" After the argument had concluded, my attention was drawn by the Crown Solicitor to the decision of the Victorian Court of Appeal in Victorian Police v Marke [2008] VSCA 218 delivered on 5 November 2008. Both parties were invited to make submissions and did so. That decision involved a detailed consideration of the Victorian Freedom of Information Act, many of the provisions of which have counterparts in the NSW FOI Act. In Marke the three judges delivered separate judgments. All Members of the Court of Appeal considered that it was wrong for a decision maker to proceed on the basis that a disclosure under the FOI Act was a disclosure to the world at large. Weinberg JA and Pagone AJA considered that the applicant’s purpose in seeking access to the documents was relevant. This may have been conceded by the parties. The majority thought it was permissible but not mandatory for a decision maker to have regard to the extent to which documents released under the Vic FOI Act might be further disseminated by the applicant. Both thought that a decision maker was not able to place restrictions on further dissemination of documents released under the FOI Act."[70]
Justice Smart [71] said "I would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act", but concluded that no error of law had occurred in the Tribunal in this case in which the applicant sought access for the purposes of an appeal against a criminal conviction. The applicant had failed to provide sufficient evidence on how the documents would assist him:
" If the plaintiff wishes to rely on the ground stated (setting aside an unsafe conviction) and the public interest in the administration of justice including challenges to unsafe convictions it is not sufficient for him to state that he wants to access allegedly exempt documents as an aid to challenging and setting aside his convictions. If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.[79]
After examining whether more generally the right of access under the Act justified disclosure in this case, Justice Smart concluded:
"While the judgments in Marke constitute important discussions of the FOI Act (Vic) and much of what is said is applicable to similar provisions in the NSW FOI Act I am of the opinion that there was no relevant error of law on the part of the Tribunal or Appeal Panel having regard to the way each approached the matter and the findings made."[83]
There is enough in Justice Smart's observations to suggest that the next time this issue arises there are good grounds to argue that Marke should apply in NSW. Here is what the ADT Appeal panel had to say on the matter in a recent decision:
"56 We have not found it necessary in reaching these conclusions to examine the difference between views expressed in this Tribunal (see for example, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 at [58]-[60]); upheld on appeal, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30; and Cheney v Sydney West Area Health Service [2008] NSWADTAP 29) and the Victorian Court of Appeal in Marke’s case, esp at [104] ff per Pagone AJA. The debate relates to whether the unconditional nature of release under the FOI Act (i.e. disclosure ‘to the world’) operates to exclude absolutely consideration of the claims personal to an individual applicant for release of the requested documents. We acknowledge the force of the concerns that Ms Howell has raised as to the benefits that she would receive from having these documents released. However, in our view as explained, the public interest factors to which we have referred clearly outweigh the gains that she might obtain from release of the documents we consider to be exempt."
My comments on the law and policy considerations are here.
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