FLK v Information Commissioner
[2021] QCATA 46
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- FLK v Information Commissioner[2021] QCATA 46
- Add to List
FLK v Information Commissioner[2021] QCATA 46
FLK v Information Commissioner[2021] QCATA 46
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | FLK v Information Commissioner [2021] QCATA 46 |
PARTIES: | FLK (appellant) v office of the information commissioner (first respondent) Commissioner of police (second respondent) |
APPLICATION NO/S: | APL350-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 29 April 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO CHILD’S BEST INTERESTS – application on behalf of child for copy of transcript of child’s interview with police – whether disclosure of the information would not be in the child’s bests interests – whether error of law by the first respondent Information Privacy Act 2009 (Qld) s 67(1) Right to Information Act 2009 (Qld) s 47(3)(c), s 50 Evidence Act 1977 (Qld) s 93A, s 93AA Powell v Queensland University of Technology [2018] 2 Qd R 234 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Self-represented |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]This is an appeal from a decision of the first respondent. In January 2018, the child of the appellant was interviewed by police in relation to an allegation of conduct which was being investigated as a possible criminal offence. A transcript of that interview was prepared. Subsequently the appellant requested on behalf of the child from the second respondent access to a range of documents under the Information Privacy Act 2009 (Qld) (“the IP Act”), in terms which encompassed the transcript. The second respondent determined (relevantly) that the transcript was exempt from disclosure under the IP Act, and under the Right to Information Act 2009 (Qld) (“the RTI Act”).[1] The applicant appealed to the first respondent against that decision so far as it related to that transcript. On 6 December 2019, the first respondent varied that decision, and concluded that the second respondent was entitled to refuse access to the document to the applicant under the IP Act s 67(1), and under the RTI Act s 47(3)(c). By an application filed on 13 February 2020, the applicant appealed to the Appeal Tribunal from that decision.
- [2]Under the IP Act s 132 and under the RTI Act s 119, the appellant is entitled to appeal to the Appeal Tribunal from the decision of the first respondent. The appeal is only on a question of law, and may only be by way of a rehearing. The appellant has filed written submissions in support of the appeal. The first respondent filed short formal submissions to assist the Appeal Tribunal, but otherwise abided the decision of the Appeal Tribunal. The second respondent filed submissions supporting the decision of the first respondent, and submitted that no error of law had been shown in that decision.
Background
- [3]The child in question was four years old at the time of the interview. The appellant made her available for interview by the police, and the interview took place, from which the transcript was prepared. The appellant was not present at the interview, in accordance with the practice of police when conducting such interviews, although she was subsequently told by police of the general effect of the interview.[2] She has consistently claimed that she agreed to make the child available for interview on condition that she be provided with the transcript of the interview, but the first respondent made no finding about this matter and on an appeal on a question of law I cannot make any finding of fact.
- [4]There is no current investigation by the second respondent of any potential criminal offence in relation to the child’s statement. However, if an offence is one covered by the Criminal Code, there is no limitation period on the prosecution of such an offence, and the possibility exists that the investigation could become active again, and lead in the future to the prosecution of a person on indictment for an offence, perhaps when the child is older.[3] If there is such a prosecution, the interview could well be admissible in evidence under the Evidence Act 1977 (Qld) s 93A, depending on the relevance of its contents to the offence charged.
Appellant’s submissions
- [5]The appellant submitted that, as the parent and the person with sole parental responsibility for the child, it was in the best interests of the child for her to be appraised of the issues giving rise to the interview, so that she could discharge her responsibilities to protect the child, and the ensure the child’s health and wellbeing. She submitted correctly that the objects of the relevant legislation is to give a right of access to information held by the government unless, on balance, it is contrary to the public interest to give the access. She relied on the IP Act s 67(2)(a) and (b), and the RTI Act s 47(2)(a) and (b). Those subsections provide that the grounds on which access to information may be refused are to be interpreted narrowly, and that an agency (such as the second respondent) may give access to information even if access may also be refused under the Act. The second respondent noted at [34] that the second proposition did not apply to the second respondent on external review, which was correct. There is no reason to think that the second respondent was not well aware of the former proposition.
- [6]One of the matters taken into account by the second respondent was that the content of the transcript could be used as child exploitation material for the purposes of the Criminal Code s 207A. In response, the appellant submitted that the absence of any continuing investigation by the police necessarily means that the transcript did not describe acts which fell within the definition of child exploitation material, so that that involved an error of law. However, as I have pointed out, the absence of a continuing investigation does not necessarily mean that the child in the interview did not describe acts such that the transcript could be used as child exploitation material. I cannot review on the merits the finding of fact as to the content of the interview, and the absence of a continuing investigation does not demonstrate as a matter of law that that finding was wrong.
- [7]The appellant submitted that there was no evidence that exceptional circumstances existed to show that this was a situation where the child’s parent was not in the best position to determine what was in the best interests of the child. If that correctly reflected the relevant test, there could be advanced such a submission, but the legislation does not in terms attribute any special significance to the opinion of the child’s parent as to what is in the best interests of the child. The RTI Act provides in s 50:
- (1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
- (2)Despite schedule 3, section 12(2) and schedule 4, part 2, item 8, in relation to an application by or for a child for access to a document, the Parliament considers it would, on balance, be contrary to the public interest to give access to the document to the extent it comprises personal information of the child if the disclosure of the information would not be in the child’s best interests.
