Harris and Criminal Justice Commission
Harris and Criminal Justice Commission
(1994 S0149, 27 July 2001)
In this case, the Information Commissioner dealt with three groups of documents claimed to be exempt, respectively, under s.50(c)(i), s.43(1) and s.41(1) of the FOI Act. The Clerk of the Parliament had issued a certificate under s.9 of the Parliamentary Papers Act 1992 Qld certifying that certain documents held by the Criminal Justice Commission (CJC), which were copies of communications to or from the Parliamentary Criminal Justice Committee (PCJC) were ‘proceedings in Parliament’ as defined in s.3 of the Parliamentary Papers Act. The PCJC had not authorised the public disclosure of those documents.
The Information Commissioner held that the public disclosure of the documents would infringe a Standing Order of the Legislative Assembly, and hence that the documents were exempt under s.50(c)(i) of the FOI Act. The Information Commissioner also held that disclosure of a CJC record of an oral communication to the Chair of the PCJC, which was obviously intended to be a confidential communication, would infringe the privileges of Parliament, and hence that it was exempt under s.50(c)(i) of the FOI Act.
The applicant had argued (apparently by analogy with the legal doctrine by which legal professional privilege is denied to communications made in preparation for, or furtherance of, an illegal or improper purpose) that all of these documents had been knowingly created for, or were knowingly used for, an illegal or improper purpose, or involved an abuse of the integrity of Parliamentary processes, and were therefore disqualified from attracting Parliamentary privilege. However, the Information Commissioner accepted a submission by the PCJC that it would infringe the very essence of Article 9 of the Bill of Rights for any court or tribunal to inquire into whether documents, which qualify as proceedings in Parliament within the terms of s.3 of the Parliamentary Papers Act, were knowingly created for, or were knowingly used for, an illegal or improper purpose, or involved an abuse of the integrity of Parliamentary processes. Proceedings in Parliament are not to be impeached or questioned in any place out of Parliament.
The Information Commissioner upheld claims of legal professional privilege (and hence exemption under s.43(1) of the FOI Act) in respect of four documents. The Information Commissioner examined issues relating to implied waiver in respect of some of those documents. Notably, the Information Commissioner rejected a contention of waiver through disclosure to the applicant (by staff of the Connolly-Ryan Commission of Inquiry) of segments of a legal opinion, prepared by the CJC's in-house counsel, when it was established that the legal opinion was supplied by the CJC to the Commission of Inquiry under compulsion, and with an express reservation of the CJC's entitlement to privilege. The Information Commissioner also rejected the applicant's contention that the documents did not attract privilege because they were created in preparation for, or furtherance of, an illegal or improper purpose.
In respect of the group of documents claimed to be exempt under s.41(1) of the FOI Act (the exemption for deliberative process matter), the Information Commissioner held that much of the matter in issue was merely factual matter, which was ineligible for exemption under s.41(1) by virtue of s.41(2)(b) of the FOI Act. The Information Commissioner decided that some segments of matter did qualify for exemption under s.41(1), but that disclosure of the balance would not be contrary to the public interest.
