Use of a personal recording device by the Applicant

1. I make the initial note that Ms Luck's appearance at the Tribunal was fast and furious, lasting a mere 15 minutes before she hastily packed up her belongings and elected to leave. Ms Luck's abrupt departure was precipitated by Counsel for the Respondent raising to my attention that Ms Luck was using some kind of device to record the proceeding. At that point, Ms Luck became, as I would describe it, irate and incensed that the Tribunal would listen to what the Respondent had to say about her right to record the proceedings.
2. Ms Luck's main contention on the issue appeared to be that she had previously advised the Registrar that she was a disabled person, and so she was entitled to use a digital recording device at hearings. Medical certificates and various references to anti-discrimination and human rights legislation were, according to Ms Luck, included in her correspondence to the Tribunal.
3. In Ms Luck's opinion, the mere consideration of the issue meant she was being 'abused and discriminated against' and subjected to 'humiliating and undignified conduct' by the Tribunal and the Victorian Government.[2]
4. Ms Luck's contempt was palpable. At full volume, Ms Luck shouted variously at myself and Ms Bennett:

Are you going to continue to allow this to go on, because if you mention one more word about my disability and my assistant technology I am leaving the Tribunal and I will be just then moving straight into the international forum.[3]

If she mentions it again, I'm telling you, ma'am, I am leaving the Tribunal and then it will be based on discrimination and victimisation... Because you are subjecting me to detriment because of my disability and so is that person there,[4] and so is the Government.[5]

1. Ms Bennett, despite the aggression and entirely unjustified abuse directed towards her, took the opportunity to suggest that the matter be briefly stood down so that Ms Luck could 'have a moment to collect herself'.[6] I supported the suggestion, however, Ms Luck was not of the same mind and insisted that she did not need five minutes.[7]
2. After another approximately five minutes of shouting, in which there was very little opportunity for anyone, apart from Ms Luck, to get in a word, Ms Luck only became more fortified in her resolve to leave. As she gathered her belongings she stated:

You, are an evil person and you have no conception of what disability means. You are sick and you need to have help to run a Tribunal fairly and justly. It's an absolute outrage and it will not continue.

1. No decision was made on whether Ms Luck was entitled to use the recording device at the hearing as her premature departure made it a moot point. The preliminary hearing proceeded in her absence and only then did it become possible for me to hear what Counsel had to say on the issue. In fact, all Ms Bennett sought to do was to hand me an appeal brought by Ms Luck following a decision of Vice President Judge Macnamara at this Tribunal.[8]
2. Having now had the opportunity to read the decision of Judge Macnamara, I note that Ms Luck's behaviour in that hearing was similarly belligerent and also ended in a walk-out when the issue of the digital recording device was raised. Judge Macnamara struck out the application. Ms Luck appealed the decision. On appeal, Justice Nettle with Justice Ashley agreeing, made comments about Ms Luck's asserted unquestionable rights to record proceedings at VCAT:

There is no unqualified right to record proceedings at VCAT. Just as it is within the inherent power of the court to determine whether it will permit the recording of proceedings in court, it is within the implied power of VCAT to determine whether it will allow the recording of proceedings in the Tribunal. Consequently, in the first instance, it is up to VCAT to decide whether to allow the applicant to record any particular proceedings in the Tribunal. The fact that the applicant may have been permitted to do so by other members of VCAT in the past is not determinative of what is or is not to take place in this or any other proceedings in the future. Nor is there anything improper about the VCAT Practice Direction providing that proceedings are not to be recorded without the permission of the presiding member. So to provide does not restrict the discretion to permit recording. Rather it defines the discretion and leaves the exercise of the discretion at large.

1. Justice Nettle, in considering Judge Macnamara's decision to strike out the proceeding pursuant to s 78 of the VCAT Act, stated:[9]

if litigants like the applicant behave as discourteously toward courts and tribunals as the applicant behaved towards the Vice President in this case, they ought not be surprised if the results turn out to be not to their liking. To adapt and adopt the observations of Tracy J in Gaye Luck v University of Queensland,[10] the business of the court, and the business of VCAT no less, cannot and will not be dictated to by the uncontrolled demands of litigants who refuse to abide the rules, practices and a modest degree of courtesy essential to keep the system in operation.

