XYZ v Victoria Police

XYZ v Victoria Police - [2010] VCAT 255 - VCAT 2010 case summary — Zoe

[12]

XYZ was a senior constable with the Victoria Police earning about $50,000 a year. He was gambling in large amounts of money in the VIP room at the casino and seemed to be managing his bank accounts to cover his tracks. The Ethical Standards Department suspected him of being guilty of the crimes of money laundering and financial structuring. An investigation did not sustain these suspicions. It found no evidence of wrong-doing. XYZ was not charged.
XYZ says his career and health were ruined by the investigation and the manner in which it was carried out. He suffers from stress, anxiety and depression. Having been a career police officer for 20 years, he was ill-health retired. He had been a good police officer. After his retirement, he was awarded long and diligent service medals.
Not being charged is not enough for XYZ. He wants total exoneration. Having identified a number of irregularities, he wants to 'expose' the 'unlawful' and 'improper' ESD investigation. While conceding there had been some minor breaches of process and procedure, which were not deliberate, Victoria Police and ESD strongly defend the integrity of the investigation.
To obtain information in support of his case, XYZ sought access under the Freedom of Information Act 1982 to certain documents associated with the investigation. He was given access to some but not others, which Victoria Police say are exempt. This is XYZ's application for review of the decision of Victoria Police to refuse him that access.
XYZ says he needs access to the disputed documents to clear his name and expose the ESD. Victoria Police says XYZ's relatively minor criticisms do not cast doubt on the integrity of the investigation. Further, giving him access to ESD investigative documents, which are confidential, would undermine the integrity of the system for investigating police corruption and misconduct.
In the last resort, XYZ relies on the public interest override in the Freedom of Information Act. He submits that, even if the exemptions do apply, the public interest in disclosing the disputed documents outweighs the interests protected by the exemptions. In that connection, this is a test case on whether the human right of freedom of expression - to 'seek, receive and impart information and ideas of all kinds' - in the Charter of Human Rights and Responsibilities Act 2006 incorporates a positive right to freedom of information. Pointing to a strong trend in the international jurisprudence, XYZ submits it does, and calls for a more liberal approach to the interpretation and application of the public interest override.

[25]

In opening his case, XYZ emphasised six public interest issues:
- whether the ESD investigation was commenced by a Victoria Police employee with a vendetta against him
- whether the ESD investigation was triggered by the disclosure of information to ESD about XYZ contrary to the federal taxation legislation
- if so, whether the information was used contrary to that legislation, which is a criminal offence
- whether the whole ESD investigation, including the application for an execution of the search warrants, was unlawful and improper
- XYZ was thoroughly investigated yet never charged with any offence
In his closing submissions, XYZ withdrew the vendetta allegation. He also accepted there was a clear and powerful public interest in ensuring documents created during the course of an ESD investigation were not disclosed. This was an important part of ESD being able to do its job of investigating alleged corruption and misconduct by police officers. XYZ described that as the 'standard' or 'default' position.
XYZ submitted the position was different where the lawfulness or propriety of an ESD investigation was in issue. In such a case, strong public interest considerations favoured disclosure. These considerations included the exposure of the impropriety, which would clear the air and bring ESD to account.
Although XYZ abandoned the vendetta, he continued to rely on the other aspects of his public interest case. He developed his general public interest case by reference to five specific points.
First, the communication which triggered the investigation was the first disclosure by the ATO officer to the Victoria Police officer. That disclosure was in breach of s 3C(2), and indeed an offence against s 8XB(1), of the Taxation Administration Act.
Secondly, this information was used by ESD in the course of the investigation. In particular, it was used in applications to a court for search warrants, during which the information was misrepresented as having been lawfully obtained.
Thirdly, a police officer involved in the execution of a search warrant at XYZ's home damaged his front door. Another officer signed a form saying no damage had been caused during this operation.
Fourthly, the principal investigating officer made a covert tape recording of the execution of the search warrant at XYZ's home, which Victoria Police refused to disclose.
Fifthly, a senior officer of Victoria Police telephoned XYZ's elderly mother and pretended to be from the police welfare office, which greatly upset her.
It can be seen that the main difference between XYZ's case under the public interest as opened and as closed was the withdrawal of the vendetta allegation.
XYZ continued to rely on not being charged at the completion of the investigation. He contends he has been the victim of a striking and serious injustice. The investigation into and treatment of him ruined his career and his health. Access to the disputed documents would clear the air within Victoria Police concerning the investigation and help maintain the purity of public administration. He does not intend publicly to release the documents. He wants to hold ESD accountable for its actions and right the injustice which was done to him. He is prepared to limit the use of the documents to pursue appropriate investigations and legal actions and to deal with any improper conduct that may be identified.
Against that background, it is convenient to deal with the issues in this case under these headings:
- ESD investigation of XYZ
- disclosure of taxation information to ESD
- assessing the public interest
- exemptions relied on by Victoria Police
- public interest override

[26]

In April 2002, ESD received information from a confidential source, later revealed to be an officer of the Australian Taxation Office, regarding suspicious financial transactions involving XYZ. It also received information regarding his gambling activities at the casino since 1994.
On examining the information, ESD suspected XYZ might be guilty of the offence of structuring, contrary to s 31 of the Financial Transactions Reports Act 1988 (Cth). This offence involves deliberately conducting cash transactions in amounts below $10,000 to avoid electronic surveillance. It also suspected XYZ was guilty of money laundering against s 122 of the Confiscation Act 1997 (Vic).
In May 2002, the investigation was assigned to Detective Senior Sergeant Vicki Laing under the codename 'Humidity'. She commenced surveillance of XYZ. As part of the investigation, she obtained four search warrants from the Magistrates' Court of Victoria under s 3E of the Crimes Act 1914 (Cth) in respect of XYZ's bank account (July 2002), credit union account (November 2002), home (April 2003) and motor vehicle (also April 2003). Documents relating to the four warrants comprise some of the documents in dispute. Events which occurred during the execution of the warrants are relevant to other documents in dispute and to XYZ's public interest case.
After interviewing XYZ and completing its investigations, ESD referred the matter to the Office of Public Prosecutions. In late 2003, the OPP said the evidence did not support bringing charges against XYZ.
In the search at XYZ's home, a computer hard drive belonging to another officer was found to be in his possession without authorisation. XYZ said he had not returned this item due to his difficult relationship with the officer, who had been harassing him. Disciplinary proceedings were brought against XYZ. He admitted the wrong and in 2006 was given a good behaviour bond.
After the OPP said no charges should be laid, XYZ made a series of complaints to the Office of Police Integrity about his treatment by ESD. These included complaints against Detective Senior Sergeant Laing, Detective Sergeant Trevor Mucchi and Detective Sergeant George Tapai. XYZ also made a complaint to the Chief Commissioner of Police.
The complaints to the OPI and the Chief Commissioner of Police were considered by an independent inspector of police, Inspector Peter Lardner. In November 2007 the inspector found the complaints to be unsubstantiated, with three exceptions. Inspector Lardner's report was given to the OPI. It endorsed his recommendations, and ESD acted on that endorsement.
The three exceptions related to deficiencies in the procedures followed or actions taken when the search warrant was executed at XYZ's home.
First, Inspector Lardner found that Detective Senior Sergeant Laing had failed to give XYZ a statement of rights and a document relating to public interest privilege, as required by the conditions of the warrant. Secondly, the officers took copies of personal data from XYZ's home computer. Instead of destroying it after the decision not to lay charges was made, as required by s 3ZV(1) of the Crimes Act 1914 (Cth), they kept it for three years. Victoria Police conceded these two matters. Detective Senior Sergeant Laing was counselled about them. As regards the second, a mitigating factor was that Inspector Lardner had sought advice about the retention of the data and it had not been complete. In November 2007, Assistant Commissioner Luke Cornelius apologised to XYZ for ESD's failure to destroy the data. Thirdly, Inspector Lardner found the front door and wire screen of XYZ's house had been accidentally damaged during the execution of the search warrants. He recommended an apology and restitution ($557). Assistant Commissioner Cornelius gave the apology and made the restitution payment to XYZ.
XYZ later requested the Chief Commissioner of Police to further review Inspector Lardner's report. This request was rejected.
At this time, XYZ was alleging the lawfulness and propriety of the ESD investigation had been brought into question. He said the investigation was brought about by allegations made in bad faith. He referred to complaints he had made over time about three employees of Victoria Police. He particularly referred to his association with a police employee who 'blew the whistle' on the management of a large outsourcing IT contract by Victoria Police.
As to that matter, in 1999 Victoria Police signed an IT contract with IBM worth $147 million. A few months later, Geoff Cliffe, a senior employee of Victoria Police who was the director of the Business Management Department, accepted a job with that company. XYZ had worked with the Victoria Police information technology outsourcing unit for three years up to that time. Indeed, in November 1999 he was awarded a departmental commendation for outstanding service, dedication and innovation on the IT outsourcing project.
XYZ believed the ESD investigation, and other steps taken in respect of him, were in response to concern he expressed about Mr Cliffe's actions. XYZ says he was told in 2001 by a number of his colleagues to watch his back because a manager in the information technology department was trying to have him investigated because XYZ was gambling at the casino. I will go into the evidence about this aspect of the case in its proper place, but you have seen that XYZ has withdrawn the vendetta allegation.
As to the unlawfulness of the ESD investigation, XYZ relies on various breaches of the privacy provisions of the Taxation Administration Act.
XYZ contends that Detective Senior Sergeant Laing made a covert recording of the execution of the search warrant at his home. This has been denied by Detective Senior Sergeant Laing. XYZ also contends that, contrary to s 3ZV of the Crimes Act 1958 (Vic), the officers took copies of data from his home computer which they kept for three years, instead of destroying. As you have seen, Victoria Police concedes this.
Before considering the exemptions relied on by Victoria Police, I will examine a number of specific issues relating to XYZ's case under the public interest, beginning with two disclosures of information about him made by the Commissioner of Taxation to Victoria Police.
1. DISCLOSURE OF TAXATION INFORMATION TO ESD

[28]

Victoria Police concedes the officer of Victoria Police who was given the information about XYZ by the ATO officer was not an authorised law enforcement agency officer within s 3E(1) of the Taxation Administration Act. 'Strictly speaking', said Victoria Police, the disclosure was therefore a breach of the prohibition in s 3C(2), and possibly a crime against s 8XB(1), of that Act.
Victoria Police said the information disclosed in the first disclosure precipitated the ESD investigation. A little after the conversations occurred, Detective Senior Sergeant Laing was appointed to carry out the investigation.
In her evidence, Detective Senior Sergeant Laing said some of the information in the first disclosure was used by her in the ESD investigation. Some of it was used in the applications to the Magistrates' Court of Victoria for the four federal warrants. She did not know the information had been improperly obtained. She sought no advice about that issue. The information was used in the warrant applications, and implicitly represented to the court, on the basis that it had been properly obtained.
I accept the submissions of Victoria Police that the breach involved in the first disclosure was not deliberate. I would not describe it as technical. The breach meant the federal legislative protection of XZY's privacy interests failed in this respect. But the information did go to a law enforcement officer for the legitimate purpose of investigating possible crimes (structuring and money laundering). It did not, for example, go to a private recipient for an illegitimate purpose. The information could have been lawfully obtained by Victoria Police by going through the correct procedures. The magistrate who issued the warrants was not told of the breach, but that was because Victoria Police (in particular, Detective Senior Sergeant Laing) was not aware of it.
The parties made submissions about whether the warrants were invalid because the applications were supported by unlawfully obtained evidence. The principles in Bunnings v Cross[2] and Lego Australia Pty Ltd v Parragio[3] were referred to. XYZ also submitted that Victoria Police had a duty to declare to the court that the information in the first disclosure had been unlawfully obtained.
I very much doubt that the warrants would be held to be invalid on the basis of the breach (even if it amounted to a crime). But it is not for me to resolve that issue. It is enough for me to say that I take into account as a public interest consideration in favour of releasing the disputed documents that the ESD investigation was precipitated by and used, and that the warrants were obtained in reliance on, the information in the first disclosure, which was disclosed in breach of the Taxation Administration Act.
That brings me to the second disclosure and the legal submissions of the Commissioner of Taxation.

[42]

Under these provisions, disclosure of the information under the Freedom of Information Act will be prohibited if five requirements are met:
- the information was disclosed by 'the Commissioner' (s 3E(1))
- the information was 'acquired by the Commissioner under the provisions of a tax law' (s 3E(1))
- the information was disclosed to an 'authorised law enforcement agency officer' (s 3E(1))
- the Commissioner was satisfied (relevantly) that 'the information is relevant to ... establishing whether a serious offence has been, or is being, committed' (s 3E(1)(a))
- the information in the documents was disclosed under s 3E(1), (2) and (3)
The only issue in dispute in respect of the second disclosure is whether the information was disclosed to an 'authorised law enforcement agency officer' within s 3E(1) (the third requirement). XYZ did not place the other four requirements in issue.
The evidence revealed that, under a delegation from the Chief Commissioner of Police, Deputy Commissioner Kelly was an authorised law enforcement agency officer under s 3E(1). The Commissioner of Taxation was therefore permitted to disclose the taxation information about XYZ to Deputy Commissioner Kelly. The issue of compliance with s 3E(1) arises because the information was provided physically to Detective Senior Sergeant Laing, who was not an authorised law enforcement agency officer.
XYZ submits the legislative requirement is that the disclosure must be made 'to' the authorised officer. Having regard to the fundamental importance of protecting the privacy of a person's taxation information, he submits the provision should be interpreted to mean 'to' the authorised officer directly.
Unquestionably the protection of personal privacy, including the privacy of taxation information, is a value of fundamental importance. This is reflected in the provisions of s 3E and other provisions of the Taxation Administration Act. Commonwealth privacy legislation[4] and article 17(1) of the International Covenant on Civil and Political Rights also protect XYZ's privacy interests (the latter as a human right under international law). I take the fundamental importance of protecting personal privacy into account when considering the interpretation and application of s 3E.[5]
However, what happened here was simply that the authorised officer, Detective Commissioner Kelly, nominated a subordinate officer, Detective Senior Sergeant Laing, physically to receive the information on his behalf because that subordinate officer had been assigned to carry out the investigation. Under the system of command in the Police Regulation Act 1958 (Vic), Deputy Commissioner Kelly was entitled to give, and Detective Senior Sergeant Laing was obliged to comply with, a direction to that effect. This was a legitimate and practical method by which Deputy Commissioner Kelly could, by the one action, receive the documents and give them to Deputy Senior Sergeant Laing.
XYZ did not, and could not, dispute that Deputy Commissioner Kelly could have received the documents directly then instantly given them to Deputy Senior Sergeant Laing. Rather, he argued that Detective Senior Sergeant Laing could not receive the documents on behalf of Detective Commissioner Kelly at his direction. This is an absurd consequence which I would interpret s 3E(1) to avoid if it was open to do so.
The purpose of s 3E(1) is to protect the privacy interests of the individual, whilst allowing the relevant information to be disclosed to authorised law enforcement agency officers for use in criminal investigations of the kind specified in s 3E(2A). XYZ's privacy interests would be fully protected by allowing disclosure of information to subordinate officers on behalf of authorised officers at their direction. Disallowing this would unnecessarily complicate the criminal investigation process without adding anything to the protection of privacy interests.
The scheme of s 3E was intended to operate in the context of the usual arrangements for the administration of the federal and state police forces. Taking Victoria as an example, it would be expected that senior officers, such as deputy commissioners, might receive information coming within s 3E(1) through directions given to their subordinate officers. This really goes without saying. I reject XYZ's submission that, if the parliament had intended the provision to operate in such a way, it would have legislated for it expressly.
My conclusion is consistent with the reasoning in the authorities relied upon by the Commissioner of Taxation, including O'Reilly v State Bank of Victoria Commissioners[6] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd[7] and R v NGO.[8] But these cases really turned on their own facts and the particular provisions of the relevant statutes, which are the governing considerations in the present case.
In my view, where an authorised law enforcement agency officer directs a subordinate officer to receive on his or her behalf information which can be disclosed under s 3E(1) of the Taxation Administration Act, this is disclosure 'to' the authorised officer under that provision. If the subordinate officer retains the information pursuant to a direction by the authorised officer to use it for the investigative purposes specified in s 3E(2A), the information is taken to have been properly disclosed by the authorised officer to the subordinate officer for that purpose, and the subordinate officer is bound not to divulge the information by s 3E(2B). So to interpret s 3E(1) is not to add the words 'or a nominated officer' to the provision, but to interpret the word 'to' by reference to considerations of administrative necessity of which the parliament is taken to have been aware.
In conclusion, s 3E of the Taxation Administration Act was not breached in the way that information about XYZ's taxation affairs was disclosed to Victoria Police. The ESD investigation and the search warrants were not unlawful or improper to the extent that such information was used in those activities. There is no air to clear with respect to this issue. XYZ's case under the public interest is not supported by this consideration.

