the solution

Recent Cases: Victoria

Akers v Victoria Police [2022] VCAT 88 

Mr Akers (“applicant”) made a request under the FOI Act to Victoria Police for access to documents concerning incidents involving him between February 1999 and March 2019.  Victoria Police identified six documents: 5 headed ‘LEAP Interest Flag (Interest Flag)’ and one entitled ‘LEAP Incident Report (Document 2)’ that fell within scope of the request. Victoria Police provided the applicant with edited copies of the documents, claiming 

s 31(1)(d) for information edited from each of the Interest Flags and s 33.

The applicant sought review by the Public Access Deputy Commissioner (“Commissioner”) who affirmed the Victoria Police decision.  The applicant sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”)

 

Law Enforcement Exemption: s 31

 

The Interest Flags were tools used by members of Victoria Police to gather and communicate intelligence and information of potential responses to matters where police functions would be required.  Interest Flags about a person captures information that Victoria Police said was essential for officers to make an assessment as to how to stay safe when engaging with that person.  Disclosing Interest Flags would substantially hinder police operations because a person could alter their behaviour so as to alleviate concerns of Victoria Police (eg by coming up with a story to explain away past behaviour).  Disclosing the knowledge of Victoria Police operations would also reveal police procedures and methods. 

 

The Tribunal agreed s 31(1)(d) applied but made it clear that the exemption did not apply to methods or procedures that are widespread and well-known.  It rejected the applicant’s argument that most, if not all, of the methods and procedures of Victoria Police were known to him as this was not supported by the evidence. 

 

Personal Affairs Information: s 33 

 

The Tribunal was satisfied that disclosure of the personal affairs information would be unreasonable for the following reasons:

  • the applicant’s interest in the information was an inherently personal one;
  • the nature of the information that would be disclosed would allow the applicant to take action to avoid future scrutiny by Victoria Police; and
  • the information recorded in the documents can be seen as confidential and sensitive.

Public Interest Override: s 50(4)

 

The Tribunal found there appeared to be no information to suggest that there was any widespread and ongoing public interest in either the applicant or his treatment by Victoria Police.  The Tribunal concluded that, even if there was some residual public interest in the applicant and/or his treatment by Victoria Police, then this would fall well short of meeting the ‘high threshold’ upheld by the Tribunal in order to exercise the discretion set out in the public interest override

 

HELD:

 

The Tribunal affirmed the Commissioner’s decision and refused access to the documents  under ss 31(1)(d) and 33 of the FOI Act.  The Tribunal considered the public interest override and was not satisfied that the public interest required disclosure of the edited information

 

Bruce v Victorian Workcover Authority (WorkSafe) (Human Rights) [2022] VCAT 34

In December 2020, Mr Bruce (“complainant”) made a complaint to the Health Complaints Commissioner (“Commissioner”) about his health information. 

 

The Commissioner declined to further entertain the complaint as the Commissioner did not consider that the complaint could be conciliated successfully.

 

The complainant then requested the Commissioner to refer the complaint to the Victorian Civil and Administration Tribunal (“Tribunal”) which the Commissioner did.

The complainant claimed in his particulars of complaint that the Victorian Workcover Authority (Worksafe) (“respondent”) had breached the HR Act and in particular HPPs 1.1-1.5, 2.1 and 2.2.  The complainant also asserted that the respondent had breached ss 80 and 82 of the HR Act, and that it had unlawfully interfered with his right to privacy under s 13 of the Charter.   

 

The preliminary issues for the Tribunal was whether it had jurisdiction to:

  • hear aspects of the particulars of complaint that related to matters beyond the complaint that was referred to the Tribunal; and
  • determine offences under the HR Act. 

Jurisdiction - complaint: 

 

The respondent submitted that the complaint to the Commissioner referred only to HPP 1, relating to collection of health information, and made no reference to HPP 2, which relates to use and disclosure of health information.  The Commissioner did not consider any complaint about use or disclosure of health information, and the complaint that was referred to the Tribunal contained no reference to use or disclosure. 

 

The complainant submitted that his complaint about use and disclosure could be extrapolated from the original complaint.

 

The Tribunal considered that its jurisdiction is derived wholly from statute.  As a result, it does not have jurisdiction unless that jurisdiction is conferred on it by an enabling enactment.  In this case, the HR Act.  The Tribunal referenced s 74 of the HR Act which limits the Tribunal’s jurisdiction to matters referred to it. 

 

Giving the broadest possible interpretation to the words in the documents sent to and from the Commissioner and to s 74 of the HR Act, the Tribunal concluded that the complaint was about HPP 1, relating to the collection of health information, and that is what was referred to the Tribunal from the Commissioner.

 

Therefore, the Tribunal found that it did not have jurisdiction to deal with some of the allegations set out in the particulars of complaint. 

 

Jurisdiction - offences under the HR Act: 

 

The Tribunal recognised the jurisdiction of the Tribunal is set out in Division 6 of Part 6 of the HR Act, and in s 74 in particular.  It held that it does not have jurisdiction in relation to ss 80 and 82 of the HR Act, and has no power to make orders under either of those sections. 

 

HELD: 

 

It was held by the Tribunal that its jurisdiction is limited only to the complaint referred to it from the Commissioner, that is the complaint that there was a breach of the HR Act and specifically a breach of HPP 1. 

 

In addition, that the Tribunal does not have jurisdiction to determine offences under the HR Act.