1. My approach for this case was not to strike out the proceeding upon Ms Luck's withdrawal. I continued hearing the merits of the application. I have taken into account oral and written submissions from the Respondent and the extensive written submissions filed by Ms Luck on the day of the hearing. As will be discussed further below, Ms Luck's election to leave the Tribunal early is not without consequence. She was not present to contest any of the evidence introduced by the Respondent, and I have accepted the facts as set out by the Respondent in full.

Apprehended Bias from improper disclosure of documents[11]

1. The Respondent filed legal submissions with the Tribunal dated 28 June 2013. The Submissions set out the factual background of the substantive application, with a view to demonstrating to the Tribunal why the documents were considered exempt from, or out of reach of the FOI Act pursuant s 51 of the PI Act. Filed with these submissions were a number of attachments labelled A-Q.
2. By Facsimile dated 16 August 2013, Ms Luck wrote to the Tribunal asking that the attachments be removed from the file. Ms Luck stated that the documents should not have been disclosed to anyone but herself, and further expressed concern that I may be influenced and biased by viewing them. Upon receipt of the correspondence from Ms Luck, a registry officer sealed the documents in an envelope.
3. The contested documents remain in a sealed envelope and I have not viewed them to date. I advised Ms Luck at the commencement of the hearing of that fact and she was content to accept my word and continue with the hearing.[12]
4. Having not had the opportunity to view the documents, and with Ms Luck not being present to disagree with the Respondent's description of those documents, I accept the Respondent's description of the documents as contained in their summary of background facts, which is as follows.[13]