[52]

As we have seen, on 3 April 2003 a search warrant was executed on XYZ's home. A large number of items were seized. During this search, the police located a computer hard drive belonging to another officer which should not have been in XYZ's possession. The police took data from XYZ's computer, which they failed later to destroy. The police who executed the warrant included Detective Senior Sergeant Laing, Detective Senior Sergeant Tapai and Detective Sergeant Mucchi.
XYZ strongly contended in these proceedings that Detective Senior Sergeant Laing made a covert recording during this search. Detective Senior Sergeant Laing just as strongly denied this. Further, she said in evidence that she asked the other officers who were at the search about this matter. They told her they had made no such recording. Her searches at Victoria Police revealed no recording had been made.
Detective Senior Sergeant Laing was strongly tested in cross-examination about this issue. I found her to be an impressive witness who gave consistent and reliable answers to the questions asked of her. She consistently denied making a covert recording.
XYZ criticised Victoria Police for not calling the other officers present at the search. I do not think that was required. Senior Sergeant Laing was the principal investigating officer. As such, she was responsible for the search. It was she who was alleged to have made the covert recording.
The only significant evidence supporting XYZ's case in this regard is a covert recording he himself made of a later conversation with Detective Senior Sergeant Laing. That conversation occurred on 3 December 2003, about eight months after the execution of the warrant. Detective Senior Sergeant Laing was returning to XYZ certain property which had been seized during the search at his home. Detective Sergeant Mucchi was also present. Detective Senior Sergeant Laing identified the voices in the recording as those of that officer, herself and XYZ.
The recording was played to Detective Senior Sergeant Laing in cross-examination on 3 December 2008. She had not previously heard it. XYZ is heard to ask her what kind of tape was used in a covert recording during the search of his home. Detective Senior Sergeant Laing sounds surprised and says there was a covert tape but she could not remember which one was used. She said it could have been a memory stick.
After listening to the recording in cross-examination, Detective Senior Sergeant Laing again said there was no covert recording. She said she was guessing during the conversation covertly recorded by XYZ. I accept her evidence in this regard. In the covertly recorded conversation with XYZ, I think Detective Senior Sergeant Laing did not expect XYZ's question about what tape had been used. As she said in her evidence, she gave an answer which was intended to buy her time. She was struggling to remember what had happened at the search and was trying not to look foolish.
In cross-examination on 4 December 2008, XYZ said for the first time he had confronted Detective Senior Sergeant Laing in the kitchen of his home when the warrant was being executed on 3 April 2003. He asked her whether she was 'covertly recording this' and she replied 'yes'.
It is extraordinary that this evidence was not in XYZ's statements. It was not put to Detective Senior Sergeant Laing by XYZ's counsel in his extensive cross-examination of her on this subject. XYZ admitted in cross-examination that he had not previously informed his counsel of this conversation, and did so only after he had completed his cross-examination of Detective Senior Sergeant Laing. XYZ said he did not remember the conversation until after that cross-examination. XYZ was not re-examined by his counsel on this subject. No application to recall Detective Senior Sergeant Laing was made so the matter could be put to her.
I reject this aspect of XYZ's evidence. I think it became obvious to him during the cross-examination of Detective Senior Sergeant Laing that her evidence about there being no covert recording was likely to be accepted. The overwhelming inference is that XYZ's evidence about the conversation with Detective Senior Sergeant Laing in his kitchen was a fabrication designed to improve his case in this respect. I take this into account only in rejecting his evidence on this subject.
The evidence establishes that Detective Senior Sergeant Laing did not make a covert recording during the execution of the search warrant at XYZ's home. No public interest considerations arise out of Detective Senior Sergeant Laing's actions in this regard because she made no covert recording.

[54]

XYZ now accepts the ESD investigation did not result from information supplied by someone with a vendetta against him. He made that concession after Senior Detective Sergeant Laing gave evidence in the strongest possible terms to that effect. But it is important for the consideration of the public interest to appreciate why he was investigated.
On his own evidence, XYZ was gambling at the casino in large amounts of money. For example, he gambled on about 50 occasions in 2001, winning and losing on several occasions amounts in the range of $20,000 - $60,000. Appendix 2 presents XYZ's own record of his gambling activity during this period.
At the time XYZ was a senior constable of police earning about $50,000 per annum.
As XYZ himself admitted in cross-examination, gambling activity of this nature at a casino by a senior constable was bound to attract the attention of the authorities. I think it would be surprising and troubling if it did not.
The evidence revealed the ESD investigation commenced after information was supplied in the first disclosure by an officer of the ATO to an officer of Victoria Police. This information involved suspicious financial transactions. It caused ESD to suspect XYZ might be involved in the offence of restructuring. Information was also received from a confidential source in respect of XYZ's gambling at the casino. It caused ESD to suspect he might be involved in the offence of money laundering.
XYZ made some attempt in his complaints to the OPI and the Chief Commissioner to establish that his banking and gambling activities could not reasonably give rise to the suspicions held by the ESD. I reject that proposition. XYZ's financial transactions, which were thought to be suspicious, and his gambling activities at the casino, were obviously seen to be linked. That link was borne out by the evidence. For example, a focus of ESD's investigations was XYZ's bank accounts. On Detective Senior Sergeant Laing's evidence, these revealed deposits totalling $137,000 in August - October of 2001. As table 1 shows, this was a period of active gambling for XYZ. It was entirely proper and appropriate for ESD to investigate these matters.
The information before the ESD about XYZ's financial transactions and gambling activities demanded the investigation that was carried out. Some irregularities occurred during the investigation, but the purpose and conduct of the investigation cannot generally be called into question. Any assessment of XYZ's case under the public interest must be approached on that basis.

[57]

I will determine whether exemptions apply to the documents by reference to the exemptions as head categories, beginning with matter communicated by another State (s 29). Appendix 3 shows the exempt status of each of the disputed sample documents, as I will determine that status in this section of these reasons.
As appendix 1 shows, Victoria Police relies on this exemption in respect of sample document 88 in the first proceeding.
A document is an exempt document under s 29 of the Freedom of Information Act if two conditions are both met:
- disclosure of the document would be contrary to the public interest
- disclosure would prejudice relations between Victoria and Commonwealth or another state or territory or would divulge any information or matter communicated in confidence by the government of another country, the Commonwealth or another state or territory.
Document 88 is a letter dated 17 June 2002 from an external organisation to Victoria Police, enclosing documents pertaining to XYZ. This letter and the information it provided form part of the first disclosure. I have held the first disclosure, including document 88, was validly made by an officer of the ATO to an authorised officer of Victoria Police pursuant to s 3E(1) of the Taxation Administration Act.
Section 3E(2) of the Taxation Administration Act prohibits disclosure of information by authorised officers. By reason of s 109 of the Constitution, this provision of a federal statute prevails over any provision of the Victorian Freedom of Information Act to the extent of any inconsistency. As the provisions of s 3E(2) of the Taxation Administration Act would prevent the information in document 88 from being disclosed, access to the document is not available under the Victorian Act. It is not necessary to determine whether s 29 of the latter Act applies to document 88.
Victoria Police also claims document 88 is exempt under ss 31(1)(d) and 33(1) of the Freedom of Information Act. For the same reasons, it is not necessary to determine whether these exemptions apply.

[63]

As appendix 1 shows, Victoria Police relies on the internal working document (s 30) exemption in respect of sample documents 45, 46, 55 and 121 in the first proceeding and the one document in the second proceeding (document 1).
The documents in issue under this exemption are connected with the ESD investigation of XYZ. As the tribunal held in Marke v Victoria Police,[22] 'the investigative process conducted by ESD is a deliberative process' for the purposes of s 30(1)(a).
More specifically, document 1 comprises Detective Senior Sergeant Laing's diary entries with respect to the ESD investigation into XYZ. The diary entries record her observations during, and thoughts about the issues in, the investigation. Subject to the possible editing of the document to remove purely factual and exempt matter, it is wholly deliberative.
Document 45 is an undated memorandum of the advice given by the Major Fraud Group to Detective Senior Sergeant Laing. It discusses the issues in the investigation and options for the future course of the investigation. It is wholly deliberative. There is no scope for disclosing an edited copy.
Document 46 is a single page letter from Detective Senior Sergeant Laing to the OPP dated 5 September 2003, with a four page summary of evidence. It discusses the issues in the investigation in detail. It contains factual material, but it is embedded in the deliberative content. It is not reasonably practicable to remove it. The document is wholly deliberative within s 30(1)(a).
Document 55 is a four page report dated 18 July 2002 from Detective Senior Sergeant Laing to the officer in charge of the Corruption Investigation Division of ESD. It records and discusses the issues in the investigation, evaluates the evidence and lists a number of factors impacting on the future course of the investigation. The report is wholly deliberative and cannot be edited.
Document 121 is a probity report on Mr Cliffe, the former director of the Business Management Department of Victoria Police. Mr Cliffe is the employee who took up a position with IBM after that company was awarded the large IT contract by Victoria Police. The report was prepared by an external consultant for Victoria Police and it is advisory in nature. It examines in detail Mr Cliffe's involvement, or lack of involvement, with the outsourcing contract process and his departure from Victoria Police for the position with IBM. XYZ did not contend this document was not deliberative, but focussed his submissions on the public interest issues. I will proceed on that basis.
That brings me to whether disclosure of the documents would be contrary to the public interest within s 30(1)(b).
I agree with the decisions of the tribunal in Marke v Victoria Police[23] and Tanner v Victoria Police[24] that there is a powerful public interest in maintaining the confidentiality of the ESD investigative process. I also accept the public interest considerations relied on by Victoria Police in the present case, which I have already set out. These are well-supported by the evidence and largely conceded by XYZ.
Investigating alleged corruption and misconduct in the police force is a function of the highest public importance. Internal police investigators should be free to carry out this function without fearing that their deliberations will be disclosed. Investigating officers should be encouraged and feel able to be absolutely frank and candid, for this is fundamental to the integrity of the investigative process. There is an unacceptable risk that they will not be absolutely frank and candid if the confidentiality of the investigative process is not highly respected in public interest assessments made under the freedom of information legislation.
The public's right to know, and access to documents and government information, is a value of the first importance in democratic society. Something significant is needed, however, to outweigh the very strong public interest in maintaining the integrity of the internal processes by which alleged corruption or misconduct by police is investigated.
In the present case, XYZ relies on several factors, which I have already acknowledged to be deserving of consideration. He was investigated, but not charged. The investigation started with a disclosure made in breach of federal taxation legislation which protected his privacy interests. The information disclosed was used to obtain search warrants. When his home was searched, certain irregularities occurred in the processes which were followed. Personal information was taken, but not later destroyed, as it should have been. XYZ's property was damaged. His health was ruined by the stress of the investigation, and his career as a police officer is now over. Putting aside the investigation, he was a diligent police officer and was commended for his good service. I take all of these considerations into account as favouring disclosure in the public interest.
However, XYZ has established no basis for reasonably suspecting that the investigative process carried out by ESD was seriously deficient, let alone unlawful or improper. He understandably abandoned his allegation that the investigation was precipitated by information supplied by someone with a vendetta against him. His complaints about the irregularities which occurred were fully investigated by an independent inspector on behalf of the OPI and the Chief Commissioner. Some of his complaints were upheld and appropriate action was taken. The irregularities were not deliberate and could not, on any reasonable view, be seen to have undermined the integrity of the investigative process. It is regrettable the first disclosure was made in breach, albeit innocent, of the federal legislation, which may have been a crime. I do not think this taints the whole ESD investigation. I also take into account that the investigation was into possible crimes arising out of XYZ's financial transactions which were associated with his significant gambling activity at the casino.
As regards all of the documents in this category except document 121, on balance I think it would be contrary to the public interest under s 30(1)(b) to disclose them. The public interest in protecting the integrity and confidentiality of the process for investigating alleged police corruption and misconduct outweighs XYZ's interest in bringing ESD to account for its investigation into him. XYZ has not established any reasonable grounds for suspecting the propriety of that investigation should be called into question. With the exception of document 121, I therefore uphold the claim by Victoria Police that these documents are exempt from disclosure as internal working documents.
As regards document 1, I think the reasons for maintaining the confidentiality of Detective Senior Sergeant Laing's notes are just as strong as for the other documents in this category. The notes contain her ongoing evaluation and consideration of the issues in the investigation, in varying degrees of detail. It is significant that the notes are those of the principal investigating officer in an internal police investigation. That makes the public interest against their disclosure stronger. Having regards to the duty of the court to ensure a fair trial, production of such notes may be ordered in criminal proceedings. The public interest in protecting their confidentiality under the freedom of information legislation is not any the less in consequence.
I have considered whether document 1 can be provided to XYZ in edited form. A heavily edited version has already been provided to him. Victoria Police has removed most of its content because it comes within one or other of the exemptions claimed. As regards the internal working document exemption, and the other exemptions which I consider below, I do not think there is any further scope for providing the document to XYZ in a less edited form. Having looked at the document, it is not reasonably practicable to do so.
As to document 121, this stands in a different category. As you have seen, the report concerns the circumstances surrounding Mr Cliffe's involvement in the management of that part of Victoria Police which was responsible for awarding the large IT contract to IBM, and with him becoming an IBM employee soon afterwards.
The evidence establishes that the circumstances I have just described were very controversial at the time and attracted publicity, both then and since. There was a subsequent Auditor General's report in 2003 which went into the matter in some detail. That report published the findings in the probity report. I also note the relevant events occurred in 1999, which was a decade ago.
Chief Superintendent Peter McDonald gave evidence on behalf of Victoria Police about the probity report. Both in his written and oral evidence, he identified a number of considerations against disclosure of the report. However, in his oral evidence he made some honest concessions. In respect of the disclosure of the report, he accepted that the circumstances in which Mr Cliffe went into IBM's employ engaged the strong public interest of ensuring the purity of public administration. He also said the consequences of disclosing the report would not be very great because its findings had been released in the subsequent Auditor General's report. As he put it, it is now 'water under the bridge'.
I do not think disclosing the probity report would prejudice the integrity of the process of investigating police corruption or misconduct.
For these reasons, on balance, I do not think it would be contrary to the public interest to disclose document 121. The probity report is not exempt as an internal working document. I will deal separately with the personal privacy exemption (s 33) claimed in respect of this document.
Documents 1, 45, 46 and 55 are exempt under s 30(1) (internal working documents). Document 121 is not. It is unnecessary to determine the exempt status of document 85 under s 30(1) as it is clearly exempt in full under s 32(1) (see below).

