Recent Cases: Victoria

Eracleous v Victoria Police (Review and Regulation) [2022] VCAT 1173

In 2019, Mr Eracleous (“applicant”) was arrested and charged with two offences, namely, stalking (under the Crimes Act 1958 (Vic)) and using a telecommunications device to harass (under the Criminal Code Act 1995 (Cth)).

The investigation, charges and prosecution were carried out by officers of the Security Investigation Unit within the ‘Counter Terrorism Command’ (“CTC”) section of Victoria Police (“respondent”).

In 2020, the applicant made a freedom of information request to the respondent arising out of that prosecution.  The first part of the request related to the applicant’s ‘Personal History report’ and ‘Involvement List’ which was processed in the normal way. 

The second part of the request concerned documents relating to the preliminary investigation and arrest of the applicant. The respondent, without processing this part of the request, refused to grant access to documents under s 29A(1A)(a) of the FOI Act.  Relying on s 27(2)(b) of the FOI Act, the decision was made in terms which neither confirmed nor denied the existence of any document.

As the Office of the Victorian Information Commissioner does not have jurisdiction to conduct reviews in relation to s 29A of the FOI Act, the applicant sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”).

The issue for the Tribunal was whether each and every document falling within the category of documents held or created by the CTC relating to any preliminary investigation into the applicant, and his arrest would, if it existed, be exempt under s 29A(1A)(a) of the FOI Act. 

Section 29A(1A)(a): 

The Tribunal accepted that in considering whether a document is exempt under s 29A(1A)(a) of the FOI Act, the inquiry is at to the purpose for which the document is held or created by the respondent.  It is exempt if that purpose is counterterrorism, or alternatively, if it is held for a purpose relating to counterterrorism. 

The Tribunal was satisfied that any document which CTC holds concerning the preliminary investigation into the applicant and his arrest must, inevitably, be for the purpose of counterterrorism, or alternatively, for a purpose relating to counterterrorism.  It noted: 

“This follows from the fact that the investigation, charging and prosecution of the applicant was conducted by officers in the CTC, which is the unit of the (respondent) which exists for the purposes of counterterrorism, in the course of their duties in the area of counterterrorism.  The fact that the offences with which the applicant was charged were not ones found in the specifically labelled as terrorism offences under the Commonwealth Criminal Code 1995, or apparently under any other Act, does not alter this conclusion.”

Additionally, it outlined that it was not necessary for any search for documents to be conducted, or to view any documents which might exist within the scope of the request, in order to reach this conclusion. 

HELD

The Tribunal was satisfied that each and every document would, if it existed, be exempt under s 29A(1A)(a) of the FOI Act.   It also considered it appropriate to announce its findings in terms which neither confirmed nor denied the existence of any document.

IGA v Australian Clinical Labs (Human Rights) [2022] VCAT 1014

IGA (“complainant”) was required by the Department of Health and Human Services (“Department”) to provide a urine sample.  The sample was taken by Australian Clinical Labs (“respondent”).   The test indicated the presence of methamphetamine.  The complainant requested a retest.   

On retesting, the result was validated and the initial report was amended to record that the result had been checked.  The complainant made a complaint to the Health Complaints Commissioner (“Commissioner”) alleging that the respondent had failed to provide her with documentation regarding the testing and retesting of the urine sample.   The complainant also alleged that the test was not conducted in compliance with standards.

The Commissioner was not able to successfully conciliate the complaint and at the request of the complainant the complaint was referred to the Victorian Civil and Administrative Tribunal (“Tribunal”).The issue for the Tribunal was whether the respondent had breached HPP 3.1, 6.5 and 6.1.

HPP 3.1 and 6.5

HPP 3 provides that an organisation must take reasonable steps to ensure that health information it collects, uses, holds or discloses is accurate, complete, up to date and relevant to its functions or activities.

HPP 6.5 states: If an organisation holds health information about an individual and the individual is able to establish that the information is inaccurate, incomplete, misleading or not up to date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up to date but must not delete the information otherwise than in accordance with HPP 4.2.

The Tribunal acknowledged that the test result was not the result the complainant was expecting. However, that it was not a matter about which it had any jurisdiction to make findings.  

It did not consider that HPP 3.1 and 6.5 allow the Tribunal to question the result of urine testing, or the clinical findings reached on the basis of that testing.  The Tribunal agreed with Deputy President Lambrick in Kitson v Dennerstein: “HPP 3 is not a vehicle through which to challenge a health diagnosis or assessment or to seek to substitute another opinion for the opinion of the author of a report.”  

The same applies to HPP 6.5. The clinical results of the urine test were recorded on the reports, and the Tribunal concluded it was not open to it to question that. The issues of process raised by the complainant and the form of documentation for reporting, are matters of policy for the Department who is the client of the respondent, and not matters covered by the HR Act.

HPP 6.1

HPP 6.1 provides that if an organisation holds health information about an individual, it must provide the individual with access to the information on request, unless any of the exceptions set out in the HPP apply.

The Tribunal accepted that whilst it took some time, all of the reports relating to the complainant were sent to the complainant, together with all related documentation such as the chain of custody form. Therefore, that the requirements of HPP 6.1 had been met.

HELD

The Tribunal was not satisfied that the respondent had breached HPP 3.1, 6.5 or 6.1.