1. The Applicant made six complaints regarding members of Victoria Police in January 2012. The OPI acknowledged receipt of those complaints by letter dated 20 January 2012. On 8 February 2012, a seventh complaint was received from the Applicant concerning a member of Victoria Police. Each of the seven complaints were made pursuant to s 40 of the PI Act, and were referred to the Chief Commissioner under sub-s 40(2).
2. The complaints were assessed as raising issues warranting investigation. The Applicant was advised of this on 17 February 2012 (Attachment A). The complaints files were transferred to Victoria Police Ethical Standards Department (ESD) on 5 March 2012.
3. On 27 February 2012, the Applicant made a further complaint to the OPI (Attachment B). This complaint was referred to ESD as part of the complaints investigation. On 14 March 2012, the Applicant provided further information to the OPI regarding her eighth complaint (Attachment C).
4. On 14 March 2012, the Applicant was advised that all eight complaints were being investigated by ESD (Attachment D).
5. On 16 March 2012, the OPI received correspondence from the Applicant requesting that the OPI investigate the complaints rather than ESD (Attachment E). On 11 April 2012, the OPI advised the Applicant that, whilst understanding her request, the complaints were most appropriately addressed by Victoria Police and the OPI would oversee and review ESD's investigation (Attachment F). Nonetheless, on 13 April 2012, the Applicant again requested that the OPI investigate the complaints (Attachment G).
6. On 23 April 2012, the OPI received a further complaint from the Applicant regarding Protective Services Officers at Frankston Magistrates' Court (Attachment H).
7. On 2 May 2012, the OPI received further correspondence from the Applicant requesting the investigations be removed from ESD (Attachments I to K). On 29 May 2012, the OPI wrote to the Applicant to advise that her request to have the investigations removed from ESD had been actioned (Attachment L). The OPI also advised the Applicant that her complaints against Assistant Commissioner Dunne had been assessed and did not warrant further investigation.
8. On 1 June 2012, the Applicant wrote to the OPI regarding the decision not to investigate her complaints (Attachment M).
9. On 20 June 2012, the Applicant was advised by the OPI that at the time the complaints were removed from ESD the investigations had been completed. The OPI advised that the investigation would be reviewed and the Applicant would be advised as to the outcome of that review (Attachment N).
10. By that correspondence, the OPI reconfirmed that the Applicant's complaints regarding Assistant Commissioner Dunne had been assessed pursuant to s 40 of the PI Act and determined to not warrant investigation.
11. On 19 July 2012, the Applicant was advised that the OPI was reviewing the ESD investigations file (Attachment O).
12. On 23 July 2012, the Applicant wrote to the OPI to request that her eighth and ninth complaints be investigated by the OPI (Attachment P).
13. On 7 August 2012, the Applicant was advised that the review of the ESD investigation was complete. The OPI advised that the investigations were appropriate and the OPI would take no further action in relation to the complaints (Attachment Q).
14. In summary therefore, the Respondent submits that the complaints were considered in accordance with Part 3 of the PI Act, and:
    • (a) Seven complaints were referred to the Chief Commissioner of Police for formal investigation pursuant to sub-s 40(3) of the PI Act. The OPI subsequently requested that Victoria Police Ethical Standards Department (which was carrying out the investigation on behalf of the Chief Commissioner) cease investigating these seven complaints at the insistence of the Applicant; and
    • (b) In respect of two complaints, a decision was made not to proceed with a formal investigation pursuant to para 40(1)(a) of the PI Act.
15. By letter dated 13 August 2012, the Applicant made a request to the OPI pursuant to the FOI Act. The request may be summarised as follows:
    • (a) All electronic and physical documents held by the OPI which relate to the Applicant and her 'personal affairs' (under any of her names, namely, Gaye Alexandra Luck, Gaye Alexandra Mary Luck, Gaye Alexandra Mary Habenschuss, Gaye Alexandra Kuperman and Alex Luck);
    • (b) All electronic and physical documents held by the OPI which relate to complaints made by the Applicant to the OPI during the period 13 January 2012 to current;
    • (c) All documents relating to the Victoria Police Chief Commissioner's investigation and subsequent report to the Director, Police Integrity in respect of the complaints made by the Applicant as referred to in paragraph (b) above;
    • (d) All data and documents identifying accesses to records which relate to the Applicant by officers of the State and Federal law enforcement agencies, courts and tribunals and governments named by the Applicant in her request, which are stored in various databases;
    • (e) All documents and information relating to the Applicant's criminal record (under any of her names, namely, Gaye Alexandra Luck, Gaye Alexandra Mary Luck, Gaye Alexandra Mary Habenschuss, Gaye Alexandra Kuperman and Alex Luck); and
    • (f) All documents and information disclosed to the OPI by Victoria Police which relate to the Applicant, including criminal charges and court matters, particularly information recorded by 'SOCIT' (understood to be the Victoria Police Sexual Offences and Child Investigation Team), 'SOCAU' (understood to be the Victoria Police Sexual Offences and Child Abuse Investigation Team) and Frankston Police Station, for the period 1 February 2011 to current.
16. By letter dated 10 September 2012, the Respondent advised that it had:
    • (a) Decided to refuse access to documents and records referred to in paragraphs (a) to (d) above, on the basis of s 51 of the PI Act; and
    • (b) That none of the documents referred to in paragraphs (e) to (f) above exist within the OPI.
17. By letter dated 19 September 2012, the Applicant requested an internal review of the Respondent's decision. The internal review decision was made under the PI Act. The Respondent affirmed the decision that the documents in the possession of the OPI were not subject to the FOI Act by reason of s 51 of the PI Act.
18. No documents were released to the Applicant under the FOI Act. However, on the basis that it was reasonable in the circumstances to do so, the Respondent provided to the Applicant copies of correspondence exchanged between the Respondent and the Applicant, as well as copies of all documents (including four CDs) that were sent by the Applicant to the OPI. Those documents were provided to the Applicant under cover of a letter dated 28 September 2012.