- (3)In considering whether disclosure of the information would not be in the best interests of the child, the agency or Minister must, unless the access application was made for the child, have regard to whether the child has the capacity to—
- (a)understand the information and the context in which it was recorded; and
- (b)make a mature judgment as to what might be in his or her best interests.
- (4)However, despite an agency or Minister being able, under section 47 (3)(c), to refuse access to all or part of a document, the agency or Minister may decide to give access.
- (5)In this section—
child means an individual who is under 18 years.
- [8]It is clear that the section makes no reference to the opinion of a parent of a child as to what would be in the best interests of a child, and does not provide that an agency is not to depart from that opinion save in exceptional circumstances. The question of whether disclosure of the information would or would not be in the best interests of the child is I consider under s 50(2) to be decided objectively, by reference to identifiable objective factors either advancing or damaging the interests of the child. Subsection (3), which applies where an access application has been made by a child personally, shows that the opinion of the child is not to be conclusive as to where the best interests of the child lie. That is consistent with the proposition that the test under subsection (2) is an objective one.
- [9]I do not consider that the Assistant Information Commissioner in [30] of the reasons was stating a proposition of law, that a decision maker would not depart from the opinion of a parent as to where the best interests of a child lie except in exceptional cases. The RTI Act gives no such special significance to the opinion of the parent. Rather, I consider it was an observation of a factual proposition, that one would expect that ordinarily an objective determination of where the best interests of a child lay would correspond to the opinion of a parent of the child. So understood, it does not reveal any error of law by the first respondent.
- [10]It was submitted that there was no evidence to support the proposition that disclosure of the transcript may impact on the child’s willingness to speak to the police in the future, and may prejudice the conduct of future investigations by the police in relation to the child. This matter was dealt with in the reasons of the first respondent at [24], [25]. Commonly in a prosecution of a sexual offence against a child a parent of the child, usually the mother, gives evidence as a witness about the circumstances of the disclosure of the offence to the parent. It is in principle undesirable for witnesses in a criminal trial to discuss their evidence with each other prior to the trial, because of the risk of their recollection becoming contaminated in that way by the recollections of others. If it emerges at a trial that such a thing has occurred, it can be very damaging to the credibility of the witnesses. Because the prosecution of a sexual offence turns almost inevitably on the credibility of the complainant, anything which can damage that credibility risks the failure of the prosecution.
- [11]If a child has been the victim of an offence, it can be seen that, at least ordinarily, it is in the best interests of the child for a prosecution of that offence to succeed. It is therefore not in the interests of the child for anything to occur which may prejudice the success of that prosecution. Apart from the general proposition that witnesses should not be discussing evidence, there is a particular risk with the parent of a complainant at such a trial, because the parent will not be indifferent between the child and the defendant. Ordinarily one would expect the parent to be also anxious to secure the conviction of the offender,[4] and in those circumstances there is a risk that the parent will engage in what can be characterised at a trial as coaching the child, that is, assisting the child to say the sort of thing which the parent expects is likely to secure the conviction of the defendant.
- [12]If it emerges at a trial that this has occurred, or if it might have occurred, it is generally thought that that is damaging to the credibility of the complainant, and harms the prospects of success of the prosecution. The best defence against this risk is if the parent, if asked, can say honestly that she has never seen a copy of the transcript of the s 93A interview, and does not know the detail of what it contains.
- [13]As to a willingness to disclose to police in the future, some children disclose full details readily both to parents and to police, but it is very common for child victims to be reluctant to speak openly about such matters. Some are more embarrassed when speaking to police, others are more reluctant to disclose to parents, perhaps particularly where the offender is a person known to the parent, which is commonly the case. No doubt for this reason police have a practice of not having a parent present at the interview, just as courts generally do not allow a parent to be a support person for a child witness. This may not apply in every case, but the proposition that there is a risk that it could occur in a particular case is obvious enough.
- [14]These are factual conclusions reached by the first respondent, not on the basis of formal evidence, but of the basis of logical reasoning from general knowledge. There is no reason why the first respondent was not able to proceed on that basis. The first respondent was not bound by the rules of evidence,[5] and I do not consider that there was any error of law involved in these factual conclusions.
- [15]The appellant submitted that the transcript would not be provided by her to the child, or discussed with the child, but even if that genuinely represents her present intention, there would be no guarantee that she would not later change her mind, or would not be prompted to engage in what could still be characterised as coaching the child without explicit reference to the transcript.
- [16]The appellant also disputed the finding at [20] that she was already sufficiently appraised of the relevant issues in order to care for and protect the child. This is a finding of fact which cannot be challenged on this appeal, except on the basis that it was not open for the first respondent reasonably to make such a finding in the circumstances. The appellant’s submissions do not contain any reasoned submission in support of such a proposition, just a mere assertion that that is not the case. This also does not disclose any error of law.