[69]

Victoria Police relies on the exemption in s 31(1)(c) in respect of documents 1, 4, 15 and 55.
The purpose of the exemption in s 31(1)(c) is to preserve the anonymity of people who are confidential sources of information in relation to the enforcement or administration of the law. One aspect of this general purpose is the protection of the anonymity of persons who provide confidential information to those responsible for investigating alleged police corruption and misconduct.
This exemption protects the identity of confidential sources of information, not the identity of reluctant witnesses in legal proceedings, or the identity of such witnesses pending hearing.[26] Whether a person was a confidential source of information about the enforcement or administration of the law is a question of fact to be determined by reference to all of the circumstances.[27] The obligation to maintain confidentiality can be express or implied,[28] and may be inferred from the nature and contents of the document, as revealed by reading it.[29]
Persons providing information to police officers responsible for investigating alleged police corruption or misconduct would usually assume their identity, as the source of the information, would be kept confidential. Confidentiality of the identity of the source would be the usual basis, and necessary condition, of their voluntary participation in the investigative process.
The evidence shows that complaints regarding inappropriate police behaviour or corruption, malfeasance or serious misconduct are usually generated by members of the public. ESD regards information or complaints about police corruption and misconduct, and the identity of the source of such information, as extremely sensitive. It treats such information, and the identity of the source, with the utmost confidence. There are strict procedures for storing and managing access to such information. This would be the natural expectation of persons providing such information to ESD.
In cases where the integrity of the investigative process is itself legitimately called into question, the public interest override might impact on the disclosure of such information, notwithstanding it is exempt under s 31(1)(c). The fact that it is vital for ESD to establish and maintain relationships of trust with members of the force and the public would be a consideration to be taken into account. Section 31(2)(a) and (b) might also have application in such circumstances.
Turning to the disputed documents in this category, we have seen that document 1 comprised Detective Senior Sergeant Laing's diary entries. Detective Senior Sergeant Laing said in her evidence that the entries identified individuals from whom she obtained information confidentially for the purposes of the investigation. I accept that evidence, which is supported by my own reading of the document. Document 1 is exempt under s 31(1)(c) to that extent.
Document 4 comprises the applications for the four search warrants. Detective Senior Sergeant Laing said in her evidence that the applications disclosed the identity of one confidential source of information, being the officer of the ATO who made the first disclosure. My inspection of the documents reveals that only the applications with respect to XYZ's credit union and bank account disclose that individual's identity.
Where the personal affairs of a person may be disclosed by the release of documents under the Freedom of Information Act, s 53A requires them to be given notice of proceedings in the tribunal. In their response to being given that notice, the ATO officer concerned - person F - objected to the release of their name on several grounds, but not on the ground that they were a confidential source of information.
On this basis, XYZ submits that person F did not consider themselves to be a confidential source. I do not accept that submission. The grounds given were appropriate to the personal affairs exemption in s 33. In their response under s 53A, it was not directly relevant for person F to refer to the confidential nature of the communication.
The individual concerned was an executive officer with the ATO. XYZ submits that such a person is more akin to a potential witness than a confidential source of information. I do not accept that submission.
Where an executive government employee, including one in the ATO, provides information about alleged police corruption or misconduct to those responsible for investigating such matters, they will usually be doing so confidentially, just as much as other informers will do so on that basis. The evidence establishes that the ESD treated the ATO officer as a confidential source of information. I infer from that, and from the nature and content of the communications, that the officer was providing the information confidentially. I reach the same conclusion in relation to the casino employee identified in document 15 (see below).
XYZ submits document 4 is excluded from the operation in s 31(1)(c) and (d) because it reveals that the scope of a law enforcement investigation exceeded the limits imposed by law. That is especially so because the applications for the warrants used information unlawfully obtained in the first disclosure, and also represented that information to have been lawfully obtained.
The scope of the law enforcement investigation being carried out by ESD was whether XYZ had committed the crimes of structuring and money laundering in respect of his gambling activities and financial transactions. The applications for the search warrants which comprise document 4 related specifically to those issues and therefore came within that scope. In scope, the investigation into those matters was not unlawful or improper.
An irregularity occurred in the course of the investigation. ESD received the information in the first disclosure in breach of the privacy provisions in federal tax legislation. That does not mean the scope of the investigation exceeded the limits imposed by law. It means an irregularity occurred in the investigation being carried out within that scope. I therefore reject XYZ's submission that s 31(2) applies to document 4.
Someone providing information confidentially about alleged police corruption or misconduct does not lose the protection of s 31(1)(c) because of an irregularity in the course of an investigation which is otherwise lawful in scope.
Document 4 is exempt under s 31(1)(c) to the extent that it identifies or allows the identification of person F.
Document 15 is a 19 page ESD file management log for the period 2 March 2002 - 12 December 2003. Detective Senior Sergeant Laing said in her evidence that this document identified several sources of confidential information, including person F and a confidential source from the casino. I accept Detective Senior Sergeant Laing's evidence in this regard, which is supported by my own reading of the document. Document 15 is exempt under s 31(1)(c) to that extent.
Document 55 is the four page report dated 18 July 2002 from Detective Senior Sergeant Laing to the officer in charge of the Corruption Investigation Division of ESD. Detective Senior Sergeant Laing said in her evidence that this document referred to one confidential source of information directly and to several indirectly. I accept that evidence, which is supported by my own reading of document 55. This document is exempt under s 31(1)(c) to that extent.
Documents 1, 4, 15 and 55 are exempt under s 31(1)(c) (disclosure of confidential sources of information).
There are no documents in this category, otherwise exempt, which could be released with the deletion of the identities of the confidential sources of information.

[71]

Victoria Police relies on the exemption in s 31(1)(d) in respect to documents 1, 4, 15, 21, 41, 43, 45, 46, 48, 55 and 88.
I note Victoria Police made no claim for exemption under s 31(1)(d) with respect to document 69, which is perhaps surprising.
A document will be exempt under s 31(1)(d) if its disclosure would, or would be reasonably likely to, disclose methods or procedures for the enforcement or administration or the law and that disclosure would, or be reasonably likely to, prejudice the effectiveness of those methods or procedures.
Section 31(1)(d) does not apply to the release of documents disclosing methods or procedures which are wide-spread and well-known.[30]
A disclosure will be 'reasonably likely' to prejudice the effectiveness of the relevant methods or procedures if there is a chance that is real, rather than fanciful or remote, and not necessarily more likely than not, of the prejudice occurring.[31]
The decision of the Court of Appeal in Victoria Police v Marke[32] concerned the personal privacy exemption in s 33(1), but it has implications for the proper interpretation of s 33(1)(d). I will therefore analyse that judgment here.
The Court of Appeal (by a majority) decided that the issue of unreasonable disclosure in the context of the personal privacy exemption was not to be approached on the basis that disclosure under the Freedom of Information Act was necessarily disclosure to all the world.[33] Weinberg JA and Pagone AJA, with different degrees of emphasis, held the tribunal was bound to consider the extent of the likely dissemination in an appropriate case.
Weinberg JA held the tribunal was not bound to consider the extent of the likely dissemination in every case.[34] The tribunal was 'entitled to assume that once a document is made available, it has the potential to be disseminated widely and that indeed may happen.'[35] That assumption would 'hold true in the vast majority of cases.'[36] Consideration of this issue would be 'a burdensome, and indeed pointless, exercise, which in the vast majority of cases will be of no relevance.'[37] However, where a person seeking access to information puts the issue of dissemination 'squarely in issue', the tribunal is bound to consider it.[38] In undertaking the balancing exercise involved in s 33(1), the tribunal could take into account that dissemination would be to the applicant personally, on a confidential basis, in circumstances where wider dissemination was unlikely.[39]
Pagone AJA held that the balancing exercise in s 33(1) should not be approached upon the assumption that dissemination will be to 'all the world'.[40] There could be no 'a priori exclusions' of particular considerations, such as the likely extent of disclosure.[41] That consideration was material to the evaluation and judgment which s 33(1) required.[42] Thus the probable lack of dissemination beyond the applicant might be a determining factor in a decision to order release of the document.[43]
Both Weinberg JA and Pagone AJA referred to the difficulty of enforcing any assurance or undertaking given by an applicant not to disseminate a document.[44] Once a document was released, it moved beyond the control of the tribunal, which was a relevant consideration.[45] Nor was the tribunal bound to accept an applicant's word on the subject of dissemination. This is Pagone AJA:[46]

[75]

While I accept this is XYZ's genuine present intention, the tribunal cannot effectively hold him to it. Once documents are disclosed to him under the Freedom of Information Act, he is free to use and disseminate the information in them for any purpose and to any extent he wishes. If XYZ believes he could advance his purpose of holding ESD to account by publishing the information, he is likely to do so. His words of limitation are rather open-ended ('the pursuit of the appropriate investigations and legal action to deal with any improper or unlawful conduct that might be identified').
Further, in terms of the reasonably likely prejudicial effect of any disclosure by XYZ, I take into account the law enforcement purposes which s 31(1)(d) was enacted to protect. Dissemination of information about police methods and procedures can seriously undermine the integrity of the investigative process. Therefore the tribunal would need to be very confident that the applicant would not disseminate information of that kind obtained by him under the Freedom of Information Act before taking that into account in determining a document was not exempt under s 31(1)(d). That would surely be an exceptional kind of case. I am far from being in that state of confidence in respect of XYZ.
For those reasons, in this case, I therefore approach the application of s 31(1)(d) on the basis that any disclosure of the documents to XYZ would not likely stop with him. There is a real risk that XYZ would disseminate the information.
Returning to the documents, we know that document 1 comprises Detective Senior Sergeant Laing's diary notes in respect of a period in the investigation.
These diary notes reveal the methods and procedures which Detective Senior Sergeant Laing used in the ESD investigation. Anyone reading the notes would be able to infer the content of those methods and procedures from the activities which she describes. As a former police officer, XYZ would have some knowledge of these procedures in general terms. I am not satisfied he has a complete knowledge. In any event I am not satisfied any disclosure would stop with him. I reach that same conclusion with respect to the other methods and procedures described in the other documents at issue under this category.
Current police investigative methods and procedures, especially those used to investigate alleged police corruption and misconduct, largely depend for their effectiveness on the targets not knowing how they will be investigated. Disclosure of document 1 would reveal information of that kind. It would be reasonably likely to prejudice the effectiveness of the investigative methods and procedures of ESD.
Document 4 comprises the applications for the four warrants. These contain information from which the ESD investigative methods and procedures can be inferred. They contain a significant degree of explicit description of these methods and procedures, as Detective Senior Sergeant Laing deposed. Releasing document 4 would disclose those methods and procedures.
Document 15 is the ESD file management log. It actually describes many of the investigative activities which were undertaken. Those activities reflect ESD's methods and procedures, which could be inferred if the document was to be disclosed. I accept Detective Senior Sergeant Laing's evidence that most of the document is descriptive of ESD's investigative methods and procedures.
Document 41 is a letter dated 21 November 2002 from Detective Senior Sergeant Laing to an external organisation requesting assistance. The letter and its contents reflect a certain investigative procedure which releasing the document would disclose. I accept Detective Senior Sergeant Laing's evidence that the request in itself, and the letter in its contents, are methods and procedures of ESD.
Document 43 is an ESD application for assistance dated 2 October 2002 from Detective Senior Sergeant Laing. It seeks activation of a certain investigative method or procedure which releasing the document would disclose. Its contents also reflect other methods and procedures. XYZ knows the assistance requested was surveillance. The document goes much further than simply requesting surveillance. By reference to ESD's methods and procedures, it sets out the details of the investigation. I accept Detective Senior Sergeant Laing's evidence that the whole of the document falls into this category.
Document 45 is the undated memorandum of the advice regarding XYZ received from the Major Fraud Group by Detective Senior Sergeant Laing. It records discussions about the steps taken, and others which may be taken, in the context of the status of the investigation at that point. The advice and the discussions, including those steps, constitute investigative methods and procedures which releasing the document would disclose.
Document 46 is a letter dated 5 September 2003 (with a summary of evidence) from Detective Senior Sergeant Laing to the OPP. It summarises and discusses the evidence, including the means by which it was obtained. It describes the course of the investigations and seeks certain advice. The letter seeking the advice, and the contents of the letter and the summary, are ESD investigative methods and procedures which releasing the document would disclose. It is similar to document 4 in this respect.
Document 48 is the Operation Order for Operation Humidity and is dated 31 March 2003. It is itself an ESD method or procedure, and it describes other investigative methods and procedures in detail, especially with respect to the execution of warrants. Releasing the document would disclose those methods and procedures. I base this finding on my reading of document 48 and Detective Senior Sergeant Laing's evidence about it.
As we have seen, document 55 is a report dated 18 July 2002 from Detective Senior Sergeant Laing to the officer in charge of the Corruption Investigation Division of ESD. It describes the steps in the ESD investigation to date and the further steps proposed. The steps taken and proposed fit into those ESD investigative methods and procedures which were being carried out, which release of the document would disclose. As Detective Senior Sergeant Laing deposed, its entire contents fall into this category.
I repeat, document 88 is not accessible under the Freedom of Information Act because its disclosure is prohibited by s 3E(2) of the Taxation Administration Act.
In respect of all of the documents in this category, s 31(1)(d) applies. Releasing the documents would disclose ESD investigative methods and procedures. It is reasonably likely - in the sense of it being a real chance - that the disclosure would prejudice the effectiveness of ESD investigative methods and procedures. The prejudice is not just a potential prejudice. I reject XYZ's submissions to that effect.
Documents 1, 4, 15, 21, 41, 43, 45, 46, 48 and 55 are exempt under s 31(1)(d) (disclosing investigative methods or procedures). It is not necessary to consider document 88 for the reasons already given.
In respect to no document is it reasonably practicable to remove the information which would disclose the ESD investigative methods and procedures such that the rest of the document might be released.

