Deemal-Hall v Office of the Director of Public Prosecutions
[2024] QCATA 131
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- Deemal-Hall v Office of the Director of Public Prosecutions[2024] QCATA 131
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Deemal-Hall v Office of the Director of Public Prosecutions[2024] QCATA 131
Deemal-Hall v Office of the Director of Public Prosecutions[2024] QCATA 131
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Deemal-Hall v Office of the Director of Public Prosecutions [2024] QCATA 131 |
PARTIES: | gwendoline cecily deemal-hall (applicant/appellant) v office of the director of public prosecutions (respondent) |
APPLICATION NO/S: | APL335-23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 17 December 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – appeal from a decision of the Information Commissioner – whether the commissioner applied the incorrect test for the relevant administration of justice criteria – whether the “administration of justice” includes the Royal prerogative of mercy – whether decision legally unreasonable HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where application for disclosure of information under the Information Privacy Act 2009 (Qld) – whether the commissioner made a decision incompatible with human rights – where the appellant relies on the right to “freedom to seek, receive and impart information” afforded by the Human Rights Act 2019 (Qld) – where the rights are to be understood in context of the statutory scheme of right to information – where the decision was not incompatible with human rights Right to Information Act 2009 (Qld) s 49 Human Rights Act 2019 (Qld) s 8, s 13, s 21(2), s 25(a) Allen v Queensland Building and Construction Commission [2024] QCA 24 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 Australia Pacific LNG Pty Ltd v The Treasurer [2019] QSC 124 Holzinger v Attorney-General (2020) 5 QR 314 Marshall-Holst v Office of the Information Commissioner [2017] QCATA 28 Minister for Immigration v SZVFW (2018) 264 CLR 541 Willsford v Brisbane City Council (1996) 3 QAR 368 XYZ v Victoria Police (2010) 33 VAR 1 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
Appellant: | S T Lane instructed by Prisoners’ Legal Service |
Respondent: | L Benjamin legal officer of the Department of Justice and Attorney-General |
REASONS FOR DECISION
- [1]On 30 August 2022 the appellant made an application to (relevantly) the respondent for access to certain documents under the Information Privacy Act 2009 (Qld) (“the IP Act”).[1] On 14 October 2022 the respondent decided to disclose some of the requested documents, and some of the documents in part, but refused access to the balance of the documents. On 11 November 2022 the appellant applied to the Office of the Information Commissioner to review that decision, but on 11 September 2023 the decision was confirmed by a principal review officer.[2]
- [2]On 10 October 2023 the appellant filed in the Tribunal an Application for leave to appeal or appeal against that decision. By the IP Act s 132 the appellant has a right to appeal to the Appeal Tribunal from the decision of the Office of the Information Commissioner, but only on a question of law. Significantly, the appeal must be “on” a question or questions of law, not just involve such a question or questions, so that the very subject matter of the appeal must be a question of law.[3]
Decision on the Review
- [3]The Commissioner found that the information in issue comprised the names (in some instances, only the middle name) and other personal details of individuals other than the appellant, and statements and records of interview obtained by police from individuals other than the appellant: [13]. The issue for determination was identified as whether access to the information in issue may be refused on the ground that disclosure would, on balance, be contrary to the public interest: [14]. The Commissioner summarised the relevant law at [16]–[19], in a way which was not the subject of direct challenge in submissions for the appellant. The question came down to whether the disclosure of the information would on balance be contrary to the public interest under the Right to Information Act 2009 (Qld) (“the RTI Act”) s 49. That section provides a mechanism for conducting that assessment by reference to the factors set out in Schedule 4 to that Act.
- [4]The Commissioner identified as relevant factors favouring disclosure those in Schedule 4 Part 2 Items 1, 3, 7, 10, 11, 16 and 17. The Commissioner considered whether the fact that the material had been disclosed to the appellant at the time of her prosecution was a factor favouring disclosure, and concluded that it was not. Factors favouring non-disclosure were identified as those in Schedule 4 Part 3 Items 3 and 13, and in Part 4 Item 6. The Commissioner assigned weight to the various factors, and concluded that, on balance, the factors favouring non-disclosure outweighed the factors favouring disclosure.
