Act; which include the promotion of the physical and mental wellbeing of children; treatment of children with dignity and respect; and (in the case of a child detained in a detention centre) giving the child privacy that is appropriate in the circumstances including, for example, privacy in relation to the child’s personal information.[10]
  2. [31]
    It will be apparent from these provisions that the issue of present relevance which the delegate was required to determine was whether the information, disclosure of which was refused, was exempt information, because s 288 of the YJ Act prohibited its disclosure.
  3. [32]
    It can be difficult to determine whether a question relating to the application of a statutory provision to facts found by a decision maker is one of law or fact. It is therefore convenient to examine the appellant’s contentions as to errors on the part of the delegate; and if error is found, to determine whether the appellant has appealed on a question of law.

The effect of s 288 of the YJ Act

  1. [33]
    The legislative provisions set out earlier show that information is exempt information if its disclosure is prohibited by s 288. The critical question therefore is the scope of the prohibition found in that section. Consistent with Mr Scott’s submission, it is appropriate to commence with an examination of the text and language of the statutory prohibition, recognising that consideration of the context, including the purpose and policy of the provision, may also be required.[11] This task is made more complex by qualifications the statute imposes on s 288; and by the use of defined expressions.
  2. [34]
    Section 288 is affected by s 287, which makes the prohibition in s 288 apply to a person who has gained confidential information relating to a child through involvement in the administration of the YJ Act. It is also affected by s 283, which restricts its operation to confidential information relating to a child who is being, or who has been, dealt with under that Act. Thus the prohibition on intentional disclosure of “the information” found in s 288 is restricted to confidential information relating to a child, referred to in ss 283 and 287.
  3. [35]
    The expression “confidential information” relating to a child found in both s 283 and s 287 is defined, in that context, in s 284. There is no reason to think, and it has not been suggested, that the definition in s 284 does not apply to the expression used in each of these sections. Thus these two sections are to be read as if the definition were inserted in each of them; and each section should then be construed in its context.[12] There is nothing within either section to suggest that the definition should be read down in some way. Indeed, the language of each section, echoing both the defined expression and the qualification relating to a child, strongly indicates that their effect was to be determined by reference to the definition.
  4. [36]
    The definition of confidential information of this kind is, in form, an “inclusive” definition. One included meaning is “identifying information about a child”. In Schedule 4, there is a relevant definition for identifying information, set out earlier. Sections 283 and 287, and the prohibition in s 288, cannot be understood without reference to that definition.
  5. [37]
    It is unnecessary to determine whether the definition of “confidential information” is exhaustive. If it is, then it would not be appropriate to restrict the definition by reference to the defined term.[13] If the definition is intended to extend the meaning of the defined term, then it would seem to follow that the extension should also not be restricted by a decision maker’s view of the ordinary meaning of the defined term.[14] There is nothing in the definition itself to warrant a reading down of its language.
  6. [38]
    Although the expression “confidential information” does not appear in s 288, nevertheless that section forms part of the context. The section does not indicate that the definition should be read restrictively. A prohibited form of conduct is the disclosure of the information. The term “disclose” is for these purposes given a number of meanings in s 286. Two relate to disclosure (oral, or in some other way); and the third speaks of producing, or giving access to, a document. The structure of the definition suggests an intention to extend the term defined beyond its ordinary meaning, making it unlikely that the definition could be restricted by reference to the defined term (as stated, an inappropriate course in any event). The prohibition extends to the recording or use of such information, inevitably by a person who already possesses it. Thus the section prohibits a number of forms of conduct in relation to information defined as confidential information, relating to a child. The context provided by Division 2 as a whole shows a comprehensive prohibition on conduct which might lead to the use or disclosure of such information; with a number of carefully drawn exceptions.
  7. [39]
    Section 288 contains a number of prohibitions. By reference to the language of that section, and the definitions and qualifications found in the YJ Act, one prohibition might be formulated as being that a person to whom the section applies must not “record or use, or intentionally disclose or produce to another person a document containing information about a child that identifies the child, or is likely to lead to the identification of the child, as a child who is being, or has been, dealt with under this Act, or give to another person access to such a document”. Neither the prohibition itself, nor the broader context provided by the statute, provide a basis for restricting the prohibition. An examination of the text of the statute, including the definitions read in the context of the sections which draw on them, would show that the prohibition on disclosure found in s 288 would apply to confidential information, relating to a child, as the expression is defined, without further restriction. That conclusion draws some support from some of the youth justice principles, said to underlie the operation of the YJ Act.
  8. [40]
    The Commissioner’s delegate did not pay sufficient attention to the effect of the language used in s 288, and the definitions read in the context of that section and related provisions of the YJ Act. Her approach has been to modify the effect of that language, by reference to her view of the meaning of terms which are defined, without, in my opinion, paying proper attention to the effect of the definitions. In my respectful opinion, her approach was erroneous, and has led to a wrong conclusion about the effect of s 288.