[83]

Victoria Police relies on the exemption in s 33(1) in respect of documents 1, 4, 15, 48, 55, 69, 88 and 121.
The information in the disputed documents in this category relates mainly to the names and addresses of people, which relate to their personal affairs by reason of the express provisions of s 33(9), and in some cases to other information such as telephone numbers, occupations and similar information, which relates to their personal affairs within the general meaning of that expression in s 33(1).
I will record here that, with every document in this category, I have taken into account my finding, on the evidence in this case, that disclosure of the information relating to the personal affairs of the individuals concerned is not likely to stop with XYZ. There is a real chance he will use the information in a way that involves its wide dissemination.
I also record here my conclusion that, except with respect to document 69, it is not reasonably practicable to edit any of the documents in this category so as to release them with personal information deleted. The information is embedded in the otherwise exempt content of the documents.
As we have seen, document 1 comprises Detective Senior Sergeant Laing's diary notes.
There have been four responses under s 53A in respect of document 1. I do not accept the assertions in some of the responses that release of the documents might result in harm being done to the individuals concerned. This was not supported by Victoria Police, who did not rely on s 33(2A), which requires this consideration to be taken into account when it is relevant. I otherwise take the responses into account.
I do not accept XYZ's submission that, where an individual affected has not provided a response under s 53A, disclosure is not likely to be unreasonable. There may be many reasons why an individual has not provided such a response, including a desire to rely on the opposition of Victoria Police to release of the relevant documents. The proper course is to determine whether it would be unreasonable to disclose the personal affairs of the individual in the absence of such a response, taking the other relevant considerations into account.
As a public interest consideration favouring release, I take into account XYZ's particular reasons for wanting access to the information relating to the personal affairs of the individuals concerned. This forms part of his particular interest in having access to the information in the disputed documents. He wants to expose ESD and obtain full exoneration.
However, the considerations against disclosure are overwhelmingly stronger, especially these:
- the individuals are named, and their personal details are recorded, in the context of a confidential ESD investigation into crimes which XYZ was suspected of committing
- where the individuals provided information to Detective Senior Sergeant Laing, they did so confidentially as part of that investigation
- there is a general public interest in maintaining the confidentiality of such investigations, including the personal details of named persons
- while some irregularities occurred in the course of the investigation, XYZ has not established that the general integrity of the investigation can be called into reasonable question
I am therefore of the view that disclosure of document 1 would involve the unreasonable disclosure of information relating to the personal affairs of the individuals concerned. It is exempt to that extent.
Document 4 contains the applications for the search warrants.
There has been one response under s 53A in respect of document 4 - from person F (the ATO officer who made the first disclosure to an ESD officer). I take it into account with the same qualification.
The considerations for and against disclosure which I identified with respect to document 1 apply equally to document 4.
With document 4, there is an additional consideration in favour of release. The individual whose personal affairs would be disclosed (person F) is the ATO officer who made the first disclosure in breach of s 3E(2) of the Taxation Administration Act. That disclosure breached the legislative protection of XYZ's privacy interests.
On balance, however, this consideration is not sufficiently strong to outweigh the considerations against disclosure.
I am therefore of the view that release of document 4 would involve the unreasonable disclosure of information relating to the personal affairs of the individuals concerned. It is exempt to that extent.
Document 15 is the ESD file management log.
There have been four responses under s 53A in respect of document 15, including one from person F. I take these into account with the same qualification.
The considerations for and against disclosure which I identified with respect to document 1 apply to document 15. So does the additional consideration favouring release of person F's details which I identified with respect to document 4. The considerations in favour of maintaining the confidentiality of the ESD investigation, including the affairs of the individuals concerned, outweigh the considerations in favour of disclosure.
I am therefore of the view that disclosure of document 15 will involve the unreasonable disclosure of information relating to the personal affairs of the individuals concerned. It is exempt to that extent.
Document 48 is the Operation Order for Operation Humidity.
There is one response under s 53A in respect of document 48 - from person F. I take it into account with the same qualification as I did with document 4.
Document 48 falls into the same category as document 4. The considerations in favour of maintaining the privacy of the personal affairs of the individuals named in the document outweigh those in favour of disclosure, even taking person F's role in making the first disclosure into account.
I am therefore of the view that disclosing document 48 would involve the unreasonable disclosure of information relating to the personal affairs of the individuals concerned. It is exempt to that extent.
Document 55 is the report from Detective Senior Sergeant Laing to the officer in charge of the ESD Corruption Investigation Division.
There was one response under s 53A in respect of document 55 - from person F. I take it into account with the same qualification as I did with respect to document 4.
Document 55 also falls into the same category as document 4.
I am therefore of the view that the disclosure of document 55 would involve the unreasonable disclosure of information relating to the personal affairs of the individuals concerned. It is exempt to that extent.
Document 69 is an ESD member profile on XYZ.
There is no s 53A response in respect of document 69.
As the description of document 69 indicates, the subject of the profile is XYZ himself.
The evidence on this document is scant. According to Detective Senior Sergeant Laing, it is an internal ESD document giving information about XYZ as a person being investigated. It includes historical information about him. It goes beyond personal details to include information relating to previous investigations.
As I have mentioned, s 33(2) excludes the operation of the personal privacy exemption in s 33(1) with respect to matter in a document that relates to the person seeking access to it. In this case, this excludes the application of s 33(1) to matter in document 69 that relates to XYZ. Most of the matter in the profile falls into this category and is therefore not exempt under s 33(1).
However, some other individuals are named in this document. The context in which the individuals are so named is the ESD investigation into XYZ, the profile having been prepared for the purpose of that investigation. The contents of document 69 also reveal that most of the other references to the personal affairs of the individuals concerned also relate to police investigations, which raises confidentiality considerations.
By reference to the same balance of considerations I identified in respect of document 1, the considerations in favour of protecting the privacy of the personal affairs of the individuals named in document 69 (except XYZ) outweigh the considerations in favour of disclosing that information.
I am therefore of the view that disclosing the personal affairs of the individuals named in document 69, except XYZ, would be unreasonable. It is exempt to that extent.
It is not necessary to consider the issue of giving XYZ access to document 69 in redacted form as it is exempt under s 35(1)(b) (see below).
Document 121 is the probity report into Mr Cliffe. Mr Cliffe has filed a s 53A response in which he opposes release. I have taken it into account.
Although document 121 contains information relating to the personal affairs of Mr Cliffe, that information relates almost entirely to his work with Victoria Police and IBM, not to matters concerning his health or similar issues. Having regard to the circumstances in which he left the employ of the former to join the latter, and the controversy this created, I do not think it would be unreasonable to disclose the report. There has already been public disclosure of the findings of the report, and the relevant events occurred 10 years ago.
Documents 1, 4, 15, 48 and 55 are exempt under s 33(1) (documents affecting personal privacy). Document 69 is not exempt under s 33(1) in respect of XYZ, but in respect of other people. Document 121 is not exempt.
It is not necessary to consider document 88 for the reasons already given.

[87]

The obligation of confidence may be expressed or implied from the circumstances of the case. In that connection, the context of the communication is taken into account. For example, if the statutory framework requires the information to be kept confidential, it can be inferred it was provided confidentially.[67] Similarly, it can be inferred from the nature of ESD enquiries that information was provided confidentially.[68] As the question is whether the information or matter was 'communicated' in confidence, it is necessary to consider the position from the perspective of the communicator.[69] However, that perspective may also be inferred from the circumstances.
The 'reasonably likely' element of the impairment test in s 35(1)(b) means 'more probable than not'.[70]
There is no general public interest test in s 35(1)(b). The question is whether disclosure of the information under the Freedom of Information Act would be contrary to the public interest in the single respect specified.
I accept XYZ's submission that, in applying the impairment test in s 35(1)(b), the agency would be less likely to be impaired by disclosure from obtaining similar information in the future from police officers, and others in a similar position. As was held in Porter v Victoria Police,[71] 'officers of Victoria Police are a robust group of individuals not easily cowed by threats of disclosure'.[72]
I do not accept XYZ's submissions that the provision of the information must have been absolutely confidential. On those submissions, if it was contemplated that the information might later be produced in court, or extracts given to the defence in the context of a prosecution,[73] the information was not communicated in confidence within s 35(1). In my view, all aspects of the circumstances surrounding the communication of the information, and the nature of any agreement as to how and when, if at all, the information could be used, are relevant in determining whether it was communicated in confidence. Information may be received confidentially even if it is understood that it might later be used by the police in legal proceedings.

[88]

Victoria Police relies on the material obtained in confidence exemption in s 35(1)(b) in respect of documents 4, 15, 48 and 69.
As to the four warrant applications in document 4, I have already decided they contain confidential sources of information and are exempt to that extent under s 31(1)(c).
Detective Senior Sergeant Laing said in her evidence, among other things, that document 4 contained information provided by confidential sources. In my view it is implicit in the nature of her role as the principal ESD investigator that the information communicated to her by these sources was so communicated in confidence.
The warrant applications record a significant volume of information. My reading of document 4 is that the applications contain a mix of information obtained from police, government and civilian sources. From the context of the ESD investigation in which the information was obtained, and the nature of the information, I infer it was provided confidentially within s 35(1). I make this finding in respect of all three of the sources.
The next question is whether disclosure would offend the impairment principle in s 35(1)(b). In my view it would. Maintaining the confidentiality of information provided confidentially in the course of investigating police corruption and misconduct is indispensable to the integrity and effectiveness of the investigation. Police officers, government employees and members of the general community would be less likely to provide information to those investigating the police if they believed the information might later be released to the targets of the investigation or disseminated even more widely. That is so generally and also specifically with respect to the information in document 4, which was relevantly provided confidentially to ESD investigators in respect of XYZ.
Document 15 is the ESD file management log. I have already found it contains confidential sources of information and it is exempt to that extent under s 31(1)(c).
From my reading of document 15, it contains a significant amount of information obtained in confidence. It describes who was contacted during the ESD investigation, and the information they provided. It too describes information obtained confidentially from police, government and civilian sources. I infer from the nature of the ESD investigation, and the information supplied, that the information was obtained confidentially from all of these sources.
Disclosure of the information in document 15 provided confidentially would offend the impairment principle in s 35(1)(b) for the same reasons as with document 4. Further, it is not reasonably practicable to redact the document. The material which is exempt under s 35(1) is embedded in the document and intertwined with other exempt matter.
Document 48 is the Operation Order for Operational Humidity.
With respect to document 48, Victoria Police did not rely on the exemption relating to revealing the identity of confidential informers (s 31(1)(c)).
Although the content of document 48 is less, the nature of the information in it is similar to the ESD file management log (document 15). It is exempt under s 35(1) for the same reasons.
Document 69 is XYZ's member profile.
Victoria Police did not claim document 69 was exempt under s 31(1)(c) or (d). It is not clear why. As to s 31(1)(c), it may be because most of the sources of the information are not identified. With respect to s 31(1)(d), I can see no discernable explanation.
As regards XYZ, I have rejected the claim to exemption for document 69 under s 33(1) (personal affairs) in respect of the information relating to XYZ because of the exclusion in s 33(2) to information relating to applicants. The information in document 69 mainly concerns XYZ.
Detective Senior Sergeant Laing's evidence made clear XYZ's member profile was prepared for the purposes of the ESD investigation into his gambling activities and financial transactions. From her evidence and my reading of document 69, it contains a lot of detail about the history of XYZ's service as a police officer and personal details, previous investigations and various assessments of and concerning him.
It is clear from the context of the ESD investigation into XYZ in respect of which the information in document 69 was obtained, and the content of the information, that it was provided confidentially. Details of this kind concerning a serving police officer would not have been supplied on any other basis.
From my reading of document 69, much of the information it contains was provided by sources external to Victoria Police. It is well established that s 35(1) applies to such information. This is the main scope of the operation of s 35(1).
However, from my reading of the document, some of the information it contains was provided to ESD by sources internal to Victoria Police, but external to ESD. In this case, I think s 35(1) applies to these communications as well.
ESD is a separate department of Victoria Police with the specified and independent function of investigating alleged police corruption and misconduct. It has its own senior command structure and highly confidential file management system, as well as its own dedicated operating procedures. It is a semi-autonomous unit within Victoria Police, as one would expect having regard to its functions. The information in this category was supplied to ESD by officers in other parts of Victoria Police, who were external to ESD, for use in ESD's investigation of XYZ. It is mainly factual in nature. This is not a case, like Sportsbet v Department of Justice,[74] where the information is advisory and was provided to a minister by those directly responsible for advising the minister. I do not think the information in this category would have been supplied, except confidentially.
As to s 35(1)(b), I think disclosure of the information supplied confidentially in document 69 would more probably than not impair Victoria Police's information-gathering capacity in the future. With respect to the information obtained confidentially from external sources, my reasons are the same as for document 4. With respect to the information obtained confidentially from inside Victoria Police but external to ESD, information of this nature would only be supplied if it was to remain confidential. The mechanisms within Victoria Police whereby information can be provided to ESD would break down if the internal source could not rely on the information remaining confidential within ESD.
Document 69 is therefore exempt as a document containing material obtained in confidence under s 35(1).
Documents 4, 15, 48 and 69 are exempt under s 35(1)(b). It is not reasonably practicable to redact the documents.

[97]

XYZ contrasts s 10.1.34(2)(b), which permits disclosure by enforcement agencies in the performance of their functions, with s 10.1.32(1)(b), which permits regulated persons to disclose protected information 'to an enforcement agency for the purpose of law enforcement'. In his submission, 'function' in s 10.1.34(2)(b) is wider than 'law enforcement' in s 10.1.32(1)(b), and includes the function of giving access to non-exempt documents.
In this law enforcement context, the purpose of s 10.1.34 is to prevent third party disclosure of information about the affairs of people which has been supplied to law enforcement agencies by (relevantly) the gambling regulator.
The general purpose of the confidentiality regime in Part 1 of Chapter 10 of the Gambling Regulation Act is to protect the confidentiality of information about people which (for example) the gambling regulator has acquired in the performance of its functions under the legislation. Thus s 10.1.30 creates a general duty of confidentiality preventing the regulator (among others) from recording or disclosing such information except for the legislatively specified purposes.
The purpose specified in s 10.1.32(1)(b) is law enforcement. The regulator is only permitted to disclose the information to a law enforcement agency for that purpose. The third-party disclosure provisions in s 10.1.34(2)(b) have to be read with the single permitted purpose in 10.1.32(1)(b) in mind.
So read, s 10.1.34(2)(b) refers to law enforcement functions of the kind which support the law enforcement purposes for which the information may be disclosed under s 10.1.32(1)(b). The provisions permit protected information to be disclosed to a law enforcement agency for law enforcement purposes and by a law enforcement agency for functions of that kind. A law enforcement agency which receives potential information for law enforcement purposes under s 10.1.32(1)(b) is not permitted by s 10.1.34(2)(b) to disclose it for non-law enforcement functions. That would be inconsistent with the general purpose of the confidentiality regime, which is to protect the confidence of information about the affairs of individuals from disclosure. It would also be inconsistent with the specific purpose of s 10.1.34, which is to prevent third-party disclosures from defeating that confidentiality regime. Section 10.1.34(2)(b) is not a back door through which a third party with information which is otherwise protected and confidential may sneak.
The capacity of Victoria Police to release non-exempt information is not a law enforcement function of Victoria Police which, under s 10.1.34(2)(b), operates as an exception to the confidentiality regime in the Gambling Regulation Act. To the contrary, s 10.1.34 is an enactment specifically applying to information of the kind contained in the disputed documents in this category, and prohibits information of that kind from being disclosed. For these reasons, the documents are exempt under s 38.
Information relating to XYZ's taxation returns was included in document 4 (the four warrant applications), among others. Jeffrey Joseph, an auditor employed by the ATO, deposed that the ATO would not stop providing information to Victoria Police under s 3E of the Taxation Administration Act if information of that kind was released to XYZ in this case, assuming it had not been released under that provision in the first place.
This is to be expected. Section 3E is a statutory mechanism for obtaining information which officers of the ATO would comply with whenever it was activated. On Mr Joseph's evidence, release of such information previously outside the mechanism would not prevent Victoria Police from obtaining similar information from ATO inside the mechanism. I take this into account, but only as regards information which might potentially be provided by the ATO under s 3E, which is a narrow class of information.