Ground of Appeal
- [5]The appellant listed twelve grounds of appeal in a schedule to her application, some of which struck me as obviously not raising questions of law. When providing written submissions however the appellant substituted eight new grounds for the twelve listed previously, and the matter was argued on the basis of the new grounds. These were:
- The decision maker’s decision involved an error of law in that the decision maker, in considering the public interest, applied the wrong legal test for the relevant administration of justice criteria.
- The decision involved an improper exercise of power in that, in purporting to exercise the power conferred by the IP Act, the decision maker failed to take into account relevant considerations.
- The decision involved an improper exercise of power in that, in purporting to exercise the power conferred by the IP Act, the decision maker took into account irrelevant considerations.
- The decision involved an improper exercise of power because the decision was so unreasonable that no reasonable person could have so exercised the power.
- The respondent is a public entity for the purposes of the Human Rights Act 2019 (Qld) (“the HR Act”).
- The decision was unlawful, for the purposes of s 58(1)(a) of the HR Act, in that the decision was (and is) incompatible with the appellant’s human rights.
- The decision is incompatible with human rights in that, in contravention of s 21(2) of the HR Act, it resulted in the appellant being denied her right to access to documents and information relevant to her.
- Pursuant to s 59 of the HR Act, the appellant seeks an order that:
- The decision of 11 September be set aside and remitted to the decision maker to be dealt with according to law; and
- The application for external review be remitted to the Office of the Information Commission to be decided according to law.
- [6]It will be immediately apparent that the “human rights” grounds are not a set of separate grounds identifying questions of law, but in substance a summary of an argument that the Commissioner breached the appellant’s human rights. This may or may not give rise to a question of law. In effect, I am asked to tease out the question or questions of law raised by the appellant from the submissions. That is not the way in which an appeal under s 132 is supposed to be conducted. As well Grounds (a) to (c) as they stand are inadequately particularised, although such particulars can be identified in the submissions in writing of the appellant.
- [7]In respect of Ground (b) above, the submissions identify that what was relied on as a matter not taken into account, although favouring access, was the one in Schedule 4 Part 2 Item 17, that disclosure could reasonably be expected to contribute to the administration of justice for a person. It was submitted that having access to the brief of evidence would only assist in the administration of justice for the appellant, and that the Commissioner had erred by considering the general fairness issues as they arose at the time the appellant initially had access to the brief of evidence. Reference was made to the reasons at [24].
- [8]The first difficulty with this submission is that the Item 17 factor was taken into account by the Commissioner, although afforded only low weight.[4] The question of how much weight to attribute to it does not give rise to a question of law. At [24] the Commissioner was considering submissions on behalf of the appellant referring to the obligations on the prosecution to make disclosure to the defence in the context of a criminal trial, and considering whether that engaged Items 10, 16 and 17. But that was, as the Commission concluded, a different situation.
- [9]There is however a more fundamental difficulty. Item 17 refers to “the administration of justice” but the submission of the appellant has been advanced by reference to a desire to formulate a petition to the Governor for a pardon. This is not in my opinion something which involves the administration of justice. It is a process for seeking the exercise of the royal prerogative of mercy. The trial of the appellant concluded years ago. There was an appeal to the Court of Appeal, which was dismissed,[5] and a further appeal by leave to the High Court, which was also dismissed.[6] It was those proceedings which involved the administration of justice for the appellant.
