Key published decisions applying Section 50(c) FOI Act
Sharples and Department of Police (Unreported, Queensland Information Commissioner, 7 December 2001)
The applicant applied to the Queensland Police Service (QPS) for access to a transcript of the applicant’s evidence given before the Members Ethics and Parliamentary Privileges Committee (MEPPC) and a letter from the Chairman of the MEPPC to the QPS. QPS refused access to the two documents under section 50(c)(i) of the FOI Act.
Is the relevant matter subject to parliamentary privilege?
For applications made prior to 6 June 2002, is the relevant matter subject to parliamentary privilege under the PP Act?
The Assistant Information Commissioner was satisfied that the transcript of the applicant’s evidence, fell within the meaning of ‘proceeding in Parliament’, under sections 3(2) and 3(3)(a) of the PP Act, as it was a record of evidence given before a committee. Similarly, the letter was a document prepared under the authority of the MEPPC and was therefore a ‘proceeding in Parliament’ under section 3(3)(g) of the PP Act.
Would public disclosure of the relevant matter infringe the privileges of Parliament?
Public disclosure
The Assistant Information Commissioner noted that the words ‘public disclosure’ in the provision imports a different test to ‘disclosure’. [20] There had been limited disclosure of the transcript to the applicant, however the MEPPC and the Legislative Committee had not tabled the transcript or authorised its general disclosure. Even where there has been a limited disclosure to an individual for a particular purpose, this does not necessarily mean that the privileges of Parliament would not be infringed by public disclosure. [21] The question is whether public disclosure of the transcript would infringe the privileges of Parliament.
Infringe the privileges of Parliament
Since public disclosure of the documents had not been authorised by the MEPPC or the Legislative Assembly, the Assistant Information Commissioner was satisfied that public disclosure of the relevant matter would infringe the privileges of Parliament. [21-22]
The applicant applied to the Criminal Justice Commission (CJC) for access to documents concerning the applicant’s company in relation to the 1990 Criminal Justice Commission Report on gaming machine concerns and regulations (GM Report). The CJC refused access to some relevant matter under section 50(c) of the FOI Act.
The relevant matter consisted of two letters from the Chairman of the CJC to the Chairman of the Parliamentary Criminal Justice Committee (PCJC), a document titled ‘Response to [Parliamentary Criminal Justice Committee] Queries’, an internal memorandum from the CJC Director of Intelligence to the CJC Chairman and part of a report titled ‘Report on Criminal Justice Commission’s Holdings on Leonard Hastings Ainsworth’. [55]
Is the relevant matter subject to parliamentary privilege?
For applications made prior to 6 June 2002, is the relevant matter subject to parliamentary privilege under the PP Act?
The Information Commissioner was satisfied that the letters and document entitled ‘Response to PCJC Queries’ amounted to ‘proceedings in the Assembly’ under section 3(3)(c) of the PP Act, as the documents were prepared for presentation or submission to the PCJC by the CJC. [61]
In relation to the internal memorandum and report, the Information Commissioner was satisfied that even though these documents were not presented or submitted to the PCJC, their disclosure would disclose information from other documents which were subject to parliamentary privilege. [62]
Would public disclosure of the relevant matter infringe the privileges of Parliament?
Since the relevant matter constituted ‘proceedings in Parliament’ any unauthorised disclosure would infringe the privileges of Parliament. [59] Here, publication of the documents was not authorised. Accordingly, the Information Commissioner found that public disclosure would infringe the privileges of Parliament and the relevant matter was exempt under section 50(c) of the FOI Act. [63]
Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 February 2010)
The applicant applied to the Department of Police (QPS) for access to documents concerning the applicant’s detention, the cancellation of his visa and other matters concerning the applicant. QPS relied on section 50(c) of the FOI Act to refuse access to a parliamentary briefing created for the Minister’s use in the Assembly, for the purpose of answering potential questions about the substantive issue. [134]
Is the relevant matter subject to parliamentary privilege?
For applications made after 6 June 2002, is the relevant matter subject to parliamentary privilege under the POQ Act
The Information Commissioner was satisfied that the parliamentary briefing constituted a ‘proceeding in the Assembly’ because it was ‘done for the purposes of, or incidental to, transacting business in the Assembly’ in accordance with section 9(1) of the POQ Act.11
Would public disclosure of the relevant matter infringe the privileges of parliament?
Infringe the privileges of Parliament
The Information Commissioner noted that, for the purpose of section 50(c) of the FOI Act, it is not relevant to determine whether public disclosure would impeach or question proceedings in the Assembly. Rather, the question is whether public disclosure of the relevant matter would infringe the privileges of Parliament. [131]
Public disclosure
Following Ainsworth,12 the Information Commissioner was satisfied that public disclosure of the relevant matter, amounting to ‘proceedings in the Assembly’, will infringe the privileges of Parliament unless the matter was disclosed in accordance with parliamentary processes. [133] Since the parliamentary brief was a ‘proceeding in the Assembly’ and was neither tabled nor authorised for disclosure, the public disclosure of the parliamentary brief would infringe the privileges of Parliament. [133-4]
Accordingly, the relevant matter was exempt under section 50(c) of the FOI Act.
The applicant applied to the Crime and Misconduct Commission (CMC) for access to all documents concerning a complaint made by the applicant. [2] The relevant documents were two letters from the Parliamentary Crime and Misconduct Committee (PCMC) to the CMC and one letter from the CMC to the PCMC. [24] The CMC submitted that these documents were exempt under section 50(c) of the FOI Act.
While the PCMC was not a statutory committee, it was nevertheless a committee of the Legislative Assembly because section 291 of the Crime and Misconduct Act 2001 (Qld) established the PCMC as such. [53] Therefore, sections 8 and 9 of the POQ Act applied to the PCMC. [54]
Is the relevant matter subject to parliamentary privilege?
For applications made after 6 June 2002, is the relevant matter subject to parliamentary privilege under the POQ Act?
The Information Commissioner was satisfied that the two letters from the PCMC to the CMC amounted to ‘proceedings in the Assembly’ under section 9(2)(g) of the POQ Act as the documents were prepared or made under the authority of a committee, namely the PCMC. [57] Similarly, the letter from the CMC to the PCMC was a ‘proceeding in the Assembly’ under section 9(2)(c) of the POQ Act because the letter was presented or submitted to a committee. [59]
Would public disclosure of the relevant matter infringe the privileges of Parliament?
The Information Commissioner found that, since the letters between the CMC and PCMC fell within the meaning of ‘proceedings in the Assembly’ and its disclosure had not been authorised, public disclosure of the relevant matter would infringe the privileges of Parliament. [60]
Accordingly, the relevant matter was exempt under section 50(c) of the FOI Act.
11 Section 9(1) of the POQ Act. [up]
12Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (Unreported, Queensland Information Commissioner, 17 December 1999). [up]
Last updated: March 5, 2012
