Application of Schedule 3, section 6(c)(i) RTI Act

Relevant considerations

1. Is the information subject to parliamentary privilege?

The concept of parliamentary privilege is set out in section 8 of the POQ Act, which 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'.¹

The meaning of 'proceedings in the Assembly' includes '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.'² Section 9, subsection 2 of the POQ Act lists examples of 'proceedings in the Assembly', including:

• evidence provided before the Assembly, committee or inquiry
• a document presented or submitted to the Assembly, committee or inquiry
• a document tabled in the Assembly, committee or inquiry³
• preparing a document for the purpose of presenting or submitting a document to or providing evidence before the Assembly, committee or inquiry; and
• preparing, making or publishing a document or report under the direction of the Assembly or a committee.

In Moriarty and Department of Health⁴, the Information Commissioner was satisfied that documents and advice created for use by the Minister in relation to a possible parliamentary question was directly related to the discharge of the Minister's obligations to Parliament. As such, even though the information was not presented to Parliament, it was still prepared for the purpose of transacting business in the Assembly and was therefore subject to parliamentary privilege.⁵

2. Would public disclosure of the information infringe the privileges of parliament?

a) Infringe the privilege of parliament

Whether disclosure would actually impeach or bring into question the proceedings in the Assembly is irrelevant. The relevant inquiry is whether public disclosure of information would infringe the Parliament's privilege.

Information subject to parliamentary privilege cannot be disclosed other than in accordance with parliamentary processes, or its disclosure will infringe the privileges of parliament.

b) Public disclosure

In Sharples and Queensland Police Service⁶, the Information Commissioner noted (in the context of the equivalent exemption under the repealed FOI Act) that the exemption is worded to apply to circumstances of public disclosure. The Information Commissioner discussed 'public disclosure' and considered that a limited disclosure of information does not constitute waiver of parliamentary privilege for the purposes of this exemption:

the test imposed by the words "public disclosure" in s.50 appears to negate the possibility of taking into account the effect of a limited waiver of privilege for the benefit of a particular individual, where that individual is the applicant for access to a document under the FOI Act … It appears that only an intentional general waiver of parliamentary privilege (most commonly, through tabling, or other authorised publication, of a document) may be taken into account in the application of s.50 of the FOI Act.