- [10]The appellant submitted that the reference to public confidence in the system of the administration of justice in the judgment of the Court of Appeal in Holzinger v Attorney-General (2020) 5 QR 314 at [62] showed that a petition for a pardon was part of the system for the administration of justice for an individual. I do not agree with that interpretation. What the Court was discussing there was the relevance of a consideration of the ordinary system of justice for an individual, which in that matter as here had consisted of a trial and the exhaustion of the rights of appeal, when deciding whether to refer a petition for mercy to the Court of Appeal under the Criminal Code s 672A. On the contrary, the whole thrust of the discussion of the issue in that judgment was that the consideration of the exercise of the Royal prerogative of mercy was something that stood outside the ordinary system of justice.
- [11]The passage quoted from Martens v Commonwealth of Australia (2009) 174 FCR 114 at [53] also does not show that a consideration of a petition for a pardon is part of the administration of justice. The point being made in the passage quoted is that it was relevant for the minister to consider the obligation of the Court of Appeal to perform its ordinary functions in the administration of justice for parties to litigation without having resources abstracted by the need to consider a petition for mercy. The point of the passage quoted from [70] was also that a reference to the Court of Appeal might be regarded by the minister as preferable to the immediate recommendation of a pardon, in order to preserve public confidence in the administration of justice, referring to the ordinary processes of trial and appeal. Properly understood, these passages also do not support the appellant’s argument.
- [12]In my opinion, Item 17 refers to the ordinary processes for the administration of justice for a person, and does not extend to cover the formulation of a petition to the Governor for her to exercise the prerogative of mercy. On that view, it was an error of law for the Commissioner to take this into account as falling under Item 17, but it was an error favouring the appellant, and in any event, it could have been another matter properly considered as a factor favouring access,[7] so it is not a reason for the Tribunal to interfere.
- [13]With regard to Ground (a), this was expressed as the Commissioner’s having taken into account the description of the concept of administration of justice in earlier decisions of the Commissioner which involved civil cases, which distorted the concept in the context of a criminal matter. Since I consider that the administration of justice does not, in a criminal context, extend to include an attempt to secure the exercise of the prerogative of mercy, this issue does not arise. But if the appellant were now facing a criminal charge, or preparing an appeal, it could be said that the issue became one of whether disclosing the information held by the agency would assist the appellant to pursue some aspect of her defence in a broad sense, or help her to evaluate whether a particular ground of defence was available or worth pursuing. Although not precisely the same test as formulated in Willsford v Brisbane City Council (1996) 3 QAR 368 at [17], it is essentially an expression of the same concept. It is something which is or might be helpful in conducting the appellant’s case in litigation, whether civil or criminal.
- [14]In any case, the Commissioner went on in [29] to analyse the matter on the basis that the formulation in Willsford had been satisfied, and in [47] referred to this as a factor favouring disclosure. So despite any doubts the Commissioner may have had, it was taken into account in the ultimate balancing exercise. It follows that no error of law was made as alleged here.
- [15]Apart from this, the Commissioner was well aware that the application was based on the proposition that the appellant should have the fullest possible access to the material provided in the past in order to prepare, as it was put, the best possible petition for a pardon. If it were suggested that there was some miscarriage of justice in relation to the trial, the best source for this would be the transcript of the trial itself, not the material provided to the defence at the time by the prosecution. The transcript is available to the appellant.[8] As noted in the submissions for the appellant, since the trial a partial defence has been introduced into the Criminal Code s 304B, and the inference is that that would have assisted the appellant had it been in place at the time. I expect the prosecution led evidence of ill-treatment at the trial, as providing a motive for what occurred.[9] But for my purposes that does not matter, because only a question of law can arise on the appeal.
- [16]The difficulty for the appellant, however, is that, under the IP Act, this is not the only relevant consideration when undertaking the exercise of balancing the factors to determine if the information should not be disclosed in the public interest. There is certainly a public interest in the availability, to a person facing a criminal charge, of information available to the prosecution, whether or not it would assist in the defence to the charge. The appropriateness of that information being provided at that time is well established, at common law and now under statute. That, however, is a different disclosure regime from that provided under the IP Act. The mere fact that certain information was regarded by the prosecution as properly disclosable to the defence under the applicable disclosure rules in that context[10] does not necessarily mean that all of that information will be properly subject to disclosure under the different provisions of the IP Act.
