Godwin and Department of Employment, Economic Development and Innovation (310164)

Application number:
Decision date:
Monday, Jan 17, 2011

Section 42(1A)

The applicant applied to the Department of Employment, Economic Development and Innovation (DEEDI) for documents relating to a mining accident which occurred on 7 December 2008.  The only information remaining in issue was the final three pages of an interview transcript (Relevant Information) recording an exchange between Departmental officers and an interviewee, in which the interviewee was advised that he was required to answer under section 159 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA).   

The applicant submitted that the Relevant Information was ‘not elicited in full compliance with s 159’ of the CMSHA and accordingly, was not ‘given under compulsion under an Act that abrogated the privilege against self-incrimination’, and should be released.

In accordance with Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389, Assistant Commissioner Henry considered ‘the language of the [CMSHA], its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the requirements of [section 159].  Assistant Commissioner Henry was unable to discern a legislative purpose to invalidate an act that fails to strictly comply with the requirements of section 159 of the CMSHA in the manner proposed by the applicant. 

Accordingly, Assistant Commissioner Henry was satisfied that in the circumstances of the review, the Relevant Information was given under compulsion under the CMSHA which abrogated the privilege against self-incrimination.  As both requirements for exemption from disclosure under section 42(1A) of the FOI Act were satisfied (the first requirement - that the information consist of information given in the course of an investigation of a contravention or possible contravention of the law – was not in contention), Assistant Commissioner Henry found that the Relevant Information was exempt from disclosure under section 42(1A) of the FOI Act.