1. The FOI Act confers, as a public right, the right of any member of the community to request access to information contained in documents in the possession of the Government of Victoria and other bodies constituted under the law of Victoria.[14]
2. Ms Luck sought various documents, as described above, pursuant to s 17 of the FOI Act, which relevantly provides that:
   • (a) Any person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or the Minister for access to the document;[15]
   • (b) The request shall provide sufficient information to enable the identification of the documents sought;[16] and
   • (c) The request shall not be refused on the ground that it does not comply with s 17(2) without the applicant having been given a reasonable opportunity of consultation with the agency with the view to making a request in a form that complies with s 17(2).[17]
3. Paragraph 48(a) of the VCAT Act relevantly provides that the review jurisdiction of the Tribunal is invoked by a person, under an enabling enactment, applying to the Tribunal for review of a decision under that enactment. An 'enabling enactment' is defined by s 3 of the VCAT Act as meaning 'an enactment by or under which jurisdiction is conferred on the Tribunal'.
4. The FOI Act is the enabling Act on which Ms Luck relies for the substantive application for review at the Tribunal. The Tribunal is given jurisdiction under the FOI Act by para 50(1)(a), which relevantly provides:

(1) Subject to this section, an applicant may apply to the Tribunal for review of-

(a) a decision of the principal officer of an agency or a Minister refusing to grant access to a document in accordance with a request;

(b) a decision of the Freedom of Information Commissioner refusing to grant access to a document in accordance with a request;

(c) a decision of the Freedom of Information Commissioner deferring the provision of access to a document;

(d) a decision of an agency refusing to grant access to a document in accordance with a request, if the Freedom of Information Commissioner has made a determination under section 49G(1) in respect of that request;

(e) a decision of an agency refusing to grant access to a document that is claimed to be exempt under section 28 or 29A;

(f) a decision under section 24 by the principal officer of an agency or Minister deferring the provision of access to a document;

(g) a decision as to the amount of a charge that is required to be paid before access to a document is granted, whether or not the charge has already been paid by the applicant, if the Freedom of Information Commissioner has certified that the matter is one of sufficient importance for the Tribunal to consider.

1. The Respondent submits that properly characterised, the Internal Review Decision does not fall within any of the categories of s 50 of the FOI Act. Rather, the decision that has been made occurred under s 51 of the PI Act, not under the FOI Act. On that basis, the Respondent refused access to the documents after the Initial Review and Internal Review.
2. Section 51 of the PI Act reads:

51. Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to-

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation.

1. The Tribunal notes that the PI Act was repealed on 10 February 2013, pursuant to s 16 of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012. On the same date, the OPI was abolished pursuant to cl 3 of Schedule 1 to the Independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act).
2. By operation of cl 4 of Schedule 1 to the IBAC Act, the Independent Broad-based Anti-Corruption Commission is, by force of that clause, substituted as a party to this proceeding, being a proceeding pending in a tribunal to which the OPI was a party immediately before 10 February 2013.
3. Section 51 of the PI Act continues to apply to any document specified in that section despite the repeal of the PI Act, pursuant to cl 25 of Schedule 1 to the IBAC Act.

1. The Respondent submits that s 51 of the PI Act provides more than a mere exemption to the FOI Act, it completely excises documents within the specified categories of paras 51(1)(a), (b) and (c) from the operation of that Act.
2. Because of the express exclusion of the FOI Act, the provisions of the legislation, as contained in s 50 of the FOI Act, which enable the Tribunal's review are likewise excluded. In the absence of an enabling enactment, the Tribunal has no jurisdiction to determine the substantive application.
3. If the Tribunal does not accept the Respondent's characterisation of its task, the Respondent submits that it is nonetheless clear that its task could only extend so far as determining whether the documents in question fall within s 51 of the PI Act. The documents in dispute do fall within that provision, and therefore the application must be dismissed.
4. It is the Tribunal's view that IBAC's refusal is accurately described by para 50(1)(a) of the FOI Act. That is, the principal officer of the OPI has refused to grant access to documents in accordance with a request. The basis upon which the Respondent has refused access is pursuant to s 51 of the PI Act, but nevertheless the refusal is still a refusal caught by s 50(1)(a) of the FOI Act.
5. However, the Tribunal does accept the Respondent's alternative submission that its task extends only so far as determining whether the documents sought fall within s 51 of the PI Act.