- [17]When assessing the public interest in disclosure, is difficult to see that there is the same public interest in a person who has been convicted, and whose appeals have been exhausted, having access to such information for the purpose of a petition to the Governor for a pardon as was the case when the person was facing trial on the charge, or preparing for an appeal. The context is different, so one would expect that the significance of the public interest would be different.
- [18]Apart from that, I do not consider that the mere fact that, under the pre-trial disclosure regime applicable to the appellant, certain information was provided to her in the past necessarily means that all of the same information will be properly disclosable to her now under the IP Act. The submissions of the appellant treated the mere fact of the prior disclosure as showing that there must have been an error in the decision of the Commissioner, but I do not consider that that follows. I agree with the approach of the Commissioner in the reasons at [32].
- [19]It was also submitted that the Commissioner had erred at [29] in saying that the processed of preparing a petition to the Governor would not be “impossible” in the absence of the disputed information.[11] At that point, the Commissioner was not posing a test for attributing significant weight to the factor, but rejecting a submission made by the appellant in the review. The submissions on appeal appear to misrepresent the context of the use of that term in the reasons. There is no substance to this ground.
- [20]Ground (c) alleged that irrelevant considerations had been taken into account. I accept that this can give rise to an error of law, and accept the authority of the passage cited from Australia Pacific LNG Pty Ltd v The Treasurer [2019] QSC 124 at [192]–[195]. As developed, however, this was an attempt to challenge the weight given to the factor that the information in issue was the personal information of other persons. This was made explicit at [44] of the submissions for the appellant. This ground was also advanced on the basis that the fact that this information had been provided to the appellant in the past necessarily meant that it was no longer confidential so far as she was concerned, and that meant that as a matter of law it had to be provided, or at least, the fact that it was the personal information of other people was no longer a relevant consideration.
- [21]I do not accept this iteration of that submission either. Whether the effect of the prior disclosure would be to prevent the other individuals from being able to restrain the release of the information as a breach of an obligation of confidence is not to the point when considering the operation of the balancing exercise under s 49. The information was identified by the Commissioner as personal information of other people, and there has been no challenge to that finding. That is something which engages Schedule 4 Part 3 Item 3, and indeed Part 4 Item 6. It follows that it cannot be said that, as a matter of law, it was to be given no weight.[12] Once one gets to that point, the question of how much weight is to be attributed to it is a matter for the Commissioner. It does not give rise to a question of law. There is no substance in ground (c).
- [22]Ground (d) alleged that the decision was an improper exercise of power on the basis that the decision was so unreasonable that no reasonable person could have made that decision. I accept that there is an implied limitation on the statutory power on the Commissioner to review the decision of the respondent, that the statutory power must be exercised within the bounds of reasonableness, and if that does not occur, the power has not been validly exercised. The appellant referred to the decision of Bond J (as his Honour then was) in Australia Pacific LNG (supra) at [155]–[160], and to a number of principles said to have been confirmed by the High Court in Minister for Immigration v SZVFW (2018) 264 CLR 541. As his Honour pointed out in Australia Pacific LNG, the High Court in SZVFW did not speak with one voice. His Honour at [161] appears to have summarised what can be drawn from the various judgments.
- [23]The respondent appeared to submit that this ground was not available in an appeal under s 132, because the weight to be given to any relevant factor did not give rise to a question of law. Reference was made to the decision in Marshall-Holst v Office of the Information Commissioner [2017] QCATA 28 at [134]–[137]. I agree with what Thomas J, the then President of the Tribunal, said at [135]–[137], and note that it included the proposition that “the decision made was within the boundaries of the appropriate limits for the exercise of discretion” of the decision maker.[13] It is that question, which I consider does give rise to a question of law, that the appellant seeks to raise under this ground. This is by the process explained in Australia Pacific (supra). It follows that this is a question which can be raised as a matter of appeal under s 132 of the IP Act.[14]
- [24]It is clear that a good deal depends on the objects of the relevant statute, and on the applicable provisions. In the present case, the object of the IP Act is set out in s 3:
- The primary object of this Act is to provide for—
- the fair collection and handling in the public sector environment of personal information; and
- a right of access to, and amendment of, personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended.
