Key published decisions applying Section 42(1A) FOI Act

Godwin and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 17 January 2011)

The applicant sought access to certain documents relating to a mining accident. The Department of Employment, Economic Development and Innovation (Department) refused access to three pages of a relevant interview transcript. [2]

The Assistant Commissioner noted that the information would be exempt under section 42(1A) of the FOI Act if: [5]

  • the information consisted of information given in the course of an investigation of a contravention or possible contravention of the law; and
  • the information was given under compulsion under an Act that abrogated the privilege against self-incrimination.

Was the information given in the course of an investigation of a contravention or possible contravention of the law?

The Assistant Commissioner was satisfied that the information was given in the course of an investigation of a contravention or possible contravention of the law. The issue for determination was whether the second requirement was satisfied. [6]

Was the information given under compulsion under an Act that abrogated the privilege against self-incrimination?

Information given under compulsion

Here, the information was only given after the investigators invoked section 159 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA). [17]

159 Person must answer question about serious accident or high potential incident

(1) This section applies if a person refuses to answer a question about a serious accident or high potential incident asked by an officer.

(2) If the officer requires the person to answer the question, the officer must advise the person of the following—

(a) that if the answer might incriminate the person, the person may claim, before giving the answer, that giving the answer might incriminate the person;

(b) the effect of making the claim on the admissibility of the answer and any information, document or other thing obtained as a direct or indirect result of the person giving the answer as evidence in any proceeding against the person.

(3) The person must answer the question, unless the person has a reasonable excuse.

(6) Neither the answer nor any information, document or other thing obtained as a direct or indirect result of the person giving the answer is admissible in any proceeding against the person, other than a proceeding in which the falsity or misleading nature of the answer is relevant.

The Assistant Commissioner concluded that: [17]

  • while the interviewee did not expressly state that he refused to answer questions prior to section 159 CMSHA being invoked, the officers may have reasonably concluded that the interviewee's answers effectively amounted to a refusal to fully answer their questions
  • the interviewing officers invoked section 159 of the CMSHA in order to compel the interviewee to answer further questions; and
  • the interviewing officers explained the operation of section 159 of the CMSHA in a manner which the interviewee demonstrated he understood by restating that he was now required to answer questions, but the answers would be inadmissible in court and could not be used against him.

Under an Act that abrogates the privilege against self-incrimination

The Assistant Commissioner concluded that section 159 CMSHA was sufficient to abrogate the interviewee's privilege against self-incrimination under the section and that the information was only given as a result of the Act. [17]

Accordingly, the information was exempt under section 42(1A) of the FOI Act.

The Assistant Commissioner also determined that minor non-compliance (the investigating officers invoked the CMSHA prior to the interviewee expressly refusing to answer questions) with the CMSHA would not deprive an informant the safeguard offered by section 159(6) of the CMSHA. The Assistant Commissioner considered that it is necessary to strike a balance between the rights of the individual and the rights of persons not to be endangered by the actions of others. [23] Therefore, the right to abrogate the privilege against self-incrimination is not lost merely because the parties involved fail to strictly comply with the requirements of the section of the relevant Act. [28]

Price and Department of Police (Unreported, Queensland Information Commissioner, 29 June 2007)

The applicant applied to the Queensland Police Service (QPS) for access to all documents related to 'my complaints/myself to police'. The Assistant Commissioner considered whether matter consisting of a summary (précis) of a QPS interview and the corresponding tape recording of that interview, was exempt under section 42(1A) of the FOI Act.

The Assistant Commissioner was satisfied that the key issues regarding the application of section 42(1A) of the FOI Act are: [74]

  • whether the information was given in the course of an investigation of a contravention or possible contravention of the law 
  • whether the information was given under compulsion
  • whether a claim of privilege is available; and
  • whether the information was given under an Act that abrogated the privilege against self-incrimination.

She noted that each of these must be established in order for the matter to qualify for exemption under section 42(1A) of the FOI Act. [75]

Was the information given in the course of an investigation of a contravention or possible contravention of the law?

Contravention or possible contravention of the law

The term 'contravention or possible contravention of the law' was considered by the Information Commissioner in T and Queensland Health.9 In that decision, the Information Commissioner considered that contraventions or possible contraventions of the law need not be confined to the criminal law and there was no reason why the words should not be read as extending to any law which imposes an enforceable legal duty to do or refrain from doing something.

In the course of an investigation

The Assistant Commissioner was satisfied that the QPS investigation was an investigation of a breach of discipline. Accordingly, the first limb of section 42(1A) FOI Act was satisfied. [83-85]

Was the information given under compulsion under an Act that abrogated the privilege against self-incrimination?

Information given under compulsion

Here, the information was given under the Police Service and Administration Act 1990 (Qld) (PSA Act). Under the PSA Act, Human Resources Management Manual (HRM Manual), the effect of the Police Commissioner's direction required an officer to answer questions. Therefore, the Assistant Commissioner was satisfied that the information was given under compulsion. [87-89]

Whether a claim of privilege against self-incrimination is available

The Assistant Commissioner noted the legal distinction between the privilege against self-incrimination and the penalty privilege. [90] She recognised recent High Court decisions which held that the penalty privilege is not available in non-judicial matters.10 The Assistant Commissioner considered that the nature of the disciplinary action outlined in the PSA Act was punitive in nature and therefore fell within the scope of the penalty privilege. [100] Accordingly, the third limb of section 42(1A) FOI Act was not satisfied as there was no valid claim for privilege. [103]

Under an Act that abrogates the privilege against self-incrimination

Even though the third limb of the test was not satisfied, the Assistant Commissioner for the sake of completeness considered the fourth limb of the test. [105]

She noted the High Court decision in Pyneboard Pty Ltd v Trade Practices Commissioner,11 which held that in the absence of express words of abrogation, whether the privilege is abrogated by implication will depend upon 'the language and character of the provision and the purpose which it is designed to achieve'. Here, there were no provisions of the PSA Act or the regulations that expressly abrogated the privilege against self-incrimination. However, as noted above, parts of the PSA Act and the HRM Manual operated to require an officer to answer questions as directed, which may amount to an implied abrogation of the privilege. [108]

The Assistant Commissioner considered the case of Police Service Board and Another v Morris and Martin (Morris),12 which considered legislation that had a similar operation to the Queensland PSA Act and HRM Manual. In that case, refusal to answer questions following an order to do so resulted in disciplinary action. The High Court found that the character and object of the relevant legislative provisions and the nature of the police force provide a sufficient indication that there existed an intention that the privilege against self-incrimination should be abrogated. [109] Following the decision in Morris, the Assistant Commissioner considered that in circumstances where a police officer will be exposed to a risk of self-incrimination, it may be that a police officer's right to claim privilege against self-incrimination is abrogated by implication. [110] However, the Assistant Commissioner made no specific finding on the issue as it was not necessary for the purposes of the decision. [110]

Accordingly, the Assistant Commissioner was satisfied that section 42(1A) of the FOI Act did not apply to the relevant matter. [111]

9T and Queensland Health (1994) 1 QAR 386.
10Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commissioner (2002) 213 CLR 543.
11Pyneboard Pty Ltd v Trade Practices Commissioner (1983) 152 CLR 328 at paragraph 341.
12Police Service Board and Another v Morris and Martin (1985) 58 ALR 1.

Last updated: April 27, 2012