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Application of Section 50(c) FOI Act

Relevant considerations

1. Is the matter subject to parliamentary privilege?

On 6 June 2002, the POQ Act replaced the Parliamentary Papers Act 1992 (Qld) (PP Act) as the relevant legislation to determine whether information is subject to parliamentary privilege. Matter will be subject to parliamentary privilege if it amounts to ‘proceedings in Parliament’ under the POQ Act2 or ‘proceedings in the Assembly’ under the PP Act.3

a) For applications made after 6 June 2002, is the relevant matter subject to parliamentary privilege under the POQ Act?

Since its enactment on 6 June 2002, the POQ Act has governed parliamentary privilege. Section 8 of the POQ Act states that ‘the freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly’.4

The meaning of ‘proceedings in the Assembly’ is defined in section 9(1) of the POQ Act as ‘all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee’.

The POQ Act defines ‘Assembly’ to mean the ‘Legislative Assembly’ and ‘committee’ to mean ‘a committee of the Assembly, whether or not a statutory committee’.

Section 9(2) of the POQ Act lists examples of ‘proceedings in the Assembly’, to include:

  • giving evidence before the Assembly, a committee or an inquiry
  • evidence given before the Assembly, a committee or an inquiry
  • presenting or submitting a document to the Assembly, a committee or an inquiry
  • a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry5
  • preparing a document for the purposes of, or incidental to, transacting business in the Assembly, a committee or an inquiry
  • preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee
  • a document (including a report) prepared, made or published under the authority of the Assembly or a committee.

b) For applications made prior to 6 June 2002, is the relevant matter subject to parliamentary privilege under the PP Act?

Before the commencement of the POQ Act on 6 June 2002, the concept of parliamentary privilege was dealt with by the PP Act. Section 3(1) of the PP Act referred to the protection of ‘proceedings in Parliament’ rather than the POQ Act term ‘proceedings in the Assembly’.

The phrase ‘proceedings in Parliament’ was defined in section 3(2) of the PP Act as ‘all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the House or a committee’.

Without limiting section 3(2), section 3(3)(a)-(g) of the PP Act identified circumstances amounting to ‘proceedings in Parliament’, including:

  • giving evidence before the House, a committee or an inquiry
  • evidence given before the House, a committee or an inquiry
  • presenting or submitting a document to the House, a committee or an inquiry
  • a document presented, submitted or laid before the House, a committee or an inquiry
  • preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c)
  • preparing, making or publishing a document under the authority of the House or a committee (including a report); and
  • a document prepared, made or published under the authority of the House or a committee (including a report).

2. Would public disclosure of the relevant matter infringe the privileges of Parliament?

a) Public disclosure

In Sharples and Queensland Police Service,6 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.7 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.8

b) Infringe the privileges of Parliament

Whether disclosure would actually impeach or question the ‘proceedings in Parliament’ or ‘proceedings in the Assembly’ is irrelevant. The question is whether public disclosure of information would infringe the Parliament’s privilege.9

Accordingly, public disclosure of matter amounting to ‘proceedings in the Assembly’ or ‘proceedings in Parliament’ will infringe the privileges of Parliament unless the disclosure is in accordance with parliamentary processes.10

i) Whether disclosure is authorised by Parliament under the POQ Act

Part 5 of the POQ Act provides for the publication of parliamentary records. Disclosure of information in accordance with processes set out in the POQ Act will not infringe the privileges of Parliament.

ii) Whether disclosure is authorised by Parliament under the PP Act

Without limiting any other power of Parliament has to authorise the publication of a document, section 4(1) of the PP Act states that the Parliament may authorise the publication of any document relating to ‘proceedings in Parliament’.

In accordance with section 4(2) of the PP Act, a committee may only authorise the publication of the following types of documents:

  • evidence given before a committee;
  • a document presented or submitted to the committee; or
  • a document prepared or made by the committee (including a report).

2 Section 8 of the POQ Act [up]
3 Section 3 of the PP Act. [up]
4 Section 8(2) of the POQ Act expressly notes that the provision is intended to have the same effect as Article 9 of the Bill of Rights 1688. [up]
5 However, see section 9(3) of the POQ Act, which excludes certain documents from being considered ‘proceedings in the Assembly’, including documents authorised to be published by the Assembly. [up]
6Sharples and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 December 2001). [up]
7 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]
8Sharples and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 December 2001) at paragraph 20. [up]
9Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 February 2010) at paragraph 131. [up]
10Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (Unreported, Queensland Information Commissioner, 17 December 1999) at paragraph 59. [up]

Last updated: March 5, 2012