- The Act must be applied and interpreted to further the primary object
- [25]It follows that the object of the IP Act so far as it relates to the provision of access to personal information is limited by a consideration of the public interest. That is to be assessed in accordance with the process set out in the RTI Act for assessing where the balance of the public interest lies. That process was, I consider, followed by the Commissioner in the present case.
- [26]The appellant’s submission was that, in circumstances where all the information sought was provided to her prior to her trial, there was no logical need to protect the privacy of the other people whose personal information was being withheld. She referred to the fact that the names of some of the other people were publicly available from reports of the appeal decisions, and that the names and details of some witnesses are available to anyone who cared to purchase a copy of the trial transcript. It was submitted that, as a result, there was no privacy to be protected. The Commissioner had failed to have proper regard to the circumstances that the appellant has previously had access to the very information sought now, and as a result the decision was so unreasonable that no reasonable decision maker would have made it.
- [27]The problem with this argument is that it treats personal information under the Acts as the equivalent of confidential information. In the case of confidential information, once it has been made public there is generally no basis on which further disclosure or use of it can be restrained by law. Considerations of privacy on the other hand do not disappear once some information has been disclosed, particularly where it has been disclosed in circumstances where the disclosure was required by law. Information which meets the definition of personal information in the IP Act s 12, or in the RTI Act, retains that nature, even if it has previously been disclosed to an applicant, and the significance of Item 6(1) in Part 4 of Schedule 3 is not by the Act confined to confidential personal information.
- [28]The RTI Act s 49(4) provides that the Items in Schedule 4 Part 4 are factors where disclosure could reasonably be expected to cause a public interest harm, although that does not make them conclusive in the balancing process. Item 6(1) provides: “Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead.” Item 6(2) excludes this if it is disclosure of personal information of the person applying for disclosure, but otherwise, disclosure of personal information is by the Act something which could reasonably be expected to cause a public interest harm. Although the subsection does not make that harm decisive, the RTI Act clearly contemplates that this is a factor which will be given at least some weight. In those circumstances it cannot be said to be irrelevant. Significantly, nothing about this provision limits its operation to confidential personal information.
- [29]I also note that the HR Act s 25(a) speaks of the right to privacy in the context of people’s personal information, in a way which is not limited to confidential personal information.
- [30]Although one can say that people providing statements to police for the purposes of a criminal investigation can be expected to have consented to the disclosure of that information to the defence if the matter goes to trial, I do not think it follows that they consent to any other disclosure of the information, to the appellant or anyone else. The trial was twenty years ago, and to the extent that material available then revealed personal information about other people, it is now largely protected by practical obscurity. Even if the trial transcript is available to the public, it comes at a large fee. I do not consider that the passage of time diminishes the significance of the right to privacy of other people; rather it reduces the significance of the intrusion into it in connection with the trial.
- [31]In my opinion the IP Act and the RTI Act, in general and in particular in s 49(4) of the latter, are inconsistent with the notion that the public interest in not disclosing the personal information of people other than the appellant should be given no weight, or be treated as irrelevant. Further, in the context of this legislation, I consider that it is not unreasonable to give that factor considerable weight, and that a conclusion that it outweighs the factors favouring disclosure of the information has not been shown to be so unreasonable that no reasonable decision maker would arrive at such a conclusion. It follows that I do not consider that this ground has been made out.
