I’ve complained before about the shoddy standards of Victorian courts when it comes to giving the public useful access to their judgments. Whereas all other mainland jurisdictions in Australia place all higher and intermediate court judgments (and quite a few lower courts ones) on their own websites or Austlii, only the Supreme Court of Victoria and VCAT (plus a couple of minor entities) give their decisions to Austlii. A new NSW practice note seeks to formalise the removal of judgments from Austlii when their contents might prejudice a trial. Assuming you buy into the whole ‘suppression order’ dogma (regardless of effectiveness or proprotionality), that makes sense in theory. In practice, it just means that various judgments vanish in arbitrary ways, often indefintely. For example, despite Joseph Thomas’s trial ending some weeks back, nearly all the various judgments in his case (from Cummins J’s appalling admissibility ruling in 2005 to Curtain J’s appalling sentencing judgment more recently) are still not available on Austlii.
I raise this because of a particular mystery about VCAT decisions. I recently covered the interesting Charter/Disability Act decision, LM  VCAT 2084. The day of my post, the judgment vanished from Austlii and is yet to re-appear. Who knows why? Maybe there’s a concern about LM’s privacy, but it is surely important for Charter applications to be on the record. As someone who’s spent years trying to prise case files out of courts, I’m well versed (in that narrow field) with bureaucrats’ tendency to keep information to themselves whenever they can (and to use that control over information to deflect attempts to establish any right to get it.) The dawn of FOI legislation (albeit never applicable to courts) has changed the courts’ rhetoric from ‘mine!’ to ‘we are protecting litigants’ privacy!’, but their conduct is identical. Will the dawn of the Charter make any difference?
In a three-week old VCAT decision that mysteriously materialised on Austlii this week, McDermott v Victoria Police (General)  VCAT 2183 – read it quick before it vanishes! – the applicant, trying to prise documents out of Victoria Police’s Ethical Standards Branch and the Office of Police Integrity about a rejected complaint he made to them, tried out a vague Charter argument to convince VCAT to override some FOI exemptions:
In his reply to counsel for the respondent, counsel for the applicant also submitted that the public interest override should be invoked because the process of sampling was unfair, the Charter of Human Rights had not been observed, the process was one-sided and his client was hampered in his case by being placed at a severe forensic disadvantage by his inability to have all the file available for the benefit of cross-examination of the police witnesses.
VCAT Senior Member Noreen Megay didn’t resolve what the Charter argument was all about:
In counsel’s reply he referred in passing to the obligations imposed by the Charter of Human Rights but this was not a matter articulated during the running of the hearing. Certainly it was referred to, again in passing, in a preliminary argument about the subpoena issued by the Tribunal at the request of the applicant and was dealt with in the preliminary ruling.
Meh. Another inarticulate attempt to raise the Charter, without (it seems) any attempt to identify either operative provisions or rights that are engaged. (Charter s. 49(2) shouldn’t be a problem. The incident complained of and the complaint itself occured in 2006, but the complaint, and the ensuing FOI application, were lodged in 2007. Charter s. 49(3), though, might bite to the extent that McDermott was relying on the conduct mandate as it applies to Victoria Police, who failed to make a timely decision in November 2007 and ulitimately reached its conclusion in December 2007.)
So, what operational provisions were at issue? Probably both the interpretation and conduct mandates. The relevant provision of the FOI Act is this one:
50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
This section’s foundation is the fact that, often, government agencies have a choice on whether or not to release information. Public authorities must now make that choice in accordance with the Charter’s conduct mandate:
38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
If not granting access would limit someone’s Charter rights, then access must be granted (subject to the Charter s. 38(2) defence, which presumably would apply in the case of some exempt documents.) Section 50(4) of the FOI Act has been interpreted as only permitting VCAT to make such a decision on an agency’s behalf if the public interest ‘necessitates’ it. But, if the conduct mandate requires entities to grant access, then perhaps s50(4)’s concept of ‘public interest’ should be interpeted as encompassing that very circumtance? (This would be subject to such an intepretation being consistent with s50(4)’s purpose. I’m no FOI wonk, so I have no idea.) On one reading of s50(4), VCAT is standing in place of the original decision-maker ‘the same powers as an agency’ (which include duties, like Charter s. 38(1)), so arguably VCAT is bound to order release under s50(4) if the agency should have released.
But all of that is by-the-by unless there is a right being limited. Charter s. 15(2) certainly looks a lot like a right to access information:
15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…
However, this argument runs hard up against some decisions of the European Court of Human Rights. Back in 1987, the Court held, in relation to the ECHR’s similarly worded freedom of expression right:
The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 (art. 10) does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.
The idea is that expression is a willing exchange of informaiton, which the government mustn’t stop. That’s different to an unwilling exchange, which the government doesn’t have to faciliate, unless another right requires it. One such right is the ECHR’s right to privacy:
8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.
8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The ECtHR has held that this is a right of access to personal information, but not to other information. It is unclear whether that accords with the current interpretation of s50(4) of the FOI Act, which Megay explains in the VCAT case is actually concerned with the other end of the public-private interest divide:
What is clear is that at the present moment, the law in relation to the exercise of the discretion in s 50(4) is settled; the Tribunal must be persuaded that the public interest demands, or compels, or necessitates the release of the documents and that the Tribunal must feel it has no practical alternative but to release them in order to appease or satisfy the public interest. There is no evidence before the Tribunal that would present such a picture. The applicant in his evidence proffered none; he told the Tribunal his intention was to give the document to his lawyer so could advise him of his rights. That is a private interest. I infer from the nature of the proceedings and the way in which they were conducted that the applicant is seeking advice about the possibility of bringing some action for damages against the police arising out of the incident that occurred on the Hampton foreshore on 11 February 2006 and indeed, there is nothing remarkable about that, but it is not a matter of public interest.
Maybe s50(4) will need reinterpretation in light of Charter s. 13(a)’s privacy right:
13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…
On the other hand, Charter s13(a) might be distinguished from the ECHR’s version because of its lack of reference to ‘respect’ for privacy, possibly suggesting that it doesn’t contain any positive obligations, just negative ones. Regardless, the privacy argument only covers some government information (i.e. personal information.)
At the VGSO’s seminar, mention was made of an upcoming VCAT case (also involving Victoria Police) about the intersection between the Charter and FOI. Like so many Charter actions, the applicant in that case has many difficult hurdles to overcome.