Other submissions

  1. [41]
    Given the approach ultimately taken by Mr Scott, it is unnecessary to consider authorities from other jurisdictions.
  2. [42]
    The submission on behalf of the ABC that the construction of s 288 for which Mr Scott contended would result in a blanket ban of media reporting of offending by young children is too wide. The prohibition only applies to a person who has access to confidential information relating to a child through involvement in the administration of the YJ Act.[15] Nor does reliance on the pro-disclosure bias of the RTI Act affect the construction of the prohibition found in s 288 of the YJ Act.

Appeal on a question of law

  1. [43]
    Under s 119 of the RTI Act, a participant in an external review is given a right to appeal to this Tribunal against a decision of the Information Commissioner, but only on a question of law.
  2. [44]
    In support of his submission that the appeal was on a question of fact, Mr Chen referred to a passage from the judgment of Fullerton J in Jane Doe.[16] The passage relied upon by Mr Chen records a statement by Gobbo J in Bailey v Hinch,[17] where his Honour said, “[i]n my view, the operation of the words in question [being ‘identify’ or ‘likely to identify’] is a matter of fact in each case”. There is a statement to similar effect later in the reasons of Fullerton J.[18]
  3. [45]
    It may be accepted that the question whether material identifies a person is a question of fact. The findings of the delegate on that question are not in issue in the appeal. What is in issue is the test used by the delegate for determining whether, in light of those findings, disclosure of the information would be in breach of the prohibition in s 288 of the YJ Act. That test is a result of the construction of the delegate of the relevant statutory provisions. It is a determination of the legal effect of those provisions, rather than whether the facts came within the meaning of an expression found in a statute, as ordinarily understood.
  4. [46]
    The distinction between questions of fact and questions of law has presented difficulty for some time. In Collector of Customs v Pozzolanic Enterprises Pty Ltd,[19] the Full Court of the Federal Court formulated five propositions for determining whether a question was one of law or fact. The second proposition is that the ordinary meaning of a word, or its non-legal technical meaning, is a question of fact. The fourth is that the effect or construction of a term whose meaning or interpretation is established, is a question of law.
  5. [47]
    The propositions formulated in Pozzolanic were considered by the High Court in Collector of Customs v Agfa-Gevaert Limited,[20] where the Court said of them that such general expositions of the law are helpful in many circumstances, but they lose a degree of their utility when the phrase or term in issue is complex, or the inquiry that the primary decision-maker embarked upon is unclear. The Court also questioned the distinction between the second and fourth propositions formulated by the Federal Court; but found it unnecessary to resolve that issue. More recent cases have favoured the view that choosing between two meanings of a statutory provision, or resolving uncertainty as to the meaning of a statutory word or expression, involves a question of law.[21] In my view, the question in this appeal requires resolution of the meaning of a statutory expression, or perhaps more accurately, a statutory provision. It is thus an appeal on a question of law.
  6. [48]
    The third proposition formulated in Pozzolanic is that the meaning of a technical legal term is a question of law. In the YJ Act, the expression “confidential information” in relation to a child is given a special meaning, through its definition, which in turn includes another defined expression. In the Act, it thus has a technical legal meaning. At the heart of this appeal is the correct meaning of that expression. For that reason too the appeal is an appeal on a question of law.
  7. [49]
    Moreover, the determination of the meaning of that expression required the application of the correct approach to statutory construction, and a consideration of the interaction of statutory provisions and definitions. It is difficult to see how it could be said that this was a question of fact, and not of law.
  8. [50]
    Mr Chen also relied upon a statement by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation,[22] that if different conclusions are reasonably possible as to whether facts fell within the ordinary meaning of words as determined by a Court, it is necessary to decide which is the correct conclusion; and that is a question of fact. It is clear from his Honour’s reasons that the statement was made with reference to words which were not defined in the statute, and used in their ordinary sense. It is not of assistance in the present case.