[144]

XYZ submitted the public interest override in s 50(4) of the Freedom of Information Act, given the enactment of the Charter, should no longer be interpreted to permit release only when it was demanded or necessitated, or in irresistible or other cases where there was no practical alternative, the tribunal considered having regard to the public interest. It should now be interpreted to allow access to be granted when it was in the public interest to do so, in the sense of when it was appropriate or suitable to do so. Further, the power did not now require a balancing of public interests protected by the relevant exemptions against public interests in favour of disclosure. Rather, the tribunal had to consider the public interest elements in favour of disclosure, taking into account the bare fact that the document was exempt. XYZ submitted a public interest override limited to compelling and irresistible cases rendered the exemptions practically absolute and denied the centrality of the public interest override in the statutory scheme.
It was submitted the tribunal was a public authority and bound to apply the Charter. It was an entity established by statutory provision with functions of a public nature.[161] Further, in the tribunal's review jurisdiction, it was acting in an administrative and not judicial capacity. Therefore, the Charter did not exclude the tribunal from being a public authority.[162]
XYZ submitted the Charter applied to both the 2006 and 2007 applications. It was common ground it applied to the latter. As to the former, XYZ submitted the relevant transitional provision was s 49(3), for which the operative date was 1 January 2008. The tribunal was bound to apply the Charter whenever it acted as a public authority after that date. The transitional provision in s 49(2) did not apply because 'proceedings' there meant 'legal proceedings' or 'judicial proceedings'. This did not cover proceedings of an administrative nature in the tribunal.
Although nothing much turns on it, I do not accept this submission. Section 49(2) means the Charter cannot affect proceedings commenced or concluded before 1 January 2007.[163] In Kracke v Mental Health Review Board,[164] I held the reference in s 49(2) to 'proceedings' referred to proceedings in a court or tribunal. Further, in the context of the right to a fair hearing in a civil case in s 24(1) of the Charter, I analysed the concept of a 'civil proceeding', which I held to be applicable to proceedings of an administrative character in VCAT.[165] Review proceedings in cases arising from the Freedom of Information Act fall into the same category. Therefore the Charter does not apply to the 2006 application. It does apply to the 2007 application.
Virtually all of the submissions of the parties applied to both the 2007 and the 2006 applications. The parties invited me not to distinguish between the two, as XYZ could simply make another application to take advantage of any favourable decision on the human rights issues. As will be seen, it has proved possible for me to do so.
XYZ submitted the interpretative obligation in s 32(1) of the Charter formed part of the context in which statutory provisions were interpreted in the first instance.[166] Section 32(1) did not become applicable only after ambiguity had been identified. Section 32(1) required the tribunal to adopt the most human rights-compatible interpretation. In this case, that was the one proposed by XYZ. The approach of Tipping J in R v Hansen[167] should not be followed. The obligation in s 32(1) was to interpret 'human rights' not 'human rights as limited by s 7(2)'. The judgment of Elias CJ in R v Hansen was to be preferred.
XYZ submitted the international human right of freedom of expression included the positive right to obtain the information sought. He relied on the decision of the Inter-American Court of Human Rights in Claude-Reyes v Chile,[168] the decision of the Court of Appeal of Ontario in The Criminal Lawyers' Association v The Ministry of Public Safety and Security,[169] the decision of the Strasbourg court in Matky v Czech Republic,[170] the decision of the Supreme Court of India in Gupta v India,[171] the decision of the Human Rights Committee in Gauthier v Canada[172] and the reports of the Special Rapporteur to the Human Rights Commission (now the Human Rights Council). The latter stated important principles to be followed, including the principle of maximum disclosure and the need for a public interest override provision.
From the decision in Gupta,[173] XYZ submitted three propositions emerged: the human right of freedom of information in the Indian constitution included a right to know and the principle of open government; any areas of secrecy should be attenuated as much as possible; and an overly strict interpretation of a public interest override provision would preserve, rather than attenuate, secrecy.
From the decision in Criminal Lawyers' Association,[174] XYZ submitted that freedom of information legislation was enacted to facilitate freedom of information, and any restriction on the legislation would limit freedom of expression. Therefore, any such legislation must be compatible with freedom of expression as a human right.[175] Further, the public interest override was a disclosure provision, not a secrecy provision. In cases in which it applied, it was intended to allow exempt information to be disclosed.
From the decision in Matky,[176] XYZ submitted that where freedom of information legislation was enacted, any limitation in the legislation engaged the human right to freedom of expression (interpreted broadly) and had to be judged accordingly.
XYZ submitted a human rights compatible approach to freedom of information legislation was one that best protected and promoted the right to freedom of expression. That would be an interpretation which led to maximum disclosure of information. The objects of the Freedom of Information Act should be kept at the fore. The right of access should be interpreted liberally and the exemptions narrowly.[177]
In XYZ's submissions, the human rights compatible interpretation of 'requires' in s 50(4) was 'as appropriate or suitable in the particular case', being a dictionary meaning of the word.[178] That means disclosure could be ordered when it was determined by the tribunal to be in the public interest to do so. This would only be in cases where the public interest factors in favour of disclosure were sufficiently strong to override the fact that the documents were exempt. This did not involve a balance process.
XYZ said the approach of the Court of Appeal in Secretary, Department of Premier and Cabinet v Hulls[179] and Secretary, Department of Justice v Osland[180] was not human rights compatible, because making the test was seen to be 'stringent', and reserved for cases where there was no practical alternative, or for 'irresistible cases' or for cases which 'necessitated' or 'demanded' disclosure. This was the most restrictive interpretation possible of the provision.
It was submitted s 50(4) did not make the purpose of the exemption a relevant consideration, by comparison with the relevant provisions in (for example) Ontario, which did.
XYZ submitted the proper approach to interpreting human rights was progressive, not originalist. The scope and content of the right to freedom of expression could not be ossified by reference to travaux preparatoires.
It was submitted someone could access documents not only pursuant to the general right in s 13 of the Freedom of Information Act, but also outside the legislation as recognised in s 16(1) and pursuant to the public interest override in s 50(4). The interpretation of s 50(4) adopted by the Court of Appeal in Hulls and Osland limited XYZ's human right to freedom of expression because it limited the scope of his capacity to access documents under s 50(4).
Although XYZ submitted the human right to freedom of expression included a right to obtain the information, he did not need to go that far in this case. He did not need to seek recognition of a positive constituent of the right to freedom of expression. Consistently with the negative conception of the right as a freedom from government interference, and relying on the decision of the Court of Appeal of Ontario in Criminal Lawyers' Association[181] he submitted that, where the government had legislated in favour of freedom of information, the legislation should be interpreted compatibly with the nature of the right. In any event, the distinction between positive and negative rights was not altogether clear.
It was submitted this was not a case where the applicant had sought government assistance to facilitate his expressive rights. Therefore the Dunmore[182] factors did not have to be made out. Rather, XYZ's right to freedom of expression was limited by the overly-restrictive interpretation of s 50(4) adopted in Hulls and Osland. Acceptance of his submissions did not imply the creation of a parallel FOI regime.
XYZ said his request for information about the ESD investigation was an expressive act in human rights terms. The expressive content was his desire to clear his name. He had questioned the propriety of the investigation and would be using the information to bring legal action. The use of documents to scrutinise and question the propriety of a police investigation was plainly expressive.
XYZ submitted the public interest override provisions in comparable jurisdictions overseas were different to those in s 50(4) of our Freedom of Information Act. The Ontario provision required a 'compelling' public interest, the South African provision referred to something 'clearly outweighing' the exemption, the Indian provision referred to the public interest in disclosure 'outweighing' the 'harm to protected interests'. The principle in New South Wales was closer to the Victorian public interest override, and worked well.

[145]

Victoria Police submitted the freedom to seek and/or receive information did not include the right to be provided with the information by an unwilling speaker. Even if it did, the exemption regime in the Freedom of Information Act (taken with the public interest override) amounts to a reasonable and justifiable limitation within ss 7(2) and 15(3) of the Charter.
Victoria Police supported the four-step approach of applying the Charter, following Tipping J in R v Hansen.[183] I adopted a similar approach in Kracke v Mental Health Review Board.[184] Victoria Police made reference to s 3(1) and (2) of the Freedom of Information Act and the democratic principles mentioned in the second reading speech for the legislation. It acknowledged the separate capacity of government to release information, as recognised in s 16.
After listing the exemptions, Victoria Police turned to the public interest override in s 50(4). It relied on Secretary, Department of Premier and Cabinet v Hulls[185] and Secretary, Department of Justice v Osland (No 2)[186] and, in this tribunal, Judge Harbison's decision in Asher v Department of Premier and Cabinet[187] that s 50(4) imposed a 'high bar'.[188]
As to the content of the right to freedom of expression, Victoria Police submitted it was expressed as a freedom, not a right. Freedom of expression could not include a right to be given the information because this would limit the rights of others not to do so - especially of an 'unwilling speaker'. Also, it would mean governments would have to take positive action to facilitate access to the information, which human rights did not normally require.
Victoria Police relied on academic criticism of extending the right in the positive direction.[189] It submitted many of the documents in dispute were prepared by individuals. To force them to express by ordering release of documents containing their views engaged their right to freedom of expression. Victoria Police accepted this did not carry much weight with government employees, but it might with the horizontal application of the Charter to documents containing the private views of civilians.
Victoria Police submitted that, however close the connection between freedom of information and freedom of expression, most jurisdictions had rejected freedom of information as a constituent of freedom of expression. Freedom of information and freedom of expression were inter-related but distinct. It relied on the several decisions to that effect of the Strasbourg court, especially Leander v Sweden,[190] and the authorities on this subject in the United States Supreme Court.[191]
As to the purposes of the Charter, Victoria Police referred to the right to engage in public life in s 18(1), and its connection with freedom of information in s 15(2), and the decision of the Human Rights Committee in Gauthier v Canada.[192] It was submitted that Claude-Reyes v Chile[193] was distinguishable because there was no statutory freedom of information regime in Chile; the court enforced an obligation which the Charter did not have. The decision of the Supreme Court of India in Gupta v India[194] was likewise distinguishable. There too there was no freedom of information legislation. The legislation passed since[195] contains a public interest override provision not unlike s 50(4).
Victoria Police submitted the Supreme Court of Canada had dealt with the issue of positive obligations very cautiously and subject to precise principles.[196] It submitted the decision of the Court of Appeal of Ontario in The Criminal Lawyers' Association v The Minister of Public Safety and Security[197] was contrary to the accepted approach in that country, under appeal and should not be followed. The result could not have been achieved without finding that freedom of expression incorporated the positive right to obtain information, which the court did not do. In any event, the facts of that case were clearly distinguishable from the present case.
Victoria Police submitted that, as freedom of expression did not encompass freedom of information, the Freedom of Information Act did not limit the right to freedom of expression in s 15(2) of the Charter. If freedom of expression did encompass freedom of information, any restriction in the legislation was reasonable and justifiable. Victoria Police referred to s 15(3) and s 7(2), relying on each.
As to s 15(3), Victoria Police submitted that any restriction in the Freedom of Information Act was 'lawful' because they were legislative. The exemptions protected the 'rights ... of other persons' (s 15(3)(a)) or 'public order' (s 15(3)(b)). The exemptions 'were reasonably necessary' (s 15(3)) and proportionate. Victoria Police relied on Gauthier v Canada.[198]
Victoria Police referred to the Siracusa Principles of the United Nations Commission on Human Rights,[199] which specify what is meant by 'necessary' and 'public order' in the equivalent to s 15(3) provision in article 19(3) of the ICCPR. This is expert advisory material on the interpretation of article 19(3), to be contrasted with the aspirational statements of a Special Rapporteur which were not authoritative. As stated in article 22 of the Siracusa Principles, respect for human rights was part of maintaining public order.
As to s 7(2), Victoria Police submitted the rights in the Charter were not absolute. Applying the factors in s 7(2)(a)-(e), any limitations were justified. Referring to the decision of the Constitutional Court of South Africa in S v Manamela[200] and Hollingworth J in Sabet v Medical Practitioners Board of Victoria,[201] Victoria Police submitted the 'minimal impairment' test in s 7(2)(e) only required the limitation to be within a reasonable range of alternatives.
Victoria Police submitted the Freedom of Information Act (including s 50(4)) was not incompatible with human rights and therefore should not be re-interpreted under s 32(1). It illustrated this point by reference to the Council of Europe Convention on Access to Official Documents,[202] with which the Freedom of Information Act exemptions and public interest override were entirely consistent.
It was submitted the tribunal should apply s 50(4) by taking into account the interests protected by the exemptions. Contrary to XYZ's submissions, the tribunal should not ignore anything but the bare exempt status of the document.
It submitted the tribunal should not rely on the opinion of the Special Rapporteur to the United Nations Commission on Human Rights, as this was a political rather than a jurisprudential body. The jurisprudential function was performed by the Human Rights Committee, whose decisions did not support the broad interpretation of freedom of expression. I was taken to the structure of the United Nations within which the commission and the committee operated. It was submitted the opinion of a Special Rapporteur did not constitute international law.
Victoria Police submitted the history of the development of the ICCPR, as discussed by leading authors,[203] did not support a broad interpretation of freedom of expression. I was taken to the travaux preparatoires of the ICCPR[204] and the ECHR,[205] which were negotiated closely together. It was submitted the travaux were not very illuminating. Victoria Police noted a positive obligation submitted in the drafting process of the ICCPR by the UN Conference on Freedom of Information was not included in the ICCPR.[206]

[146]

For the Attorney-General, the Solicitor-General submitted that there was no occasion for re-interpreting s 50(4) of the Freedom of Information Act pursuant to the special interpretative obligation in s 32(1) of the Charter because s 50(4) did not engage XYZ's rights to freedom of information in s 15(2) of the Charter. That was because s 50(4) imposed no limit or interference on that right, as its scope was properly to be understood.
When interpreting s 50(4), the Attorney-General submitted the proper approach was to understand the text (which was primary) of the provision purposefully and contextually.[207] It was submitted that legislation would not be interpreted so as to limit fundamental rights recognised by the common law without ambiguous language.[208] That is the principle of legality I discussed in Kracke v Mental Health Review Board.[209]
Relying on the decision of Sir Anthony Mason in the Hong Kong Final Court of Appeal in HKSAR v Lam Kwong Wai[210] and Tipping J in R v Hansen,[211] the Attorney-General submitted the interpretation of s 50(4) according to the standard principles of interpretation must precede the application of s 32. As I have said, I adopted this broad approach in Kracke.[212] I emphasise, however, the importance of identifying the scope of any relevant human right. This is essential in the engagement stage of a human rights analysis, which calls up the standard principles of interpretation, including the principle of legality.
As to the ordinary meaning of s 50(4), the Attorney-General relied on the judgment of Phillips JA in Secretary, Department of Premier and Cabinet v Hulls.[213] It was submitted that 'requires' in s 50(4) involved an imperative and a weighing of considerations. The Attorney-General also relied on the stress placed on the word 'required' by Hayne J in Osland v Secretary, Department of Justice.[214] It was necessary to weigh the public interests protected by the applicable exemptions (not just the brute fact of the exemption itself) against the particular public interest considerations favouring release which the applicant had established. If, after weighing the competing public interest considerations, the tribunal was convinced the public interest overall required release, in the sense of necessitating or deeming it, then it could exercise the authority in s 50(4) to override the exemption and order release.
On the application of the Charter to the public interest override in s 50(4), the Attorney-General submitted the relevant question was:

