Application of Section 42(1A) FOI Act
Relevant considerations
1. Was the information given in the course of an investigation of a contravention or possible contravention of the law?
a) In the course of an investigation
The information must be obtained in the course of an investigation. This issue will be determined according to the circumstances of the case and is usually easily established. For example, information obtained during an investigation into a mining accident is information obtained in the course of an investigation.1
b) Contravention or possible contravention of the law
The application of this section is not confined to investigations into contraventions of criminal law and may apply in circumstances where the investigation concerns a breach of law that does not attract a sanction of a penal nature.2
2. Was the information given under compulsion under an Act that abrogated the privilege against self-incrimination?
a) Information given under compulsion
The relevant matter must have been given under the compulsion of an Act. That is, the information must be given as a consequence of the invocation of a coercive statutory power.3 For example, information given as a result of a direction where failure to comply would amount to grounds for disciplinary action under a statute, will be information that is given under compulsion.4
b) Under an Act that abrogates the privilege against self-incrimination
The information must have been given under an Act that abrogates the privilege against self-incrimination. That is, the relevant legislation must require the person giving the information to do so, regardless of whether that information may be self-incriminatory.
It is an accepted principle of law that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.5
In Godwin v Department of Employment, Economic Development and Innovation,6 the Assistant Commissioner considered information given under compulsion of section 159(6) of the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA). The Assistant Commissioner interpreted section 159(6) of the CMSHA and was satisfied that the power to compel answers under that section abrogated the privilege against self-incrimination.
c) Whether a claim of privilege against self-incrimination is available
A plain English interpretation of this section implies that the exemption is intended to apply where there is an identifiable claim of privilege; if the legislature intended this section to apply in circumstances that abrogate any privilege that may apply (even if there was no privilege in a particular case), it would have omitted ‘the’ from the above definition.7
The privilege against self-incrimination only applies to information that may lead to exposure to criminal prosecution. Information that may result in penalty or forfeiture without criminal prosecution is not privileged for this purpose.8
1Godwin and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 17 January 2011) at paragraph 5.
2Re T and Queensland (1994) 1 QAR 386, which considered the meaning of ‘contravention or possible contravention… (including revenue law)’ for the purposes of section 42(1)(e) of the FOI Act.
3 For example see; Godwin and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 17 January 2011) at paragraph 17. See also Pyneboard Pty Ltd v Trade Practices Commissioner (1983) 152 CLR 328 at 341, where the High Court held that where there are no express words of abrogation, the question of whether the privilege has been abrogated by implication will depend upon ‘the language and character of the provision and the purpose which it is designed to achieve’.
4Price and Department of Police (Unreported, Queensland Information Commissioner, 21 June 2007) at paragraph 86-87.
5Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J.
6Godwin and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 17 January 2011).
7 (Unpublished OIC Preliminary View).
8 Note: a ‘penalty privilege’ is recognised in judicial proceedings, but is not recognised for the purposes of RTI/FOI law.
Last updated: April 27, 2012