1. Ms Luck handed to the Tribunal at the commencement of the hearing extensive submissions specifically in relation to this jurisdictional hearing. I have read and considered those submissions despite her absence at the hearing.
2. I note that Ms Luck asserts that the FOI Act, in force at the time of her FOI request on 13 August 2012, was Version 066 with amendments incorporated to 1 July 2010.[18] In fact, the FOI Act in force on 13 August 2012 was Version No 071 incorporating amendments as at 28 June 2012.[19]
3. Ms Luck nevertheless correctly identifies the Tribunal's jurisdiction as being activated by the enabling Act, in this case being s 50 of the FOI Act. The more important question is whether s 51 of the PI Act takes the documents requested outside the reach of the FOI Act. There is no doubt that if the documents are within the definition of s 51, then the FOI Act does not apply and the application must be dismissed.
4. On the issue of whether the documents requested are excluded by s 51 of the PI Act, Ms Luck submitted that 'none of the documents to which the applicant was refused access disclosed information that related to an investigation undertaken under Part 3 of the PI Act'.[20]
5. Ms Luck's primary submission appears to be that seven of her complaints were, pursuant to sub-s 40(2) of the PI Act, referred to the Chief Commissioner for investigation. Ms Luck submits at para 29 of the her submissions:

The Chief Commissioner must investigate a complaint made to a member, in accordance with section 86M of the PRA and in this case the complaints were referred to a member, either the Chief Commissioner or a delegate in the Ethical Standards Department of Victoria Police, hence the investigation of the Applicant's complaints was undertaken by Victoria Police and not the Director of the Office of Police Integrity and consequently none of the documents to which the applicant was refused access disclosed information that related to an investigation undertaken under Part 3 of the PI Act.

1. This submission is incorrect. As noted above, I have accepted the facts as set out by the Respondent. The facts are that each of the nine complaints were made to the OPI. Six were received on 20 January 2012 and further individual complaints were received by the OPI on 8 February 2012, 27 February 2012 and 23 April 2012. Each of the complaints were made to the OPI and all were referred to the Chief Commissioner for investigation pursuant to s 40(2) of the PI Act.
2. Section 40 of the PI Act is as follows:

(1) The Director may determine that a complaint does not warrant investigation-

(i) the subject-matter of the complaint is trivial; or

(ii) the complaint is frivolous or vexatious or is not made in good faith; or

(b) if the complainant had had knowledge for more than a year of the conduct complained of and fails to give a satisfactory explanation for the delay in making the complaint.

(2) Subject to subsection (4),[21] the Director must refer a complaint warranting investigation to the Chief Commissioner.

(3) If the Director refers a complaint to the Chief Commissioner under subsection (2), the Chief Commissioner must investigate the complaint under Division 2 of Part IVA of the Police Regulation Act 1958.

1. Ms Luck submits that investigations took place pursuant to s 86M of Division 2 of Part IVA of the Police Regulations Act 1958 and not pursuant to Part 3 of the PI Act. Ms Luck relies on a letter she received from Ms Vlamis-Borg, Team Leader, OPI Professional Standards Unit, advising her that 'OPI will not be investigating your complaints'.[22] Therefore, it was submitted that the documents are not excluded from the operation of the FOI Act pursuant to s 51 of the PI Act[23] because there was no investigation under Part 3 of the PI Act.
2. In the Tribunal's view, Division 2 of Part IVA of the Police Regulation Act 1958 sets out a relatively clear scheme for the handling of disputes. Complaints referred by IBAC to the Chief Commissioner for investigation would have been conducted pursuant to s 86O of the Police Regulations Act 1958 rather than s 86M as Ms Luck submits. It is also noted that s 86L specifically says 'Complaints made to IBAC are investigated under Part 3 of the IBAC Act'.