[148]

Turning to the right to freedom of expression in s 15(2) of the Charter, the Attorney-General made four points.
First, the right involved negative protection of the freedom from interference with gaining access to information. It did not create a positive right to receive information that would entail a correlative obligation on the government to provide the information sought. In reliance on international authorities, it was submitted the right to freedom of expression in s 15(2) did not expressly or implicitly impose any such obligations.
Second, the public interest override did not limit, but rather enhanced, access to information. It permitted access to information when, in the discretion of the tribunal, the public interest required it.
Third, the premise of the operation of s 50(4) was that the applicant had no right of access to the disputed documents because it was exempt.
Fourthly, if s 50(4) was to be more broadly interpreted by reference to freedom of information considerations, this did not mean a narrower interpretation of s 50(4) inevitably limited freedom of information, which was the critical question for the purposes of the Charter.
The Attorney-General then submitted that, if s 50(4) did (on its ordinary interpretation) limit XYZ's human right to freedom of expression, the limitation was justifiable under s 15(3) and s 7(2) of the Charter. Reliance was placed on the several public interests which might be seen justifiably to limit freedom of expression in particular cases.
The Attorney-General submitted that s 50(4), if it was a limit on the right to freedom of expression, was justified because the right was particularly susceptible to limitation. The purpose of the override was to protect the essential public interests in the exemptions (which should only be overridden if the public interest required it). The override was applied by the tribunal at a high level in the review process. There was a rational and proportionate connection between the purpose of the limitation (the defeat of statutory exemptions otherwise provided for in the legislation). The need for an opinion formed by reference to what the public interest demands did not reflect an over-reach by the legislature. The limitation fell within the range of reasonably available alternatives for provisions governing disclosure under freedom of information legislation.
It was submitted the right to freedom of expression in s 15(2) of the Charter included the freedom to seek, receive and impart information or ideas. He referred to various written constitutions and bills of rights which protected this right. Section 15(2) was modelled on article 19 of the ICCPR, which was in turn based on article 19 of the Universal Declaration of Human Rights.
It was submitted the right to freedom of expression generally served the end of the discovery of truth in the free marketplace of ideas, individual fulfilment and autonomy, the proper or better functioning of a representative democracy and a check on the power of the State. It was one of the most important rights in an open and free Victorian democracy, but it could be permissibly abridged by justified limitations reflecting the rights of others.
The Attorney-General submitted that freedom of expression, in international law, was generally regarded as a negative right or liberty - a freedom from government restraint. The right prohibited interference with the exercise of the freedom, rather than imposed a duty to facilitate it. This was reflected in the terms of article 19 of the ICCPR, which involved negative protection of a freedom and rejection of the socialist conception of a positive facilitation of a right.
Reliance was placed on the description of freedom of expression in negative terms by the Human Rights Consultation Committee in Victoria, which said the right 'means that people have the right to hold opinions without interference. People also have the right to express themselves freely, subject to some limitations.'[215]
It was true that freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms had been interpreted to require positive state action in certain circumstances. However, that had only been found required once - in Dunmore v Ontario (Attorney General)[216] - and subject to the tight principles expounded in that case. XYZ's submissions did not address the 'Dunmore factors', which illustrated the superficiality of his case. Among the issues not considered was whether the disclosure obligation applied to all types of information or whether it was limited to information connected with participation in the political process.
The Attorney-General accepted there were connections between freedom of information legislation, such as our Freedom of Information Act, and the right to freedom of expression, as in s 15(2) of the Charter. For example:
- the acts of requesting and providing information may be expressive acts protected by the right to freedom of expression
- there is an overlap between the purposes of freedom of information legislation and freedom of expression as a human right - they both enable people to participate meaningfully in the political process
- the state's obligation of disclosure under freedom of information legislation may conflict with the freedom of expression rights of others, such as those whose views are recorded in the documents sought.

[150]

Turning to XYZ's submissions on the Charter, the Attorney-General submitted the submissions could only succeed if the right to freedom of expression in s 15(2) was found to have a positive constituent. The compatibility of s 50(4) of the Freedom of Information Act with s 15(2) of the Charter could only be determined after the scope of the right to freedom of expression had been determined. The vague principle of 'maximum disclosure' had no basis in the right to freedom of expression as a human right in international law or in s 15(2) of the Charter.
The Attorney-General submitted the broad proposition that freedom of expression included a right to access information was not supported in international law.
Moreover, the Attorney-General submitted XYZ had not articulated the relationship between the alleged right to access government-held information and the access regime in the Freedom of Information Act. If XYZ's broad proposition was correct, people could obtain access to information outside that legislation, which did not limit other means (see s 16(1)). Yet those means would not be subject to the exemption regime in the legislation, would not need to be based on a written request and would not have the benefit of transfer provisions (such as those in s 25A). In other words, the Charter would have created 'a direct, independent and free-standing' avenue for access to government-held information. Nothing in the extrinsic materials suggests the parliament intended the Charter to create a scheme to rival or replace the Freedom of Information Act. The failure to describe coherently the relationship between freedom of information as a human right and freedom of information legislation was an essential flaw in XYZ's submissions.
The Attorney-General submitted the enactment of the Freedom of Information Act did not improve the argument in favour of broadly interpreting the right to freedom of expression in s 15(2). The Parliament had gone further in the Freedom of Information Act than adherence to human rights obligations required. This did not feed back into those human rights obligations so as to widen their scope. Independent of the legislation, there was no positive right to freedom of information.
The Attorney-General submitted the tribunal should not follow The Criminal Lawyers' Association v The Ministry of Public Safety and Security[217] and Matky v Czech Republic.[218] It was submitted that both were inconsistent with the scope of freedom of expression as a human right protecting the freedom to seek information, not as a right to obtain information. In any event, in these cases the applicant had an existing right to access information, which someone relying on s 50(4) did not have. The public interest override only applied in respect of exempt documents, for which there was no such right.
Those substantial submissions of the parties, which were of great assistance to the tribunal, raise a number of fundamental issues about the nature of the human right of freedom of expression, both the international law and in s 15(2) of the Charter specifically. I will deal with the issues in that order.

[153]

Without doubt, the relationship between freedom of information and international human rights is a very important one. From the beginnings of the United Nations in 1945, freedom of information was seen to be part of human rights. Even before the UDHR was made in 1948, the United Nations was attempting to protect and enhance freedom of information.
The connection between freedom of information and human rights, and the steps taken by the United Nations in this area, may be ascertained from the Yearbooks of the United Nations in the early years of the organisation, as well as the various resolutions of the General Assembly, the Economic and Social Council and the Commission on Human Rights.
In 1946, the assembly authorised the holding of a conference of all members on freedom of information. It declared that:[219] 'freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.' It went on to declare:[220] 'freedom of information implies the right to gather, transmit and publish news anywhere and everywhere without letters. As such it is an essential factor in any serious effort to promote the peace and progress of the world.'
This resolution should be read in the light of the provisions of the United Nations Charter 1945. In the preamble to the Charter, the founding nations reaffirmed their 'faith in fundamental human rights, in the dignity and worth of the human person ...'[221] The purposes of the United Nations specified in the Charter include 'promoting and encouraging respect for human rights and for fundamental freedoms'.[222] By its resolution on freedom of information, the assembly was linking that aspect of human rights to the very purposes of the United Nations.[223]
The Economic and Social Council was responsible for organising the conference. That work was done by a sub-commission of the Commission on Human Rights of the council, which was established in 1947. The sub-commission had two principal functions: examining what rights, obligations and practices should be included in the concept of freedom of information and making preparations for a United Nations conference on freedom of information.
The United Nations Conference on Freedom of Information was held in Geneva in March-April 1948. The conference formulated three draft conventions, including a draft convention on freedom of information, and passed a number of resolutions directed at encouraging and protecting freedom of the press. The conference also considered what draft article on freedom of expression would be put to those responsible for drafting the UDHR. The work of the conference was recorded in a report known as the Final Act.[224]
Following the lead of the assembly, the conference saw freedom of information to be a fundamental human right which was part of the human rights of freedom of thought and expression. It resolved: 'Freedom of Information is a fundamental right of the people, and is the touchstone of all of the freedoms to which the United Nations is dedicated, without which world peace cannot well be preserved ...'.[225] It went on to resolve that 'everyone shall have the right to freedom of thought and expression: this shall include freedom to hold opinions without interference; and to seek, receive and impart information and ideas by any means and regardless of frontiers ...'[226] The draft article on freedom of expression which the conference drafted for inclusion in the UDHR was in the same terms.[227]
The conference adopted a draft convention on freedom of information. The preamble dealt with the broad philosophical basis of the convention, and not only in terms of governmental accountability and democratic participation. It said:[228] 'the free interchange of information and opinions, both in the national and in the international sphere, is a fundamental human right and essential in the cause of peace and for the achievement of political, social and economic progress'. The preamble went on to say that 'by this means' the state parties would 'co-operate fully with one another to promote the peace and welfare of mankind'.[229]
The draft convention specified a number of obligations for contracting states, subject to a series of qualifications. As to the obligations, it is sufficient to refer to clause 1(a):[230]

[156]

It is clear from the draft convention and the resolutions that the conference saw the media as having a special role in promoting and disseminating news, information and ideas. A strong focus of the conventions and the resolutions was on protecting and enhancing the media, and on preventing undue government interference, rather than on government disseminating information itself.
Following consideration by the Economic and Social Council,[233] the General Assembly received the report of the conference and resolved that 'freedom of information and the Purposes of the United Nations are indivisible'.[234] The connection between freedom of information and human rights could hardly have been made clearer or stronger. The assembly appointed a committee to prepare a draft convention.[235]
Work towards preparing a draft convention on freedom of information proceeded at the committee level under the auspices of the Commission on Human Rights and the Economic and Social Council. By 1951, the main clause of the draft convention had evolved to include a 'freedom to seek, receive and impart' (emphasis added) information, reflecting article 19 of the UDHR.[236] Due to the wide divergence of views on the subject,[237] especially about the scope of the limitations,[238] work towards the convention did not proceed as the assembly had anticipated.
To continue the focus on freedom of information, in 1952 the Economic and Social Council established a rapporteur on matters relating to freedom of information, for an experimental period of one year.[239] Further, in 1959, it resolved to consider a declaration on freedom of information to sit along the UDHR.[240] A draft declaration was prepared. It was in further evolved form. It referred to the terms of article 19 of the UDHR. It declared that the right was 'fundamental to the respect for other rights and fundamental freedoms, since no other liberty is secure if men cannot freely convey their thoughts to one another.' Under the heading 'Everyone has the right to seek and convey information and ideas', article 1 stated that the 'right to know and the right to seek the truth are inalienable and fundamental rights of men.'[241]
The Economic and Social Council transmitted the draft to the general assembly in 1960.[242] The assembly deferred consideration of the subject in 1962.[243] No declaration was ever made.
This account shows that freedom of information was seen to be a fundamental human right of central importance to the purposes of the United Nations, which included recognition of the dignity and worth of every individual. The United Nations recognised that freedom of information was essential to the promotion of peace and political, social and economic progress in the world. The philosophy behind freedom of information, as articulated by the General Assembly of the United Nations and its constituents, was a broad one. The philosophy encompassed but it was not confined to the values of governmental accountability and democratic participation. The 'right' to freedom of information was expressed in terms of the 'freedom' of individuals to 'seek, receive and impart' information. It did not expressly incorporate a general right of access to government-held information. The role of the free media in disseminating news, information and ideas was seen to be crucial.

[177]

The socialist view, which would have required state parties to take comprehensive measures to ensure the right, did not prevail.[263] The final text was based on article 19 of the UDHR and (among other things) on the draft put forward by the United Nations Conference on Freedom of Information.[264]
Nowak says article 19(2) protects the 'freedom to seek, receive and impart information', which he describes as the 'right actively to seek information, which goes beyond mere passive reception'.[265] It relates to all 'generally accessible information'.[266]
Nowak discusses the scope of the right to freedom of expression in terms of its negative and positive content. The content of the negative aspect 'is beyond doubt', and 'at least' gives the individual a protection against interference in respect of generally accessible information.[267] But it was 'more difficult' to say whether the right to seek such information 'obligates the States parties in certain cases to guarantee with positive measures access to State or private information or make information available themselves.'[268] The right to be so informed 'is still largely unrecognized in case law'.[269] Nowak then goes on to discuss Gauthier v Canada,[270] which was and is the main decision of the Human Rights Committee on the subject.
The author (complainant) was the publisher of an irregular newspaper. The Parliament allowed a private press gallery to administer the accreditation system for access to its sittings. Full and temporary members got access to publicly funded facilities, including a working space, telephones, library and designated seats in the public gallery, where they could take notes. Temporary members had less privileges. Non-members had no privileges and had to sit in the visitors seats in the public gallery, where they could not take notes. Mr Gauthier was refused permanent membership, but was granted temporary membership from time to time. He alleged his right to freedom of expression under article 19 was infringed.
The committee held 'the accreditation system operates as a restriction of article 19 rights'.[271] Mr Gauthier's exclusion from access to Parliament's media facilities and to a seat where he could take notes constituted 'a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information.'[272] Read with article 25(a) (taking part in public life), article 19.2:[273]

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The court rejected the applicant's claim under article 10. It followed Leander v Sweden[298] to hold that, 'in the circumstances of this case, Article 10 does not embody an obligation on the State concerned to impart the information in question to the individual.'[299] You will note again the reference to the circumstances of the case.
Another case where the court upheld the claim under article 8 but not article 10 was Guerra v Italy.[300] The applicants lived near a high risk chemical factory and were endangered by its emissions. They complained that the authorities were not taking appropriate action to reduce the risks, and had failed to provide them with information about the risks and what to do in case of accidents. They alleged (relevantly) a breach of articles 8 and 10.
As to article 8, the court held this was a case where the interference could only be constituted by the government's failure to act. The factory had released toxic emissions which had threatened the health of the residents. Some 150 people had been hospitalised due to arsenic poisoning. The residents had been denied access to essential information, which would have enabled them to access the risks to the local families. The court held this represented a failure by Italy to fulfil its obligations to secure the applicants' right to respect for private and family life.[301]
As to article 10, the court rejected the argument that the applicants' right to freedom of expression required the government to take positive steps to collect and disseminate information about the risks to the local residents, including information not generally available. It again followed Leander v Sweden,[302] holding that there was no public obligation 'in circumstances such as those of the present case'.[303] It is to be noted that the positive obligation rejected was the broad one to collect, process and disseminate information. A positive obligation simply to give access to government-held information is narrower. The reference to the circumstances of the case will again be noted.
Lastly, the applicant in Roche v United Kingdom[304] was a serviceman who was subjected to chemical testing. After suffering medical conditions linked to the tests, he sought access to any relevant medical records. He complained the records provided to him were not complete. The government did not assert there was any pressing reason to deny the applicant access to the withheld information. The applicant alleged a breach of his article 8 and 10 rights.
As to article 8, the court followed Gaskin v United Kingdom[305] and Guerra v Italy[306] and other precedents, holding that the applicant's request for information related to his legitimate interests in his own health. The government had a positive obligation under article 8 to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information about the risks to which he was exposed.[307] The government had provided some information, but had done so ad hoc and not in a structured way.[308] Its failure to disclose all the relevant information was a violation of article 8:[309]

