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International Law

: Open and Shut

FOI scope question resolved after 13 years

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Years after Freedom of Information commenced around the country, questions still crop up about what bodies are or are not covered by legislation. The latest, a decision by Justice Cavanough of the Supreme Court of Victoria in Attorney - General for the State Of Victoria v Kay [2009] VSC 337 that the Victims of Crime Assistance Tribunal was not an agency for the purposes of the Victorian Freedom of Information Act, comes 13 years after VOCAT was established. No surprise to the Department or the Tribunal apparently. Rights to access to non confidential documents in any event are contained in the Victims of Crime Assistance Act. The relevant paragraph on the FOI Act:

30 VOCAT is established under s 19 of the Victims of Crime Assistance Act 1996. It consists of the Chief Magistrate and all other persons who hold the office of magistrate or acting magistrate. Rights of access under the FOI Act extend only to (non-exempt) documents of an ?agency? (as defined) and (non-exempt) official documents of a Minister. VOCAT?s documents are obviously not the documents of a Minister. Nor, in my opinion, is VOCAT an ?agency?. That term is defined (by s 5 of the FOI Act) to mean ?a department, council or a prescribed authority?. VOCAT is plainly not a department (as defined) or a council (as defined). The definition of ?prescribed authority? comprises four categories identified in paragraphs (a), (b), (c) and (d) of the definition. VOCAT cannot fall within (a) because it is not a ?body corporate? within the meaning of that paragraph. It cannot fall within (b) because it is not declared by the regulations to be a prescribed authority. It cannot fall within (d) because none of its members, as such, holds an appointment relevantly declared by regulations made pursuant to (d). Paragraph (c) covers ?the person holding, or performing the duties of, an office established by an Act? but it is expressed to operate ?subject to subsection (3)?. The Chief Magistrate and each magistrate and acting magistrate might be said to be holding an office established by an Act (the Victims of Crime Assistance Act 1996). However, in my view, they are taken outside the definition of ?prescribed authority?, and therefore outside the FOI Act, by s 5(3)(c) of the FOI Act, which provides that a person shall not be taken to be a prescribed authority by virtue of his holding, or performing the duties of, ?an office or member of a body?. VOCAT is, in my opinion, clearly a ?body? within the meaning of s 5(3)(c) and the Chief Magistrate and each magistrate and acting magistrate is clearly a member of that body. Similarly, the Adult Parole Board and each of its members have been held to be outside the FOI Act, and so has the County Court and each Judge of the County Court."

Full post as published by Open and Shut on August 17, 2009 (boomark / email).