(1) A complaint about the conduct of a member of the force may be made-

Note Complaints made to the IBAC are investigated under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011. [emphasis added]

(1) The Chief Commissioner must investigate a complaint made to a member of the police force about the serious misconduct of a member of the police force unless the subject-matter of the complaint could constitute a protected disclosure complaint.

(2) The Chief Commissioner must as soon as practicable after a complaint of serious misconduct is made give to the IBAC in writing the prescribed details of the complaint.

(3) The Chief Commissioner must as soon as practicable after commencing an investigation into any alleged serious misconduct by a member of the force give to the IBAC in writing the prescribed details of the investigation.

(1) The Chief Commissioner must as often as requested by the IBAC report in writing to the IBAC on the progress of an investigation.

(2) The Chief Commissioner may attempt to resolve a complaint by conciliation and must-

(a) before commencing to conciliate, notify the IBAC of the proposed attempt; and

(3) After completing an investigation the Chief Commissioner must in writing report to the IBAC on the results of the investigation and the action (if any) taken or proposed to be taken.

1. A plain reading of s 86O of the Police Regulation Act 1958 shows an indisputable relationship to Part 3 of the IBAC Act. The Chief Commissioner is required to report to IBAC as required, notify of an attempt to conciliate and the result, and to report to IBAC in writing on the results of the investigation. Thus, in the Tribunal's opinion, an investigation conducted under 86O of the Police Regulation Act 1958, referred to the Chief Commissioner by IBAC pursuant to s 40(2), is undoubtedly 'related' to an investigation under Part 3 of the PI Act.
2. I note that the filing of the Applicant's submissions at the commencement of the hearing meant that Ms Luck's submissions could not be fully digested and responded to by the Respondent's Counsel while on her feet before the Tribunal.

1. The Tribunal's jurisdiction is validly activated by para 50(1)(a) of the FOI Act because the decision sought to be reviewed is a decision of the principal officer of an agency to refuse to grant access to documents in accordance with a request. By virtue of para 50(1)(a) of the FOI Act, the Tribunal has jurisdiction to determine whether the documents are excluded from the operation of the FOI Act pursuant to paras 51(1)(a), (b) or (c) of the PI Act. Such was the approach of the Tribunal in Zeqaj v Victoria Police[24] and Zeqaj v Ombudsman Victoria[25] (when considering the effect of s 29A of the Ombudsman Act 1973).
2. However, it may not always be the case that the Tribunal will conduct a preliminary hearing, as has taken place for this matter. If an application seeks documents that are clearly within the ambit of s 51 of the PI Act, then the Principal Registrar has the authority to reject such an application pursuant s 71 of the VCAT Act. The Tribunal rejects applications on a regular basis when they are judged as clearly misconceived for any number of reasons. However, in this case, the Applicant submits that the documents are not within the ambit of s 51 of the PI Act, by reason that the relevant investigation was not conducted under that Act. Therefore, the Tribunal does have jurisdiction to hear and consider an application for review of a refusal pursuant to para 50(1)(a) of the FOI Act.
3. As noted above, I accept the Respondent's alternative submission that the role of the Tribunal extends only so far as determining whether the documents in question fall within s 51 of the PI Act. If the documents are confirmed as falling within s 51 of the PI Act, then the FOI Act does not apply to them.
4. I pause briefly to note that s 51 of the PI Act is drafted under the heading of 'Exemption from Freedom of Information Act 1982'. The meaning of 'exempt' in this context is different to an exemption created within the FOI Act itself.[26]
5. Section 29A of the Ombudsman Act 1973 (the 'Ombudsman Act') is analogous to s 51(1) of the PI Act, in that it similarly provides that the FOI Act does not apply to a document that is in the possession of the Ombudsman (or any officer of the Ombudsman) to the extent to which the document discloses information that relates to:

(b) an enquiry under Part IIIA to determine whether an investigation should be conducted; or

1. Section 29A of the Ombudsman Act was considered by the Tribunal in Zeqaj v Ombudsman Victoria. In that case, the Ombudsman claimed that the documents being sought by the applicant disclosed information that related to his complaint. Deputy President Macnamara (as His Honour then was) made the following remarks as to the nature of s 29A of the Ombudsman Act:

It is not as some provisions that are to be found in the Freedom of Information Act merely the creation of an exemption under that Act subject to the usual restrictions and exceptions which operate on exemptions. If this were an ordinary exemption it would be possible to demonstrate that the public interest required it to be overridden. The cases in the Tribunal where applicants make those sorts of arguments are very common indeed. Here, Section 29A is not an exemption rather it is a provision that an entire class of documents are entirely excluded from the freedom of information regime. ...[27] [emphasis added]

1. The 'exemption' created by s 51 of the PI Act has the same effect as the exemptions created by s 29A of the Ombudsman Act, that is to take the documents outside of the regime of the FOI Act. Accordingly, there is no requirement to determine whether the s 51 document falls within an exempt category under the FOI Act. Any document which can be accurately described as being in the possession of a relevant person or body which discloses information that relates to a complaint investigated by the Director under Part 3, or an investigation under this Part (whether in relation to a complaint or otherwise), or a report on that investigation, including a report on the progress of the investigation, is excluded from the operation of the FOI Act.
2. For this reason, I regard the Applicant's submission under the heading of 'Public Interest'[28] as having no relevance to the decision under review in this matter. I have not considered them.

Do the Documents sought fall within s 51 of the PI Act?

1. The ambit of s 51 is intended to be broad. It attaches to a document which discloses information that 'relates to' the sub-categories (a) - (c). The term 'relates to' indicates '...any type of connection or relation between the two subject matters to which the words refer...'. The Court of Appeal has recently accepted the formulation of McHugh J from O'Grady v Northern Queensland Co Ltd:[29]

The prepositional phrase 'in relation to' is indefinite. But, subject to any contrary intention derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

1. The exception in s 51 applies not only to documents generated in the course of a relevant investigation, but a document which discloses information 'related to' any such investigation.
2. As recognised in Zeqaj v Office of Police Integrity,[30] 'The Chief Commissioner effectively means the Victorian Police Ethical Standards Department which carries out the investigation on behalf of the Chief Commissioner. The Tribunal in that case went on to observe:

Section 51 applies not only to a complaint investigated by the Director but also to an investigation under Part 3 of the PI Act and to a report of that investigation, including a report on the progress of that investigation. Clearly, the exemption from the FOI Act in relation to a document that is in the possession of a relevant person or body... which relates to an investigation carried out by the Victoria Police Ethical Standards Department on behalf of the Chief Commissioner pursuant to a referral by the Director is covered by s 51 of the PI Act.[31]

1. I concur with the Tribunal's finding above in Zeqaj v Office of Police Integrity.[32] It was not, as Ms Luck submits, decided incorrectly. The requested documents are documents (in the possession of a relevant person or body)[33] that would disclose information relating to an investigation under Part 3 of the PI Act. In the Tribunal's opinion, this fact is not changed by the fact that some of the investigations were referred to the Chief Commissioner for investigation pursuant to sub-s 40(2) of the PI Act.
2. This interpretation is consistent with the intention of Parliament. That intention can be seen from the Second Reading Speech, which makes clear:

For example, disclosure of an investigatory body's information and strategies may undermine its investigations and potentially jeopardise the safety of informants and OPI staff.[34]

1. It is clear that the documents in dispute relate to inquiries and investigations undertaken under Part 3 of the PI Act. So much is obvious from the Factual Background set out above, and the request of Ms Luck herself, dated 13 August 2012, in which she explains that she seeks:

...including all documents related to my complaints made by me to the Director of the Office of Police Integrity between 13 June 2012 and currently, which I, in the opinion of the Director, in accordance with section 40 of the Police Integrity Act 2008 (PIA), warranted investigation, and were purportedly referred to the Chief Commissioner of Victoria Police and which the Director refused to investigate in the public interest and of his own motion, upon my requests, in addition to documents related to my complaints made between 13 January 2012 and currently, which, in the opinion of the Director, did not warrant investigation in accordance with section 40 of the PIA...