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As to article 10, the applicant contended that his right to seek access to information had been violated. He contended the right to obtain the information was an important part of the protection in article 10. The court again followed its earlier jurisprudence to decide there was no positive obligation to disseminate information.[310]
I can begin my examination of the more recent cases, in which is emerging a trend towards a broader interpretation of article 10, with Segerstedt-Wiberg v Sweden.[311]
The security police kept secret records on the political activities of the five applicants, which were released to them only in part. The applicants lost their administrative appeal for the full records, and alleged violation of articles 8 and 10.
As to article 8, following its earlier jurisprudence, the court held the storage of the information was itself a breach of the applicants' right to respect for private life.[312] Considering first the continued storage of the information already disclosed to the applicants, the court held the storage was not justified with respect to all but the first applicant. In her case, the information was stored for her own protection. In the case of the others, the continued storage of the information was not necessary for national security or other reasons.[313]
Considering second the refusal to advise the applicants about the full extent of the information kept, this too was an interference with the applicants' right to respect for private life.[314] But the refusals were justified. Having regard to the wide margin of appreciation available to the authorities, the interests of national security and fighting terrorism prevailed over the applicants' interests. There was therefore no breach of article 8 in this respect.[315]
As to article 10, the court held the unjustified storage of personal data relating to the political opinions and affiliations of the applicants, and which was a breach of article 8, was ipso facto an unjustified interference with their right to freedom of expression. There was also a breach of article 10 with respect to all but the first applicant.[316]
The courts took a step further towards a broader interpretation, one which recognised that freedom of expression can involve a right of positive access to government-held information, in Matky v Czech Republic.[317]
The applicant sought access to information about construction of a nuclear power plant. A provision of the applicable building and construction legislation permitted that access if the request was justified. The request was refused due to commercial-in-confidence and terrorism considerations. The applicant alleged a breach of article 10.
In an admissibility decision, the court endorsed its previous jurisprudence that article 10 did not impose a positive obligation on the government to collect and disseminate information of its own notion. Nor did it create a general right of access to data and documents of an administrative character.[318]
However, access to government-held documents was a different matter. The court decided:[319]

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The court went on to hold that the interference was justified because the decision to refuse access was not arbitrary and the nuclear power plant required a high level of security. The information sought was technical and did not relate to the environmental impact of the plant, which was the main subject of the applicant's concern.[320]
The court took a further step again in Tarsasag A Szabadsagjogokert v Hungary.[321]
The Hungarian Civil Liberties Union had sought access to details of a complaint laid by a member of the Hungarian Parliament before the Constitutional Court. The complaint requested constitutional scrutiny of some recent amendments to the Criminal Code concerning certain drug-related defences. The court denied the union's request on the ground that the information was personal and could not be provided without the author's consent. The union's administrative appeal was dismissed.
The union was a non-government organisation whose declared aim was to promote fundamental rights as well as strengthen society and the rule of law in Hungary.
The government conceded the refusal to give access to the information was a breach of article 10.[322] It argued that the interference was justified.
Under Hungarian law, access to information held by a court which was personal in nature did not have to be disclosed.[323]
The union argued that receiving and imparting information was a pre-condition to freedom of expression, since nobody could form or express a well-founded opinion without knowing the relevant and accurate facts. Article 10 imposed a positive obligation on states with respect to information already at their disposal. The obligation was not to bar access to the information. The disclosure of government-held information fell within the applicant's article 10 right to 'receive' it. Freedom of expression was more than an absence of censorship.
The court held the public had 'a right to receive information of general interest'.[324] That is why the court carefully scrutinised any interference with the press, which was one of society's watchdogs 'in the public debate on matters of legitimate public concern'.[325]
The court held the interests protected by article 10 did not 'allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information.'[326] Just as the court protected journalists who wished to gather information to create forums for public debate, so would it protect non-government organisations, such as the union. It too was a 'social watchdog'.[327]
The court held the Hungarian court had interfered with the union's article 10 rights by creating an administrative obstacle to the legitimate gathering of the information, which the union needed to engage in public debate. It had also interfered with the union's right to impart information, for it wanted to gather the information to impart it.[328]
In deciding whether the interference was justified, the court noted its earlier decisions.[329] But, citing Matky v Czech Republic,[330] the court said it 'has recently advanced towards a broader interpretation of the notion of "freedom to receive information" ... and thereby towards the recognition of a right of access to information.'[331] In any event, the present case involved in interference 'by virtue of the censorial power of an information monopoly', which had been exercised against a body performing the functions of a social watchdog, 'rather than a denial of a general right of access to official documents.'[332] As in cases involving freedom of the press, the government 'had an obligation not to impede the flow of information sought by the applicant', given that the information was ready and available and did not have to be collected.[333]
On the alleged 'personal' nature of the information, 'it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights'.[334]
The court held the interference with the applicant's freedom of expression was not justified and therefore violated article 10.

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The Criminal Lawyers' Association v The Ministry of Public Safety and Security[335] concerned the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms, in the context of the public interest override provision in s 23 of the Freedom of Information and Protection of Privacy Act 1990 (Ont). I have already set out the terms of the provision.
A judge stayed a murder trial on grounds of material non-disclosure by the prosecution, making very critical remarks about the police, including abusive conduct, deliberate editing of useful information and negligently failing to maintain original evidence. The provincial police investigated and issued a press release saying there was no evidence of a deliberate attempt to obstruct justice.
The association was a non-government organisation which monitored the criminal justice system. It was concerned about the discrepancy between the judge's findings and the outcome of the investigation by the provincial police. It sought access to documents concerning that investigation, which was refused in part. To resist access to the report of the provincial police and other documents, the government relied on a range of exemptions, including solicitor-client privilege. The exemption claims were upheld, but the Information Commissioner applied the public interest override to order release of the documents to which it applied. The commissioner could not do so with respect to the documents to which solicitor-client privilege applied because this was excluded from the operation of the override by the terms of s 23.[336]
The Court of Appeal for Ontario (LaForme JA, MacFarland JA concurring; Juriansz JA dissenting) held that s 23 of the Freedom of Information and Protection of Privacy Act unjustifiably limited the applicant's right of freedom of expression as guaranteed in s 2(b) of the Charter because s 23 did not allow solicitor-client privilege to be overridden when the public interest compellingly required it.[337]
The majority did not approach the case on the basis that there was a constitutional right to know.[338] Indeed, LaForme JA found that access to government information was 'an entitlement that is vested solely through legislation and not as a specific constitutional right.'[339] A right of access to government information had been specifically and intentionally rejected when the Charter was considered by the Canadian Parliament.[340]
However, the majority found the public interest override provision infringed the association's right to freedom of expression because (relevantly) the scheme of the freedom of information legislation was to assist expression. It followed that any limits in the legislation restricted expression.[341] Where freedom of information legislation was passed, the legislation must be enacted consistently with the right to freedom of expression. A blanket exemption based on solicitor-client privilege, without the possibility of overriding the public interest, was not so consistent.[342] The limitations in the legislation restricted expression in purpose and effect. The expression that was restricted would promote two values underlying the freedom, 'truth and democracy'.[343]
LaForme JA went on to consider the issue of justification. Applying the test in R v Oakes,[344] his Honour found the lack of a public interest override for solicitor-client privilege cases was lacking in proportionality, especially because this went beyond the minimum impairment necessary to meet the legitimate purposes of restricting access in certain cases.[345] The majority ordered that s 23 of the Freedom of Information and Protection of Privacy Act had to be read in such a way that the public interest override applied in cases of solicitor-client privilege.[346]
In a powerful dissent, Juriansz JA, held the right to freedom of expression in s 2(b) of the Charter did not include a positive right of access to information. His Honour held a right of that kind had been specifically rejected when the Charter was enacted and could not be read into s 2(b) under the 'living tree' doctrine of interpretation.[347]
Juriansz JA said the creation of a positive obligation to provide access to information under s 2 of the Charter would be inconsistent with the established jurisprudence, as summarised in Delisle v Canada[348] by Bastarache J:[349]

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In the Strasbourg court, freedom of information is one of the 'essential foundations' of democratic society, and 'one of the basic conditions for its progress and for the development of every man.'[385] In Canada, freedom of expression is seen to be 'essential to the functioning of ... democracy, to seeking the truth in diverse fields of inquiry, and to [the individual's] capacity for self expression and individual realization'.[386]
Those values and purposes of the human right of freedom of expression are very well accepted and apply equally to the rights as specified in s 15(2) of the Charter.
It is now necessary to consider the relationship between freedom of expression and freedom of information. On that subject, it must immediately be recognised that the right specified in s 15(2) of the Charter, like the parent right in article 19(2) of the ICCPR, does not expressly incorporate a positive obligation to provide access to information. Section 15(2) speaks of freedom of expression as a right which includes 'the freedom to seek, receive and impart information and ideas'. The question is whether these words, properly interpreted, implicitly make provision for such a positive obligation. If the obligation cannot legitimately be seen to be implicit in the language of s 15(2), it does not exist.
The analytical process for finding implications in human rights instruments is not much discussed in the international jurisprudence. According to the accepted principles of interpretation, such instruments are interpreted purposefully and generously. The approach is not originalist. Human rights instruments are seen to be 'living trees', and thus may be interpreted in an evolutionary way in response to changed social, economic and political conditions.[387] That principle would support making appropriate implications, but not overshooting or de facto legislating. I think any implications in the Charter must be consistent with the underlying values and purposes of the right being considered. Implications must not be inconsistent with that right or other rights or freedoms, or the scheme and foundational values of, the Charter. Implications must be necessary, and not merely convenient and appropriate. That differentiates the interpretative from the legislative function.
In the present case, I am concerned only with the positive right to access government-held information. The question of the possible broader nature of any positive right does not arise. In particular, this is not a case about a government obligation to collect and disseminate information which has not been requested, or to create information which it does not already hold.
In an important article on the relationship between freedom of expression and freedom of information,[388] Sir Anthony Mason expressly contemplated the making of an application in article 19(2) of the ICCPR, on which s 15(2) of the Charter is based:[389]

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I do not accept the submission that these authorities are analytically unsatisfactory and constitute a weak and aspirational jurisprudence.
I do not accept that decisions from states where there was no freedom of information legislation, such as Chile and India at the relevant time, are not authoritative. That a particular state may or may not have legislative freedom of information does not dictate the content of the human right to freedom of expression, whether that right be in legislative or constitutional form, unless the actual content of the right is the subject of valid legislative prescription in the jurisdiction concerned.
Neither is it an objection to the implication that the right in the Charter would sit alongside the right in the freedom of information legislation. That is so with any legislation on the subject of a human right, of which there is much. Again, legislation dealing with civil and criminal legal proceedings is a good example.
The Australian Constitution impliedly protects that freedom of communication between the people concerning political or government matters which enable them to exercise a free and informed choice as electors.[403] The rationale for the implication is that freedom of communication on such matters is 'an indispensable incident of that system of representative government which the Constitution creates'.[404]
The relevant provisions of the Constitution 'necessarily' protect that freedom because people could not exercise 'a free and informed choice as electors' without it.[405] The implication is limited to 'what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.'[406]
The freedom is not absolute. Legislation may limit the freedom if certain conditions are met.[407] The implied freedom is 'negative in nature'.[408] It does not 'confer personality rights on individuals'.[409]
This is an example of making valid implications in a constitutional context. While the rationale for this constitutionally implied freedom shares some ground with the rationale for freedom of expression and freedom of information, its scope is plainly narrower. However, the court was not purporting to specify the scope of the human right to freedom of expression, and did not do so. In the Charter, the Victorian legislature enacted the human right of freedom of expression, not the constitutionally implied freedom.
As we saw, Victoria Police pointed to a proposal for a positive obligation in what became article 19(2) of the ICCPR which was not included in the convention in its final form. That was the proposal of the Soviet Union for the provision of state funding and assistance.[410] As Nowak has demonstrated, the socialist approach was generally rejected.[411] But there is a significant difference between the provision of state funding and assistance for facilitating freedom of expression, on the one hand, and a positive obligation to provide access to government-held information as part of that right, on the other. As an obligation to provide such access is not to be equated with providing funding and assistance, I do not need to consider whether the Canadian Dunmore principles should be adopted here.
Academic objection has been raised to treating freedom of information as a positive constituent of freedom of expression. I can discuss these objections by reference to the views of Eric Barendt and Helen Fenwick.
Eric Barendt does not support the view that freedom of information is a positive right which forms a constituent of freedom of expression, although he admits the 'case for "a right to know" as an aspect of freedom of speech has a long and respectable ancestry, and is supported by some commentators now'.[412]
For Barendt, the major stumbling block is that freedom of speech is a freedom. Recognising a positive right would require disclosure from an unwilling speaker. Barendt includes the government in this category. Another problem is the need to establish administrative machinery to implement the right, which is a matter proper for legislative and administrative regulation. He is not convinced that freedom of information can be necessary for freedom of speech. That is true of education, which is not covered by freedom of speech.[413]
Barendt accepts the case for freedom of information is a powerful one and the link between freedom of speech and freedom of information is undeniable.[414] That does not mean the latter is covered by the former. At most, 'respect for the fundamental values of freedom of expression[415] may require government to enact freedom of information legislation', which would have to be compatible with freedom of speech.
With respect to the disclosure by public authorities of government-held information, I do not accept these objections. The government is not be equated with an unwilling speaker. The role of government is to serve the public interest. Government represents the body politic. Government speaks with that voice, and only that voice. It cannot insist on keeping information secret simply because, in its own supposed interests, it can say no to a request for access. That is not the language of modern democratic governments. It would reflect a disengagement of government from the people whose interests it exists to serve. Likewise, government officials cannot expect their contributions to the operation of the public sector to be treated as private expressions attracting unqualified free speech protection. The position is different as regards expressions made in their private capacity, and as regards the private expressions of citizens which have been recorded in government records.
That a positive right to freedom of information might involve some administrative machinery is true. But that is so of many of the other rights in a bill of rights. The right to a fair hearing in civil and criminal cases is an obvious example. The positive rights seems undeniably to be part of the human right to respect for private life, yet the same resource-based objection is not raised there. The point is not likely to be of practical importance, because freedom of information machinery is being established almost everywhere. The real issue will be whether the machinery is human rights compliant, and it mostly will be.
Barendt sees legislative freedom of information as the answer, enacted out of respect for the fundamental values of freedom of expression. While these fundamental values may be the inspiration for freedom of information legislation, they are also the separate (and prior) inspiration for the international human right of freedom of expression. Whether or not freedom of information legislation is enacted, the scope of the right of freedom of expression is a legitimate question. Further, that legislation can be drawn out of the values which inspire freedom of expression helps to show the full scope of the values which the right expresses. It would be very odd if the same values supported both the human right of freedom of expression and legislative freedom of information, yet not freedom of information as a positive constituent of freedom of expression.
Helen Fenwick also argues a right to access information is to be distinguished from a right to free speech, although she concedes the two are clearly linked.[416] She gives three reasons. First, freedom of information is justified by values which go beyond freedom of speech. These values are maintaining the quality of governmental decision making and making governments accountable. Second, information may be sought without an intention to engage in communication to others, for example, just to obtain personal information about yourself. Third, information may be sought when there is no willing speaker to disclose it. Compelling an unwilling speaker to disclose is a violation of their human rights to freedom of expression.[417]
As to the disclosure of government-held information, I must disagree with these arguments. The values behind freedom of speech (or freedom of expression) and freedom of information are intermingled. The quality of governmental decision-making and making governments accountable are purposes of freedom of expression, not just freedom of information. Democratic participation and personal, social and cultural development are values of freedom of expression which carry over into freedom of information. It is a good working assumption that most information is sought with the possibility of publication in mind. Further, seeking the information can be expressive in itself. Ideas cannot be formed, and then expressed, without information. Getting existing information from an unwilling government is a purpose of freedom of information in the context of freedom of expression, not an objection to it. The privacy and expressive rights of individuals must be given adequate protection, but that is a question of the application of a positive right to access information, not an objection to it in principle.
Focussing on its cardinal values and purposes, the right to freedom of expression in s 15(2) of the Charter is essential to democracy, the rule of law and the social and cultural development of the individual in society, as well as society collectively. This is even more so in the modern world, which is characterised by mass-communications and information technology. As freedom of expression is essential to democratic and civilised society, so freedom of information is essential to the human right of freedom of expression. Freedom of information is in the blood which runs in the veins of freedom of expression. The two operate organically as a functioning unit. In respect of government-held information, freedom of information is thus a necessary aspect of the human right of freedom of expression.
Focussing on responsible government, the human right of freedom of expression is essential for finding truth, holding government to account and maintaining confidence in public institutions (including the courts and tribunals). The proper realisation of these values and purposes requires freedom of information to be recognised as a constituent of freedom of expression.
Focussing on the individual, the great purpose of the human rights specified in the Charter, and especially the right to freedom of expression, is to protect, enhance and respect the dignity of everyone without exception, including their right to participation in parliamentary democracy, to engage in public life and to personal autonomy and self-realisation. It does fatal damage to that purpose if governments, without any need for reasonable justification or even explanation, can keep existing information from individuals who dare to seek and to inquire.
The trunk right in s 15(2) of the Charter is freedom of expression, of which the freedom to 'seek, receive and impart information and ideas' are branches. There are natural limits to the weight of meaning which these words can bear, but the right to freedom of expression at least includes the positive right to obtain government-held information. I draw that implication from the cognate values and purposes of the right and from each of the illustrative words 'seek, receive and impart'. What point is a right to seek information from government if there can be refusal without justification, or even explanation? What point is a right to receive information from government when there is no obligation to give, even on a subject of vital public interest? What point is a right to impart government-held information when the government does not even have to reply to a request for it to be obtained?
In conclusion, the right to freedom of expression in s 15(2) of the Charter implicitly imposes a positive obligation on the government to give access to government-held documents (freedom of information). The obligation I am specifying does not extend to creating documents, collecting data or disseminating information which has not been sought. The right to obtain government-held documents is not absolute and is subject to justifiable exceptions for objective, proportionate and reasonable purposes. The government has a margin of appreciation in this regard.
The scope of the right to freedom of information as part of freedom of expression in s 15(2) of the Charter at least extends to cases in which the individual seeks information on a subject engaging the public interest or in which he or she has as legitimate interest. The arguments in the present case did not enable me to identify the scope of the right in more specific terms.