Human Rights Act
- [32]The appellant’s argument under this Act is based on the proposition that the HR Act s 21(2) confers by implication a right to obtain certain government-held documents and information, at least if the individual seeking this has a legitimate interest, on the authority of XYZ v Victoria Police (2010) 33 VAR 1 at [515]–[559]. Section 21(2) provides: “Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information … .” This is perhaps not an interpretation which leaps to the eye, but for present purposes I am prepared to find that the HR Act does include such a right. It is however not the only human right which is relevant in this matter. Section 25(a) provides: “A person has the right … not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with … .”
- [33]The argument was that, by not providing the requested information, the respondent, and the Commissioner, had acted or made a decision that was not compatible with the appellant’s human rights under s 21(2), so that they were in breach of s 58(1) of the HR Act, for which a remedy was available under s 59(2). It was submitted that this provided an alternative means of obtaining access to information separate from the rights under the IP Act and the RTI Act. Whether an Act or decision is compatible with human rights depends on whether it does not limit a human right, or limits a human right only to an extent that is reasonable and demonstrably justifiable in accordance with s 13. That section in turn provides in subsection (1) that:
A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
- [34]Subsection (2), which I need not quote, provide a list of factors which “may be relevant” in deciding whether the test in subsection (1) has been met. One of the difficulties I have with the HR Act is that it does not appear to deal with a situation where there are conflicting human rights of different people. This is not even mentioned in s 13(2). What happens when there is a conflict between a human right of A and a human right of B? That is the situation here: what the facts of this case show is a conflict between the human right of the appellant under s 21(2) and the human right of privacy of the people whose personal information the appellant is seeking to have disclosed to her. So far as I can see, the HR Act does not provide that one human right is more important than another human right.
- [35]The relevant provisions of the IP Act and the RTI Act provide a mechanism for resolving such a conflict, as it was resolved in the present case. When considering matters such as human dignity, equality and freedom the considerations are not all one way, despite the way the submissions for the appellant present the argument as if her human rights are the only ones that matter. The use of the term “equality” suggests that the human rights of one person should not necessarily prevail over the human rights of another person, or a number of other people. As might be expected from its short title, part of the function of the IP Act is to protect the privacy of individuals.
- [36]The IP Act and the RTI Act are similar to other legislation which has been adopted elsewhere in Australia. This suggests that the mechanism they provide for determining the extent of, and limitations on, the disclosure of information in the possession of public entities has general support among the legislatures of the free and democratic societies in Australia. I have considered the matters in the HR Act s 13(2), and also the factor that it will often be necessary for the Acts to resolve conflicts between the human rights of an applicant for disclosure and other persons whose personal information is also present in documents sought, and consider that the relevant provisions of the Acts provide limits on the human right under s 21(2) which can be demonstrably justified as reasonable. It follows that the decision of the respondent, and the decision of the Commissioner, were not in breach of the HR Act s 58(1)(a).
- [37]I should add that, in the course of arriving at that conclusion, I have read the consideration given to similar issues, but arising in a very different context, in the decisions of Freeburn J in Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 at [344]–[347], and of Smith DCJA in Pavlou v Brisbane City Council [2024] QDC 73 at [80]–[95]. Because of the different context, neither can be regarded as a precedent, but they do provide some background into what is for me an unfamiliar field.
- [38]The other aspect of the argument is whether, in making the decision, the respondent or the Commissioner gave proper consideration to a human right relevant to the decision: HR Act s 58(1)(b). This is a procedural requirement, the content of which was also considered in Austin BMI (supra), at [349]–[356]. I accept what his Honour said about the requirement in the last of those paragraphs.
- [39]In the present case, the Commissioner considered the appellant’s rights to disclosure under the HR Act s 32(2)(a) and s 34, and concluded correctly that there was no evidence that those rights had not been accorded to her at the applicable time. The Commissioner also considered the right in the HR Act s 21(2) and noted the observation of Bell J in XYZ (supra) at [573] that “it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.” This was a reference to the corresponding legislation in that state.