1. The fact that two complaints were not referred for investigation does not impact upon the above analysis. The sweep of s 51 is 'so broad that entire classes of documents are likely to be covered by its curtain entirely leaving nothing which maybe released subject to editing'.[35] In this sense, even the investigation into whether or not a further investigation is warranted comes within the ambit of s 51.

1. Sub-section 75(1) of the VCAT Act provides that, at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in the Tribunal's opinion:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. As stated by Judge Macnamara in Zeqaj v Ombudsman Victoria,[36] summary dismissals should only be used in the clearest of cases, the clearest instance being where even if everything being alleged by a party is true, the law still does not grant a legal remedy.[37] I find this to be the clearest of cases, with every document sought by the Applicant being undoubtedly a document in relation to an investigation under Part 3 of the PI Act_._

1. Finally, Ms Luck has raised the issue of human rights under the Charter of Human Rights and Responsibilities Act 2006 (the 'Charter'). Mention is made to the fair hearing obligation contained in s 24. Whether Ms Luck raised human rights as an issue or not, the Tribunal is required to act in a way that is compatible with the Charter.
2. In my opinion, no aspect of the hearing or this determination has offended Ms Luck's right to a fair hearing or any other human right. Raising human rights in this context appears little more than a cynical and desperate attempt to lend weight and credibility to her submissions. Ms Luck was afforded every opportunity to have her concerns decided by a competent, independent and impartial Tribunal after a fair and public hearing,[38] her decision to leave the hearing does not alter that fact.
3. I note in passing that Ms Luck's applications, which span from the year 2000 to present, are consistently proving to be misconceived and vexatious in nature.[39] It could easily be argued that Ms Luck has been afforded a disproportionately large amount of scarce public resources in order to give her fair hearings across a multitude of Tribunal and Court applications.

1. The Applicant's review application is misconceived, in the sense that all the documents sought are clearly excluded from the operation of the FOI Act by virtue of s 51 of the PI Act. Having determined that the Respondent's decision to invoke s 51 is justified, there is nothing further to be considered by this Tribunal.
2. For these reasons, the Applicant's review application is dismissed pursuant to sub-s 75(1) of the VCAT Act.

[8] Luck v Department of Justice [2013] VCAT 416.

[10] [2008] FCA 1594, [13].

[11] The Respondent provided a number of Attachments labelled A-Q to support the summary of the factual background. On 16 August 2013, Ms Luck sent 'urgent' correspondence to the Tribunal advising that the said attachments contained documents which 'should not have been disclosed to anyone but myself'.

[18] Applicant's submissions at para 15.

[19] In any event, whether Version 066, 071 or the current version applies (Version 082), the wording of sub-para 50(2)(a) in versions 066 and 071 or sub-para 50(1)(a) in the present version applies, each confer jurisdiction on the Tribunal for the purposes of this proceeding.

[20] Applicant's submissions at para 29.

[22] Applicant's Application to the Tribunal dated 2 November 2012.

[24] [2010] VCAT 1132.

[25] [2010] VCAT 1204.

[26] See FOI Act, Part IV -'Exempt Documents'.

[28] Applicant's Submissions at paras 35 and 36.

[29] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1996) 169 CLR 356 cited with approval in Office of the Premier v Herald and Weekly Times [2013] VSCA 79, [71] per Tate JA with whom Whelan JA and Kaye AJA agreed.

[30] [2010] VCAT 479.

[32] [2010] VCAT 479.

[34] Cameron, B MP Police Integrity Bill, Second Reading Speech, Hansard 13 March 2008 (Assembly) Page 851.

[35] Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204 per Macnamara, DP, [14].

[36] [2010] VCAT 1204.

[39] I need not cite the entire list of proceedings which are publicly available, however, I do note the most recent matters before the Tribunal; Luck v Peninsula Health [2012] VCAT 481 particularly at 14-17, Luck v Victoria Police (Review and Regulation) [2013] VCAT 206; Luck v Department of Justice [2013] VCAT 416.