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Thursday, April 07, 2011

Tribunal upholds decision on emergency department death reviews

The Courier Mail today reports detail from reviews of deaths in emergency departments at three hospitals in Queensland based on documents released after QCAT upheld (in a decision yet to be posted) the decision of the Right to Information Commissioner that the documents were not exempt from disclosure. (Update: the paper doesn't hold back in the editorial "When right to information is a sick joke."
(Further update-the QCAT decision.)


  1. Cannot think of a more worthy FOI request, yes the details may embarrass Queensland Health but the public benefit in knowing is overwhelming.

  2. Anonymous4:04 pm

    What's your legal view on an officer (not RTI/IP delegated) being requested to draft a decision for a delegated officer who signs it? The undelegated officer goes through the entire process and handles the file, makes decisions on all documents, marks up the documents with relevant exemptions and prepares the decision. It is then signed by a delegated officer. (It is unknown if the delegated signing officer then reads through every document and checks all exemptions and checks the decision before signing it. If so, I don't see the point of doing the quite lengthy work twice).

    What is your legal view when a delegated officer supervisor requests an undelegated officer to make a decision advising that the delegated officer cannot make the decision, nor 2 other delegated officers as they've done prior RTIs for the same applicant? The delegated officer supervisor also informs the undelegated officer that he/she expects to be called as a witness in a court hearing re the applicant so cannot make the decision. The undelegated officer tells the delegated officer that he/she has no delegation so cannot make the decision, then faces retalitory action.

    Would appreciate your opinion, rather than referral.


  3. Authority to make a decision in most of our acts rests with the principal officer of the agency who may either delegate or direct an officer or officers to deal with applications generally, or to deal with a particular application. There is nothing improper in an officer not holding authority from the principal officer assessing relevant documents and preparing a draft determination for an authorised officer. The authorised officer may take what amounts to advice into account in reaching a decision independently, applying his or her mind to the matters for decision. But uncritical or unquestioning acceptance of the views of another could mean the statutory authority to make a decision has not been properly exercised. See the WA Supreme Court decision in Manly:

    On the second issue an officer without authority can't make a decision exercising statutory powers.Retaliation for taking a position on this that seems correct sounds improper to me.

    The fact that authorised officers have made previous decisions on applications by this applicant wouldn't preclude them from making a decision on a new application. Involvement in a court case might be a different matter. In which case-or in any event- the simple answer would be for the principal officer to authorise another officer to make a decision on this application.

  4. Anonymous11:44 am

    Curious about above question and answer. I looked at Manly dec and it does not appear to have relevance to Anon question.

    Is there a Qld or other case of relevance to the question?

    It would appear that drafting a decision one would need to turn one's mind to legislation and apply one's own interpretation. If an undelegated person were instructed to draft a RTI or IP decision surely they would have to apply their own interpretation of legislation and knowledge of the documents and file?

    What responsibility does that undelegated person have in relation to then a delegated officer signing the RTI decision letter?

    How would the undelegated person know if the delegated person signing the decision letter simply quickly read over and signed it? Knowing there are legal implications, fines, and disciplinary action probable - not to mention the RTI decision being deemed invalid by the Office of the Information Commmissioner if not actually decided upon by a delegated officer - what, if any, protection has the undelegated officer have that the delegated officer does in fact re-read every document and re-evaluate every document giving their delegated view to each document and endorsing or amending the undelegated officer's RTI Decision letter?

  5. Anonymous11:55 am

    Apologies have located relevant excerpt in abovenamed case.

    Would still appreciate your view on above queries and if you know of any other relevant cases.

  6. I don't think I can add to this but give me a call or email me if a chat might help.