- [40]The appellant referred to a passage in that judgment containing this proposition, but submitted that compliance with the process in the RTI Act does not necessarily mean compliance with the process in s 13 of the HR Act. That may be correct in the abstract, but in the present case, where I have held that the processes and limitations on this human right in the RTI Act are consistent with the requirements of the HR Act s 13, and the Commissioner considered the point and reached the same conclusion, I consider that the Commissioner has, in a practical and common-sense way, identified the relevant human right, and considered whether the decision would be compatible with it. It follows that the appellant has shown no error of law in relation to the HR Act.
- [41]I should say one other thing. In this analysis I am proceeding on the basis that the effect of the provisions of the HR Act is that, when dealing with an external review of a decision on an application under the IP Act, the Commissioner must comply with the requirements of the HR Act. I am assuming that the HR Act does not provide a right external to the IP Act (and I suppose the RTI Act) to seek and obtain information held by a public entity. If I am wrong about that, however, it seems to me to follow that the Commissioner had no power to review the decision of the respondent on any application for release of information under the HR Act, and that as a consequence the Appeal Tribunal has no jurisdiction to entertain an appeal from that purported decision.
- [42]The IP Act in Schedule 5 contains an exhaustive definition of the decisions which are “reviewable decisions” for the purposes of both internal and external review, all of which are decisions under that Act. It follows that the Commissioner has power to conduct an external review of decisions under the IP Act only. There is nothing in the HR Act which gives the Commissioner any power to review decisions under the HR Act.[15] There is also nothing in that Act which gives this Tribunal any jurisdiction to hear and determine an appeal from any such decision of the Commissioner. This Tribunal has only such jurisdiction as is conferred to it by the Queensland Civil and Administrative Tribunal Act 2009 (Qld), or what is referred to there as an enabling Act: s 9(1). The IP Act is an enabling Act, but I can find nothing in the HR Act conferring any jurisdiction on the Tribunal.
Conclusion
- [43]It follows that none of the grounds of appeal have been made out. The appeal is dismissed. I shall give directions about any application for costs.
Footnotes
[1]For my convenience I shall refer to Ms Deemal-Hall as the appellant and to the Office of the Director of Public Prosecutions as the respondent. The Department of Justice and Attorney-General has been handling this matter on behalf of the respondent, and was until 29 November 2023 itself the second respondent to the appeal.
[2]Since the review officer was acting as a delegate of the Commissioner, I shall refer to the decision maker as the Commissioner.
[3]Allen v Queensland Building and Construction Commission [2024] QCA 24 at [19]. See also [52].
[4]Reasons at [29].
[5]R v Deemal-Hall [2005] QCA 206, where the case against the appellant was said by one member of the court to have been overwhelming: [2].
[6]Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373. The Court overturned Queensland authority on the appropriate jury direction as to the meaning of “a probable consequence” in the Criminal Code s 7, s 8 and s 9, but the majority (Kirby J dissenting) applied the proviso and dismissed the appeal. See in particular [104]
[7]The items in Part 2 of Schedule 4 are not an exclusive list of such factors.
[8]Submissions for the appellant, paragraph 52(e).
[9]It appears from the judgment of the majority in the High Court that the appellant told the police the deceased was “very violent”: Darkan (supra) at [103].
[10]I assume that, as usual, there was no decision by a court about any disputed disclosure at or before the trial of the appellant.
[11]Submissions in writing for appellant at [38].
[12]That follows from the RTI Act s 49(4), discussed below.
[13]I consider that the function of the decision maker under s 49 is better described as an exercise in evaluative fact finding, rather than discretion. The test appears to be the same for both.
[14]Some of the submissions for the appellant in relation to this ground seemed to stray into a broader challenge to the amount of weight attributed to particular factors by the Commissioner. That is not the issue on this appeal.
[15]The HR Act refers to a Commissioner under the Anti-Discrimination Act 1991 (Qld), but that is different.