RTI decisions concerning Justice Carmody
On 2 March 2018, the QCAT Appeal Tribunal published its decisions in a series of appeals from decisions of the Information Commissioner on applications for access to documents made under the Right to Information Act 2009 (RTI Act) concerning Justice Carmody when he was Chief Justice. The citation for the decision which will be considered in this update is  QCATA 15.
There were two separate rounds of appeals for which decisions were published by the Appeal Tribunal. This update will focus on the first round of appeals, which concerned applications for access to documents made to the Department of Justice and Attorney-General (DJAG). DJAG had decided that the RTI Act did not apply to the documents in issue because they were documents which related to the 'judicial functions’ of the Supreme Court or judges of that Court, (RTI Act, schedule 2, part 2, item 1) or alternatively that disclosure of the documents would, on balance, not be in the public interest.
On external review, the Information Commissioner decided that the RTI Act did apply to the documents in issue and that documents held or prepared by Justices of the Supreme Court were 'documents of an agency' (DJAG) for the purposes of the RTI Act. The Information Commissioner also held that the public interest considerations in the documents were such that the balance of the public interest favoured disclosure of the documents in issue.
Both Justice Carmody and DJAG appealed these decisions in the first round of appeals to the QCAT Appeal Tribunal, with DJAG represented by Crown Law. The documents in issue were records of communication between Justice Carmody when he was Chief Justice and other Justices. The documents concerned information such as listing of matters in the Supreme Court and communications about those matters between the judges.
The appeals were heard by Justice Hoeben, Chief Judge at Common Law of the New South Wales Supreme Court, appointed as a presidential member of QCAT, to avoid any suggestion of bias if a Queensland judge had heard the appeals.
The decisions are lengthy and complex, but in summary, Justice Hoeben held that the RTI Act did not apply to the documents in issue, because they were documents which related to the judicial functions of a court or judicial officer within schedule 2, part 2 of the RTI Act.
Justice Hoeben found that the purpose of the 'judicial functions exception' was to recognise the independence of the judiciary from the executive branch of government. He found that the meaning of 'judicial functions' was broader than the term 'judicial power' as that term is understood in jurisprudence under Chapter III of the Australian Constitution. His Honour found that 'judicial functions' can include 'judicial administration' and in cases such as Fingleton v The Queen (2005) 227 CLR 166, the High Court had recognised judicial matters such as allocation of judicial officers and courtrooms to the work of the court, as requiring independence of the judiciary from the executive. His Honour held that one test which would assist in establishing the meaning of 'judicial functions' is 'that which only a judge may do', accepting a submission made by Crown Law on behalf of DJAG to that effect.
The effect of the finding was that the RTI Act did not apply to the documents in issue and therefore the documents did not have to be released.
Further, Justice Hoeben held that the Information Commissioner had made a number of legal errors in the application of the public interest balancing test in the RTI Act that would have applied, if the documents were not excluded from the RTI Act by the 'judicial functions' exception.
Justice Hoeben was prepared to find that a correct understanding of the relevant public interest factors meant that the balance of the public interest lay against release of the documents for a number of reasons, including the importance of the independence of the judiciary, and the confidential nature of the communications.
This does not mean that copies of documents which have been filed in the courts, and a copy which are retained on departmental files, are documents to which the RTI Act does not apply. The RTI Act does apply to copies of court documents held on departmental files, because there is no judicial function being performed in relation to those documents as located on government files.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 1 June 2018
Author: Gerard Sammon