- [17]Finally the appellant proposed a form of disclosure which she submits would enable her to read the transcript without the risk of its being misused. This is not a matter which can be raised on an appeal limited to a question of law. Such an appeal is of the nature of judicial review, and depends on the appellant being able to show that there was an error of law made by the first respondent, as a result of which the decision of the first respondent should be varied or set aside.[6] Hence new issues dealing with matters not ventilated before the first respondent cannot be raised on the appeal. In any case, the effect of the IP Act is that, once information has been disclosed, it comes under the control of the person to whom it has been disclosed. There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination. There was therefore no power in the first respondent to adopt the proposal set out in the appellant’s submissions.
Conclusion
- [18]The appellant has therefore failed to establish that there was any error of law on the part of the first respondent in the decision of 6 December 2019. The respondent, apart from submitting that no error of law had been shown, submitted that disclosure of the statement was in any event prohibited under the Evidence Act 1977 (Qld) s 93AA. That section makes it an offence to have possession of, supply to another person or copy or permit a person to copy a s 93A criminal statement. A s 93A criminal statement is defined in subsection (3) as a statement made to a person investigating an alleged offence, given in, or in anticipation of, a criminal proceeding about the alleged offence, and that is potentially admissible under s 93A. These would all appear to be satisfied by a recording of the interview with the child.
- [19]The difficulty with this argument is that the section draws a distinction between a “section 93A criminal statement” and a “section 93A transcript”, and does not provide that the former includes the latter, nor does it make it an offence to supply or possess a s 93A transcript. It is the statement that is admissible under s 93A, not the transcript of the statement. At a trial, a copy of the recording becomes an exhibit and is played to the jury; either the jury are not shown a transcript, or they are warned that the evidence is what they hear and see, not what is written in the transcript. The transcript is not admissible under s 93A, so the third element of the definition is not satisfied.[7]
- [20]Although the Assistant Information Commissioner mentioned s 93AA in footnote 28, it does not appear from the reasons that the decision turned on the proposition that this section applied to the transcript rather than to the statement, or that this was a step in a chain of reasoning leading to the decision. In those circumstances, the decision was not shown to have involved any error of law.
- [21]It has taken the legislature a long time to come properly to grips with statements under s 93A. Although that section was introduced in 1989, it was not until 2003 that s 93AA was introduced, and a provision that s 93A tapes be played in closed court was not introduced until last year.[8] It would make sense for the legislative protection of s 93AA to be extended to a s 93A transcript, but as the Act stands I do not consider that it does. It must be kept in mind that this is a penal section, and it should not be given a wider operation than its words clearly justify. I do not consider that this argument assists the second respondent, or provides any additional ground not to release a copy of the transcript.
- [22]The second respondent also relied on the propositions that release of the transcript would contravene the prohibition in the Child Protection Act 1999 (Qld) s 189, and would be information that would prejudice the effectiveness of lawful methods of investigating a contravention or possible contravention of the law, in that it would disclose the questioning methodology of the investigating police, so as to make relevant the RTI Act schedule 3, s 10(1)(f). In the circumstances, it is not necessary for me to deal with these arguments.
- [23]Accordingly, it is appropriate for the appeal from the decision of the first respondent to be dismissed. The first respondent reserved its position in relation to costs, so I will give directions as to the provision of written submissions as to costs.
- [24]The decision of the Appeal Tribunal is that:
- The appeal from the decision of the first respondent on 6 December 2019 is dismissed.
- If any party seeks an order for costs, that party file and serve on each other party submissions in writing outlining the order sought and why it should be made within twenty one days from the date of this decision.
- If any party does file and serve such submissions, any party against whom an order for costs is sought may file and serve on the party seeking costs submissions in response within twenty-one days of the submissions being served.
- The party seeking an order for costs may file and serve submissions in reply in fourteen days from service of the submissions in response.
- If submissions seeking costs are filed, the Appeal Tribunal will decide the question of costs on the papers on a date after all submissions have been filed.
Footnotes
[1] Twenty-seven documents were identified as within the scope of the request, of which two were released in full, seventeen released with redactions, and the remaining eight not released.
[2] Reasons of the first respondent [22]. The second respondent says that this occurred by email on 26 February 2018: Submissions of second respondent para 27.
[3] I have known of at least one case where such a thing occurred, where a relatively contemporaneous interview with the complainant was put in evidence under the Evidence Act 1977 (Qld) s 93A.
[4] I have known rare cases where the parent is more interested in supporting the defendant. In that case, there is the risk that the transcript will be handed over to the defendant prematurely, and before the investigation is complete.
[5] The RTI Act s 95.
[6] Powell v Queensland University of Technology [2018] 2 Qd R 234 at [44], [55].
[7] The possibility that, under certain circumstances, the transcript might be admissible as secondary evidence of the “statement” is not, I think, sufficient to make it “potentially admissible.”
[8] By the Justice and Other Legislation Amendment Act 2020 s 77, inserting a reference to s 93A statements in the Evidence Act 1977 (Qld) s 21AU.