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Monday, September 12, 2011

Saved from a reprise of Christmas Island anguish

None who saw the dramatic and tragic loss of life as an asylum seekers' boat crashed onto the rocks at Christmas Island last December will quickly forget. Few would wish to hear  recordings of what must have been desperate calls to the Western Australian Police for assistance. Whether the  recordings were exempt from disclosure under the Freedom of Information Act was an issue recently considered by the Information Commissioner. The Nine Network had applied in December, just after the incident, for access to the recordings of calls made at " 6.59am, 7.03am & 7.09am" on the day in question. The Commissioner found the recordings  exempt, despite the fact that they were played in open court in May, and their content published by major media outlets, because the Coroner had written to the Commissioner of Police giving what the Information Commissioner says amounted to a direction regarding all evidence obtained in respect of deaths. Given the powers in the Coroners Act to receive evidence on oath, the recordings were exempt (Schedule 1 Clause 4 (b)) because disclosure would contravene an order or direction of a person or body having such power.

The Police had not claimed this exemption at the time, arguing disclosure would "prejudice an investigation of any contravention or possible contravention of the law in a particular case, whether or not any prosecution or disciplinary proceedings have resulted" (Clause 5(1)(b); and would "prejudice the fair trial of any person or the impartial adjudication of any case or hearing of disciplinary proceedings" (Clause 5(1)(d)). As the Commissioner "stands in the shoes" of the decision maker he was free to rely upon an exemption that hadn't been raised previously.

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