Application of Schedule 3, section 10(3) RTI Act

Relevant considerations

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

a)  Course of an investigation

The information must be obtained in the course of an investigation.  This is a question of fact and will be determined according to the circumstances of the case.

b)  Contravention or possible contravention of law

Schedule 3, section 10(8) of the RTI Act provides that a reference to a contravention or possible contravention of the law includes a reference to corruption or possible corruption under the Crime and Corruption Act 2001 (Qld).

Schedule 1 of the Acts Interpretation Act 1954 (Qld) provides that ‘contravene’ includes: ‘fail to comply with’.

The application of this section is not confined to investigations into contraventions of criminal law.1

2. Was the relevant information given under compulsion under an Act?

The information in issue must have been given under the compulsion of an Act.  That is, the information must have been given because a relevant part of an Act required that the information be provided.   The Information Commissioner has previously found that where a regulatory scheme directed a Queensland Police Service (QPS) officer to answer questions in the course of a police disciplinary investigation, the information was given under compulsion.2

3. Does the relevant Act abrogate the privilege against self-incrimination?

The information must have been given under an Act that abrogated 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-incriminating.

The relevant Act may abrogate the privilege against self-incrimination expressly or impliedly.  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.3 The language of the provision, and the provision’s character and purpose are relevant in determining whether a provision impliedly abrogates the privilege.4 Therefore, finding an implied abrogation of the right to privilege against self-incrimination will likely be confined to circumstances where the relevant provision’s use or practical application would be frustrated or rendered inoperative if the right were to prevail over the legislation.5

The privilege against self-incrimination extends to circumstances that may lead to self-exposure to disciplinary action under a regulatory scheme, as well as self-exposure to criminal prosecution.  In Wolfe, the Assistant Information Commissioner relied on a decision of the Supreme Court of Queensland which ruled that, by operation of the Police Service Administration Act 1990 (Qld), the Police Service (Discipline) Regulations 1990 (Qld) and QPS Policy and Directions, where a QPS officer is directed to answer questions under these instruments, the privilege against self-incrimination is overridden and officers must answer questions put to them. Accordingly, access to information given in such circumstances could be refused on the ground that it was exempt information.7

1 (Unpublished OIC Preliminary View).
2 Wolfe and Queensland Police Service (Unreported, Queensland Information Commissioner, 30 June 2016) (Wolfe).
3 (Unpublished OIC Preliminary View) applying Sorby and Another v The Commonwealth of Australia and Others (1983) 152 CRL 281 per Mason, Wilson and Dawson JJ at page 309 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 per McHugh J at paragraph 39.
4 (Unpublished OIC Preliminary View) applying Sorby at page 309.
5 (Unpublished OIC Preliminary View) applying Daniels at paragraph 43. 
6 Wolfe applying Nugent v Stewart (Commissioner of Police) & Anor [2015] QSC 338 (Nugent). The Queensland Court of Appeal upheld the decision in Nugent. See Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223.
7 Wolfe at paragraph 30.

Last updated: March 15, 2017