Springborg, MP and Crime and Misconduct Commission; RZ (Third Party), BX (Fourth Party), Director-General of the Department of Justice and Attorney-General (Fifth Party)
(2004 F0185, 28 April 2006)
Section 42(3A) – information obtained, used or prepared for an investigation by the CMC in performance of the prescribed functions of the CMC under the Crime and Misconduct Act 2001
The applicant sought external review of the decision of the Crime and Misconduct Commission (the CMC) to refuse access to documents concerning allegations made about the Fourth Party. The CMC claimed the documents were exempt under ss.43 and 44 of the FOI Act. During the course of the external review a new section 42(3A) was inserted in the FOI Act, which applied retrospectively. The CMC subsequently claimed that the documents in issue were exempt under s.42(3A).
Whether the CMC was performing a “prescribed function”
The applicant argued that there was no objective basis for the Premier, as the relevant public official in possession of documents containing information comprising allegations against the Fourth Party, to have formed a suspicion that that information involved or may have involved official misconduct. Consequently, the applicant agued that, in the absence of any ‘complaint, or information or matter involving misconduct’, any action taken by the CMC in relation to such information did not amount to performance by the CMC of its misconduct functions under the Crime and Misconduct Act 2001 (CM Act).
AC Rangihaeata found that the threshold obligation on a public official to notify the CMC under s.38 of the CM Act is low: it simply requires suspicion that a complaint, information or matter may involve official misconduct. Further, once in possession of the material forwarded by the Premier, the CMC proceeded to assess that material, and in doing so was pursuing its misconduct functions as prescribed by s.35 of the CM Act. AC Rangihaeata therefore found that the CMC was, in obtaining, using or preparing the matter in issue, performing its misconduct functions within the meaning of s.33(b) of the CM Act.
Whether the CMC was conducting an “investigation”
The applicant argued that the CMC merely conducted an appraisal or assessment, and did not proceed to an actual investigation of the material provided by the Premier in relation to the allegations.
AC Rangihaeata found that an “investigation” and an “assessment” within the meaning of the CM Act were not mutually exclusive processes or concepts, but complementary or integrated steps that may be taken in the course of “dealing with” a complaint. AC Rangihaeata found that, in scrutinising the material provided by the Premier, and conducting a formal interview with the Third Party, a person central to the concerns that were the basis of the allegations regarding the Fourth Party, the CMC was conducting an investigation within the meaning of the CM Act.
AC Rangihaeata was therefore satisfied that the matter in issue comprised information obtained, used or prepared for an investigation by the CMC, in the performance of the prescribed functions of the CMC, and qualified for exemption from disclosure under s.42(3A) of the FOI Act.
As s.42(3A) had not been enacted at the time the CMC made its decision, AC Rangihaeata set aside the decision under review. In substitution for that decision, AC Rangihaeata found that the matter in issue qualified for exemption under s.42(3A) of the FOI Act.