Application of Section 11E FOI Act

Relevant considerations

1. Is the applicant an 'offender'?

For the purpose of section 11E of the FOI Act, an applicant is an 'offender' if the applicant is:

• an offender, as defined in schedule 4 of the Corrective Services Act 2006 (Qld); and
• serving a term of imprisonment for a prescribed offence or a period of imprisonment that includes a term of imprisonment for a prescribed offence; or
• a detained dangerous prisoner (sexual offender), or a supervised dangerous prisoner (sexual offender), as defined under the Corrective Services Act 2006 (Qld).

a) Offender

An 'offender' is defined under schedule 4 of the Corrective Services Act 2006 (Qld), as:

• a prisoner; or
• a person who is subject to a community based order or conditional release order.

'Prisoner' is also defined in schedule 4 of the Corrective Services Act 2006 (Qld), to mean, among other things, a person who is in the chief executive's custody. Section 7(2) of the Corrective Services Act 2006 (Qld) provides that a person is taken to be in the chief executive's custody when admitted to a corrective services facility for detention. Pursuant to section 214 of the Corrective Services Act 2006 (Qld), a prisoner who is released on parole is taken to be still serving the sentence imposed on the prisoner.¹

b) Term of imprisonment

'Term of imprisonment' is defined in section 4 of the Penalties and Sentences Act 1992 (Qld) as the duration of imprisonment imposed for a single offence.

c) Period of imprisonment

'Period of imprisonment' is defined in section 4 of the Penalties and Sentences Act 1992 (Qld) as the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment.

d) Prescribed offence

Under section 11E(2) of the FOI Act, a 'prescribed offence' means:

• an offence against a provision mentioned in the Penalties and Sentences Act 1992 (Qld) schedule;
• an offence against the Criminal Code, section 302; or
• an offence against the Criminal Code, section 359E.

The schedule of the Penalties and Sentences Act 1992 (Qld) lists 'serious violent offences'. Section 302 of the Criminal Code is the offence of murder. Section 359E of the Criminal Code is the offence of unlawful stalking.

e) Detained dangerous prisoner (sexual offender)

'Detained dangerous prisoner (sexual offender)' is defined in the Corrective Services Act 2006 as a prisoner subject to a continuing detention order or interim detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

f) Supervised dangerous prisoner (sexual offender)

'Supervised dangerous prisoner (sexual offender)' is defined in the Corrective Services Act 2006 as a prisoner subject to a supervision order or interim supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

2. Is the relevant matter a 'risk assessment document'?

A 'risk assessment document' is defined in section 11E(2) of the FOI Act as a document, or that part of a document, that assesses or is used for the assessment of:²

• the risk an offender may pose to the community; or
• risk to the security or good order of a corrective services facility as defined under the Corrective Services Act 2006 (Qld).

a) Security or good order

The words 'security or good order' are not defined in either the FOI Act or the Corrective Services Act 2006 (Qld). In Carter and Department of Community Safety,³ the Acting Assistant Commissioner was of the view that a psychological report was a 'risk assessment document', which meant that it was used to assess the risk the applicant might pose to the 'security or good order' of a corrective services facility, including the risk to other persons within the centre and to the community.

b) Corrective service facility

Schedule 4 of the Corrective Services Act 2006 (Qld) defines a corrective services facility to mean a prison, a community corrections centre, or a work camp.

3. Was the relevant matter received or brought into existence by the department in which the Corrective Services Act 2006 (Qld) is administered?

This requirement is generally easily established. Even if the name of the Department has changed, the relevant will still be brought into existence by the Department which the Corrective Services Act 2006 (Qld) is administered.⁴

The Acting Assistant Commissioner found in Carter⁵ that a risk assessment document commissioned by the offender's solicitor was still 'brought into existence' by the Department in which the Corrective Services Act 2006 (Qld) was administered, because the Report was created by an employee of the Department.⁶

¹EC and Department of Corrective Services (Unreported, Queensland Information Commissioner, 25 October 2006) at paragraph 18.
²Carter and Department of Community Safety (Unreported, Queensland Information Commissioner, 27 August 2009) at paragraph 41. 
³Carter and Department of Community Safety (Unreported, Queensland Information Commissioner, 27 August 2009) at paragraphs 41-44.
⁴Carter and Department of Community Safety (Unreported, Queensland Information Commissioner, 27 August 2009) at paragraph 47.
⁵Carter and Department of Community Safety (Unreported, Queensland Information Commissioner, 27 August 2009).
⁶Carter and Department of Community Safety (Unreported, Queensland Information Commissioner, 27 August 2009) at paragraph 49.