Appeal applications consider the application of s 288 of the Youth Justice Act 1992 in the context of schedule 3, s 12(1) of the Right to Information Act 2009
The appeals of Department of Youth Justice v Office of the Information Commissioner & Ors and Department of Youth Justice v Office of the Information Commissioner & Anor  QCATA 143 were heard together and considered the application of s 288 of the Youth Justice Act 1992 (YJ Act) in the context of schedule 3, s 12(1) of the Right to Information Act 2009 (RTI Act).
The information in issue comprised CCTV footage of children in detention and parts of an inspection report of a detention centre. The Department of Justice and Attorney-General and later the Department of Child Safety, Youth and Women (the Department) submitted that the information in issue was exempt information under schedule 3, s 12(1) of the RTI Act because its disclosure was prohibited by s 288 of the YJ Act. The Department also submitted, in the alternative, that disclosure of the information in issue would, on balance, be contrary to the public interest.
On external review, the RTI Commissioner disagreed with the Department’s view and determined that the correct test for determining whether information was exempt was whether the information “will identify a child, or will likely lead to the identification of a child, etc, to a person who has no special knowledge, ie, to a person who does not already know the child’s identity and their status under the YJ Act…” In applying that construction, the RTI Commissioner determined that disclosure of the information in issue was not prohibited under s 288 of the YJ Act and it was therefore not exempt information under schedule 3, s 12(1) of the RTI Act. The RTI Commissioner also considered the public interest balancing test but ultimately concluded that there were no grounds upon which access to the information in issue could be refused under the RTI Act.
The Department appealed each decision on the basis that the construction of s 288 of the YJ Act adopted by the RTI Commissioner added to the words of the statute the element of a person having no special knowledge of the child and their status under the YJ Act. In adopting that construction of the provisions, the RTI Commissioner made an error of law. The Honourable Justice Peter Lyons QC agreed and allowed each appeal, finding that s 288 of the YJ Act applies to confidential information of a child without further restriction, and the approach taken by the RTI Commissioner in each matter incorrectly modified the effect of the language, which then led to a wrong conclusion about the effect of that provision.
Crown Law assisted the Department in making submissions to the RTI Commissioner during the course of the external review and then acted for the Department, and later the Department of Youth Justice in each appeal.
Published: 15 November 2019
Author: Principal Lawyer, Esther Fletcher