Conclusion

  1. [51]
    In my view the appellant has established that the delegate erred in law in reaching the conclusion that disclosure of the information the subject of the proceedings was not prohibited by s 288 of the YJ Act. The appeal should succeed.
  2. [52]
    The parties submitted that, if that conclusion were reached, the matter should be remitted to the Commissioner, with a direction to reconsider the applications in light of these reasons. It is appropriate to follow this course.
  3. [53]
    The Tribunal’s orders in each appeal will be as follows:
    1. The appeal is allowed.
    2. The application and review are remitted to the Information Commissioner, to be reconsidered in light of these reasons.

Footnotes

[1] See s 89 of the RTI Act; and the definition of “agency” in s 14; see also the definition of “department” in s 33 of the Acts Interpretation Act 1954 (Qld).

[2] See Australian Broadcasting Corporation and Department of Child Safety, Youth and Women [2018] QICmr 47 (21 November 2018) (ABC reasons) at para 14; Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women (Third Party) [2018] QICmr 48 (29 November 2018) (Seven reasons) at para 12.

[3] See Seven Network (Operations) Limited and Logan City Council [2018] QICmr 21 (11 May 2018) (Seven and Logan CC) at paras 43ff.

[4] https://en.oxforddictionaries.com/definition/confidential (accessed on 5 November 2018).

[5] See the ABC reasons at para 40; Seven Network reasons at para 26.

[6] [2018] WASC 47.

[7] [2018] NSWSC 1996.

[8] See the definition of “exempt information” in Schedule 5; and s 48.

[9] See s 14(4) of the Acts Interpretation Act 1954 (Qld).

[10] See Schedule 1 of the YJ Act, ss 2, 3, 21(e).

[11] See Alcan (NT) Alumina Pty Ltd v Commissioner of State Revenue (Vict) (2009) 239 CLR 27 at 46‑47 [47]; cited in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 388 [23].

[12] See Kelly v The Queen (2004) 218 CLR 216, 253; [2004] HCA 12 at [103] per McHugh J; and the discussion in Pearce & Geddes Statutory Interpretation in Australia (8th ed, 2014, online version) at [6.58].

[13] See Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 419; discussed in Pearce & Geddes at [6.59].

[14] This case may be an example of a definition of a term which lacks specific content, in the sense that information is made confidential by some circumstance imposing an obligation on a person not to disclose it; the obligation in the present case coming from s 288; and the definition therefore being intended to identify by reference to content the information which is not to be disclosed. It is somewhat analogous to the type of definition considered in SGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, 250-251; [2013] FCAFC 71 at [69]-[72]. On that basis the better view would be that the definition is exhaustive.

[15] See s 287 of the YJ Act.

[16] [2018] NSWSC 1996 at para 56.

[17] [1989] VR 78, 93.

[18] See [2018] NSWSC 1996 at para 58.

[19] (1993) 43 FCR 280, 287.

[20] (1996) 186 CLR 389, 396.

[21] See Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697, 709-711; [2013] NSWCA 145 at [52]-[64] per Beazley ACJ; and in particular, of the cases there cited, Industry and Research Development Board Bridgestone Australia Ltd (2001) 109 FCR 564 at [54]; and Screen Australia v EME Productions No 1 (2012) 200 FCR 282 at [42].

[22] (1956) 94 CLR 509, 512.

Close

Editorial Notes

  • Published Case Name:

    Department of Youth Justice v Office of the Information Commissioner, Seven Network (Operations) Ltd and Department of Justice and Attorney-General; Department of Youth Justice v Office of the Information Commissioner and Australian Broadcasting Corporation

  • Shortened Case Name:

    Department of Youth Justice v Office of the Information Commissioner

  • MNC:

    [2019] QCATA 143

  • Court:

    QCATA

  • Judge(s):

    Member Lyons

  • Date:

    29 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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