Application of Section 50(b) FOI Act
1. Would public disclosure of the relevant matter be contrary to an order made or direction given by a royal commission, commission of inquiry or a person or body with power to take evidence on oath?
a) Public disclosure
In Sharples and Queensland Police Service,2 the Assistant Information Commissioner noted that the words ‘public disclosure’ in section 50 of the FOI Act require a different consideration to that required by other exemptions in the Act.3 When considering the effect of ‘public disclosure’ of the relevant matter, the effect of limited disclosure for the benefit of a particular individual is not relevant. Rather, the consideration is whether intentional and general disclosure of the relevant matter, eg through tabling or authorised publication, would have the effect anticipated by the relevant section 50 exemption.4
b) Is the relevant matter subject to an order or direction?
Non-publication orders or directions are often issued where the publication of relevant material could prejudice the inquiry or an individual’s rights, interests or reputation.5
The Deputy Information Commissioner considered a non-publication order or direction issued under section 16 of the Commissions of Inquiry Act 1950 (Qld) (CI Act) in the context of section 50(b).6 Relevantly, section 16 of the CI Act provides:
16 Power to prohibit publication of evidence
A commission may order that any evidence given before it, or the contents of any book, document, or writing produced at the inquiry, shall not be published.
Accordingly, the relevant matter must have been ‘produced’ at the inquiry to be subject to a non-publication order under section 16 of the CI Act.
The Macquarie Online Dictionary defines ‘produced’ as:
to bring into existence; give rise to; cause.
When section 16 of the CI Act is read in conjunction with sections 5 and 9(2)(ix) of the CI Act, ‘produced’ should be interpreted as:
- tendered as evidence to the inquiry; or
- produced by a witness to the inquiry.7
Where no official or explicit non-publication order has been issued in relation to the relevant matter, other relevant circumstances may infer an order or direction in accordance with a statutory provision. Other relevant circumstances may include:
- whether the evidence tendered was marked as confidential
- whether the evidence was given during a confidential session of limited participants.8
c) Was the direction given by a royal commission, commission of inquiry or a person or body having power to take evidence on oath?
i) Royal Commission
A Royal Commission is a commission of inquiry issued by the Governor-General by Letters Patent pursuant to the Royal Commissions Act 1902 (Cth) or any other power.9
ii) Commission of inquiry
Whether a body is a ‘commission of inquiry’ requires an assessment of relevant enabling legislation.10
Section 3 of the CI Act defines a ‘commission’ as ‘any commission of inquiry issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor’s hand and the public seal of the State’.
iii) Person or body having power to take evidence on oath
To determine whether a body has power to take evidence on oath, it is necessary to look to the powers conferred by statute on the relevant body,11 for example:
- the Crime and Justice Commission is a body having power to take evidence on oath, under the Criminal Justice Act 1989 (Qld);12
- a Complaints Investigation Committee, established by the Medical Board of Queensland (Board) and vested with the same powers as the Board, is a body with power to take evidence on oath, pursuant to section 37(3) of the Medical Act 1939 (Qld).13
2Sharples and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 December 2001). [up]
3 The decision considered the application of section 50(c) of the FOI Act, however the test for ‘public disclosure’ is relevant to all section 50 FOI Act exemptions. [up]
4Sharples and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 December 2001) at paragraph 20. [up]
5Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 101. [up]
6Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 91. [up]
7Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 92. [up]
8K.J Aldred and Department of Prime Minister and Cabinet No. N88/106 AAT No. 5159 at paragraph 21. [up]
9Section 1B of the Royal Commissions Act 1902 (Cth), referred to in K.J Aldred and Department of Prime Minister and Cabinet No. N88/106 AAT No. 5159. [up]
10Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 85 which considered section 13 of the Medical Act 1939 (Qld). [up]
11Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 85. [up]
12 (Unpublished OIC Preliminary View). [up]
13Orth and Medical Board of Queensland (2003) 6 QAR 209 at paragraph 4. [up]
Last updated: March 5, 2012