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It is now necessary consider the impact of the human right of freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act on the interpretation of the public interest override in s 50(4) of the Freedom of Information Act.
As I have identified the scope of that right, it includes a positive right to access government-held information. This right is not absolute. It is subject to justifiable limitations for objective, proportionate and reasonable purposes, as specified in ss 15(3) and 7(2), and as discussed in the Siracusa principles. The government has a margin of appreciation in this regard.
The public interest override in s 50(4) allows the tribunal to order release of exempt documents if this is required by the public interest. The interpretation of s 50(4) might be affected by the human right to freedom of expression if that right, including its positive constituent, is incompatible with the public interest override provision, as properly interpreted. Under s 38(2) of the Charter, the tribunal (as a public authority) would not have to apply s 50(4) compatibly with human rights if s 50(4) could not reasonably be so applied.
As we have seen, XYZ submits the interpretation of s 50(4) must take account of the human right of freedom of expression. He submits the scope of that right extends to a positive right to access government-held documents. I have accepted that submission. But XYZ has put his main case on a different basis. He submits that freedom of information legislation which has been enacted must be interpreted consistently with the human right to freedom of expression, whether or not it incorporates the positive constituent. I have already set those submissions out in full.
I must reject XYZ's submissions in this respect. The Freedom of Information Act is legislation to facilitate access to information by creating a legally enforceable right to obtain access to documents,[418] subject to the exemptions in Part IV and the public interest override in s 50(4). It is not inconsistent with the human right to freedom of expression, or other relevant human rights. First, it preserves the capacity of individuals to seek access to information outside the statutory scheme. It expressly acknowledges the power of agencies and Ministers to give access to documents where they can properly do so or are required to do so by law.[419] In my view, it comes within the permission in s 16(2) of the Freedom of Information Act for the government to give access to documents when this is required by its obligation to act compatibly with human rights.[420] Second, the scheme of the legislation is not incompatible with human rights.
On the view I take of the public interest override in s 50(4), it does not limit the human right to freedom of information. The interpretation of s 50(4) would, according to the standard principles of interpretation, and in particular the principle of legality, be interpreted consistently with freedom of expression if this was open. Any ambiguities in the interpretation of s 50(4) would be resolved consistently with Australia's international obligations, particularly articles 19(2) and (3) of the ICCPR. Further, s 38(1) of the Charter would require the power or discretion in s 50(4) of the Freedom of Information Act to be exercised compatibly with human rights if it reasonably could be,[421] and s 50(4) does not require the contrary.
As I have already shown, freedom of information is not an absolute human right in international law terms. That is reflected in article 19(3) of the ICCPR, as well as ss 7(2) and 15(3) of the Charter. It is fully accepted that the right may be subject to limitations of the kind which are commonly called 'exemptions' in freedom of information legislation. Further, it is common for legislation and conventions giving effect to freedom of expression and freedom of information to have a public interest override provision. I refer to the provisions in Canada,[422] the United Kingdom,[423] the Convention on Access to Official Documents[424] of the Council of Europe and, in particular, article 19(3) of the ICCPR. Therefore the public interest override in s 50(4) of the Freedom of Information Act is not, in principle, incompatible with the human right of freedom of information, including its positive constituent. Indeed, the very function of a public interest override provision is to allow access to documents, which would otherwise not be disclosed, because such access is required in the public interest.
XYZ submits s 50(4) should now be interpreted such that the tribunal can order release when this is in the public interest, taking into account the principle of maximum disclosure. As I have already said, this is not the way the override is applied at the present time.
That submission does not find support in the nature of the human right to freedom of expression, including its positive constituent.
As I have already stated, s 16(2) of the Freedom of Information Act preserves the independent right of an applicant to seek, and the capacity of the government to give, access to information. The Freedom of Information Act facilitates access to information and it does not limit the independent human right of freedom of information on which individuals may rely under the Charter. Further, s 50(4) is not inconsistent with the human right to freedom of information. Section 38(1) requires s 50(4) to be applied compatibly with human rights, which it reasonably can be.
I take the proper scope of the public interest override in s 50(4) to be determined in Secretary, Department of Premier and Cabinet v Hulls,[425] Secretary, Department of Justice v Osland[426] and Secretary, Department of Justice v Osland (No 2).[427] There may be a stronger emphasis on the word 'requires' (in s 50(4)) in the latter two judgments, but that does not alter the substance of the interpretation which was explicated in Hulls and applied in those two judgments. The operation of the public interest override in s 50(4), as so interpreted, is not inconsistent with the human right of freedom of expression, including the positive right to access government-held documents. In particular, these decisions would not preclude reference to relevant human rights considerations, including those arising under freedom of expression, in the exercise of the override, as required by s 38(1) of the Charter.
I do not accept XYZ's submission that I must search for the interpretation of s 50(4) which is most compatible with human rights and give the provision that meaning. Assuming the human right concerned is one that can be limited, the compatibility of legislation with the right is worked out by identifying the scope of the right and then comparing the operation of the legislation with the right of that scope. If a margin of appreciation is applicable, as it is with freedom of expression, that is taken into account. Adopting that approach here, the Victorian public interest override is not incompatible with the human right to freedom of expression, including its positive constituent.
XYZ relies on The Criminal Lawyers Association v The Minister of Public Safety and Security.[428] I would distinguish this decision. In Victoria, the legislature did not expressly reject a positive right of access to documents when it enacted the right to freedom of expression in s 15(2) of the Charter. Further, s 16(2) of the Freedom of Information Act preserves the independent capacity of individuals to seek access to documents in pursuance of their independent right to freedom of expression under s 15(2) of the Charter, as I have identified its scope. Next, I am concerned in this case not with the lack of a public interest override provision, but with the interpretation of the applicable provision. Finally, as a public authority under the Charter, the tribunal is bound to apply the override compatibly with human rights, including freedom of expression as a I have identified its scope. The issues raised in the plurality and minority judgments in the Court of Appeal of Ontario, which are yet to be determined in the reserved judgment in the Supreme Court of Canada on appeal, do not arise here.
Although the right to freedom of expression in s 15(2) of the Charter includes a positive right to access government-held documents, and that right is independent of the right to seek access to documents in s 13 of the Freedom of Information Act, it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act. When the government properly processes a request for access to documents under the Freedom of Information Act, it will also be respecting, and acting compatibly with, the applicant's right to freedom of expression under s 15(2) of the Charter. In most cases at least, nothing more or less would be required.

[235]

In its administrative review jurisdiction, as in cases under the Freedom of Information Act, the tribunal is a public authority under the Charter and is bound to act compatibly with human rights.[429] In exercising statutory powers and discretions of the kind specified in s 50(4) of the Freedom of Information Act, the tribunal must act compatibly with human rights,[430] including the human right to freedom of expression, as I have identified its scope. In properly applying the public interest override in s 50(4) as it is currently interpreted, the tribunal will also be acting compatibly with an individual's human right to freedom of expression, including the positive right to obtain access to government-held information which is a constituent of that right.
The proper application of the public interest override requires me to identify and balance the countervailing public interest considerations, and then to consider whether the considerations in favour of disclosure are so strong as to override the considerations against disclosure, particularly the interests protected by the exemptions. The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The tribunal does not simply decide whether it is in the public interest for the documents to be released - the public interest must 'require' release in the emphatic sense in which that term is used. Nor does the tribunal simply consider the brute fact that the documents are exempt - it must consider the interests protected by the exemptions as well. The public interest considerations in favour of disclosure must extend beyond generalised statements and be reasonably particularised. Section 50(4) is to be applied after the consideration of any public interests which arise under the exemptions.
Applying these principles to the present case, I have earlier identified at some length the public interest considerations relied on by XYZ.[431] XYZ has established a number of particular public interest grounds in favour of releasing the exempt documents. The grounds extend beyond the making of generalised statements. The grounds have substance, and concern the manner in which the ESD investigation commenced and the irregularities which occurred at the start of and during the investigation. The personal and professional impact of the investigation on XYZ has been ruinous, in his view. XYZ wishes to obtain total exoneration. His interests in obtaining access to the documents closely align with a number of the established values and purposes of his human right to freedom of expression in the particular circumstances of this case, including holding ESD to account, exposing the full extent of an investigation in which at least some breaches of law and procedure occurred and obtaining full personal vindication.
However, XYZ has not established that any major irregularity occurred in the ESD investigation. The breaches of law and procedure which occurred at the commencement and during the investigation were not intentional. They do not bring the investigation into overall question. The investigation was necessary because XYZ was gambling in large amounts of money at the casino. The police thought he was structuring his financial transactions to cover his tracks and also engaging in money laundering, both of which are crimes. XYZ was exonerated, but the investigation was reasonable.
The public interest considerations against releasing the disputed documents are very powerful indeed. In the circumstances of the present case, the various exemptions protect the processes by which those responsible for investigating alleged police misconduct and corruption carry out their extremely important functions. I have identified the purposes of, and the interests protected by, the relevant exemptions already, and I will not do so again here.
In my view, the public interest considerations relied upon by XYZ are not so strong as to override the interests protected by the exemptions. What XYZ points to is not sufficient to demand or necessitate release of the documents. In human rights terms, his personal interest in obtaining access to the documents in pursuance of his right to freedom of expression must yield to the superior interests of the public in protecting the integrity of investigations into alleged police misconduct and corruption.

[236]

The Ethical Standards Department of Victoria Police investigated a senior constable of police, XYZ, for the alleged crimes of money laundering and financial structuring. The investigation revealed no wrong-doing on the part of XYZ and he was not charged. To help him clear his name completely, XYZ sought access to documents concerning the investigation under the Freedom of Information Act. This is XYZ's application for review of the refusal of Victoria Police to give him access to all of the documents which he seeks.
In the proceedings in the tribunal, Victoria Police relied on a number of exemptions, especially those related to the protection of the integrity of the investigative processes of the law and obtaining information from confidential sources. After considering the evidence and the submissions of the parties, I have upheld the exemptions with respect to all of the documents in dispute, except document 121.
XYZ relied on the public interest override in s 50(4) of the Freedom of Information Act. He also relied on the human right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act.
I have determined that the human right to freedom of expression incorporates a positive right to obtain access to government-held documents. It is not an absolute right and can be subject to objective, proportionate and reasonable limitations. The scheme of the Freedom of Information Act is not inconsistent with freedom of expression. Specifically, the public interest override in s 50(4) must be exercised consistently with this human right, because the tribunal, as a public authority under the Charter, is bound to act compatibly with human rights. But that does not call for any different manner of applying the override, because it is substantively consistent with human rights.
XYZ has established some grounds in the public interest for giving him access to the documents he seeks. In particular, he has established that some breaches of law and procedure were committed in the commencement of and during the ESD investigation. But these were not intentional and do not bring, or suggest there are reasonable grounds for bringing, the investigation into overall question.
The public interest grounds against disclosure are very strong. In particular, there is a powerful public interest in maintaining the integrity of the processes for investigating alleged police misconduct and corruption.
On balance, the public interest grounds in favour of releasing the documents do not strongly outweigh those in favour of maintaining the exemptions. In human rights terms, XYZ's personal interest in obtaining access to the disputed documents in the exercise of his right to freedom of expression must yield to the interest of the public in protecting the integrity of the investigative process of the police. I have therefore decided against exercising the public interest override in this case.
There will be orders confirming the decision of Victoria Police, except in respect of document 121, which will be released to XYZ.

At a glance

Court

Decision date

Before

Source

Judgment (541 paragraphs)

XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010)

Parties

Legislation Cited (13)

Cases Cited (20)