Freedom of Information under the Victorian Charter
McInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009) McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked McInnes to provide them with a medical report, upon the presentation of which his licence was confirmed by VicRoads. However, the process caused McInnes to feel stressed and victimised. McInnes believed that a neighbour in his hostel had sent the letter.
VicRoads refused McInnes’ application for the letter. The reasons included that the letter was sent to VicRoads in confidence and its disclosure would likely impair VicRoads from obtaining similar information in the future: s 35(1) of the FOI Act.
In applying to the VCAT for a review of the decision, the applicant relied on the rights to privacy (s 13 of the Victorian Charter) and freedom of expression (specifically the right to seek and receive information and ideas of all kinds in s 15(2)).
Decision
On 4 November 2009 Member Proctor affirmed VicRoads’ decision.
This decision is relevant to:
- the threshold required before a right protected by the Charter is engaged;
- the effect of internal qualifications on the enjoyment of a right; and
- the interaction between existing rights-based legislation, such as the FOI Act, and the Charter.
Engagement of Charter Rights
The Tribunal found that the Charter rights to privacy and freedom of expression were not engaged.
The Tribunal applied the right to freedom of expression narrowly as not extending to creating a positive obligation (outside the FOI Act regime) on government to impart requested information: [33]. This is consistent with the approach of Bell J in Smeaton v VWA [2009] VCAT 1195 in which his Honour stated that the FOI Act does not limit a person’s right to hold or express opinions or to receive information ‘which others may wish to give’: [28].
The Tribunal also considered the right to privacy with particular emphasis on the separate meanings of ‘arbitrary’ and ‘unlawful’ interference with the right to privacy: see [22-24]. Member Proctor found that VicRoads’ interference was reasonable and not arbitrary. Further, the system enabling people to anonymously notify VicRoads with concerns about other drivers meant that VicRoads received information it would not receive if authors were required to give their name.
Internal Limitations
Both the rights to privacy and freedom of information contain internal qualifications.
In this decision, the Tribunal relied on those qualifications to conclude that the rights were not engaged. This meant that sections 7(2) and 32 did not arise.
With respect, this is an overly narrow approach to the construction and engagement of rights. Further, it is inconsistent with the approach of Bell J in the seminal case of Kracke v MHRB [2009] VCAT 664, in which his Honour stated [109-110]:
Where rights are expressed in terms that contain a specific limitation, the nature and content of the rights in their plain state are not seen to be reduced by the specific limitation. Rather, the specific limitation is seen as an indication of what might be considered in determining whether any limitations are reasonable and justified under the general limitations provision in s 7(2).
This, when identifying the scope of the right at the engagement stage, this is done broadly and purposively, even where the right contains a specific limitation. Such a limitation becomes subsumed in the overall justification which is undertaken in the next stage.
Freedom of Information and the Charter
The Tribunal found that the FOI Act (and not the Charter) expresses the Victorian government’s intention as to its obligations to release information: [32]. The FOI Act regime creates a parallel analysis: would disclosure be reasonably likely to impair VicRoads’ ability to obtain other information; and does the public interest require disclosure? As the Tribunal held that the rights were not engaged, the Tribunal considered these questions rather than considering whether any limitation was justified and proportionate.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2342.html.
Phoebe Knowles is a barrister at the Victorian Bar