CITATION:	Darlington v Office Of The Information Commissioner & Queensland Police Service [2015] QCATA 167	

PARTIES:	Greg Darlington
(First Appellant)
Joan Darlington
(Second Appellant)	
	v	
	Office Of The Information Commissioner
(First Respondent)
Queensland Police Service
(Second Respondent)	

APPLICATION NUMBER:	APL230-14	

MATTER TYPE:	Appeal	

HEARING DATE:	25 August 2015	

HEARD AT:	Brisbane	

DECISION OF:	Justice Carmody	

DELIVERED ON:	3 December 2015	

DELIVERED AT:	Brisbane 	

ORDERS MADE:	THE APPEAL TRIBUNAL ORDERS THAT:
1.	Appeal is dismissed.	
CATCHWORDS:	APPEAL – RIGHT TO INFORMATION – EXTERNAL REVIEW – where the appellants filed an access application in respect of certain documents under the possession or control of the second respondent – where the second respondent refused to release certain documents the subject of the access application – where the non-release resulted from the application of an exemption under the Right to Information Act 2008 (Qld) relating to documents used in an investigation by certain prescribed crime bodies – where the appellants sought to rely on an exception to the exemption relating to documents used in a finalised investigation which was “about” the appellants – where the appellants were the complainants giving rise to the relevant investigation within which the relevant documents in issue were produced – where the appellants filed an appeal against the decision of the first respondent on external review to affirm the decision of the second respondent not to release the relevant documents during internal review – where the Appeal Tribunal only possesses jurisdiction to hear appeals on questions of law - whether the appellants have established justiciable questions of law.

Acts Interpretation Act 1954 (Qld), s 22	
Crime and Corruption Act 2001 (Qld), ss 400, 401
Police Service Administration Act 1990 (Qld), s 2.1.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 28, 61
Right to Information Act 2009 (Qld), s 14, 16, 18, 23, 24, 30, 44, 47, 119

Allesch v Maunz (2000) 203 CLR 172
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1945] 2 All ER 680 
Attorney-General v Vernazza [1960] AC 965
Cameron and Queensland Police Service [2012] QICmr 41
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
Dickinson and Queensland Police Service [2014] QICmr 30
G8KPL2 and Department of Health [2011] QICmr 2
McKay and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2010)
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Springborg and the Crime and Misconduct Commission; RZ (Third Party), BX (Fourth Party), Director-General of Department of Justice and Attorney-General (Fifth Party) (2007) 7 QAR 77
T5Q2EE and Queensland Police Service [2012] QICmr 40
Together Queensland, Industrial Union of Employees and Department of Transport and Main Roads [2013] QICmr 2	

APPEARANCES and REPRESENTATION (if any):

APPELLANTS:	G Darlington and J Darlington for the appellants
FIRST RESPONDENT:	Did not appear
SECOND RESPONDENT:	C Smith for the second respondent

REASONS FOR DECISION
[1]	The applicants are clearly decent well intentioned, law abiding members of the community who have come to QCAT looking for redress of what they see as a grave injustice.
[2]	They are appealing the decision of the Office of the Information Commissioner (the “first respondent”) exercising its external review jurisdiction on 11 April 2014 to refuse them access to the disputed documents held by the Queensland Police Service (the “second respondent”) fails for the reasons that follow.
[3]	Their expectation is that the Appeals Tribunal intervenes in disputes between the State and the government at its discretion to resolve legitimate grievances by doing what is right where the strictly legal approach has a perceived adverse effect on individual rights and interests. That is, of course, misguided and destined for disappointment.
[4]	As an institution the Queensland Civil and Administrative Tribunal (QCAT) sits outside the regular court system and judicial hierarchy.
[5]	It is sometimes described as the “people’s court”.  This tag, although accurate, tends to create confusion and misconceptions about its decision making procedures.
[6]	The statutory direction to deal with matters in a way that is accessible, fair, just, economical, informal and quick does not mean that the Tribunal is at liberty to make substandard decisions based on extraneous or irrelevant considerations or unprincipled notions of ‘palm tree’ justice.  On the contrary, the Tribunal, in both its original and appellate jurisdictions, is explicitly obliged to ensure that like cases are treated alike and to promote and enhance the quality and consistency of decisions for the benefit of the parties and the public good overall.
[7]	There are fundamental procedural rules that cannot be dispensed with or overridden solely for the sake of informality, speed or economy.  These include the duty to act justly according to the law and substantial merits of the case.  The Tribunal is also bound by the conventional methods used for ascertaining the meaning of statutes, and legally giving that meaning practical expression.
[8]	The democratic system of government prescribed by the Constitution of the Commonwealth of Australia and its Queensland counterpart depends on the faithful adherence to common law doctrines as they have evolved over the centuries and been modified or adjusted by legislative intervention to reflect changing social conditions and developments in legal policy.  Otherwise the separation of powers would be distorted with power unduly concentrated within the judicial branch unguarded by other institutional checks and balances.
[9]	The close resemblance between the Tribunal’s so called alternative approach to resolving disputes and that historically taken by the judges in traditional adversarial court proceedings takes many litigants, especially those who are self-representing, by surprise.  The Tribunal’s ability to enquire into and inform itself on any relevant matter in line with the rules of procedural fairness but not necessarily by strictly applying the customary rules of evidence as well as its power to relieve from or waive compliance with procedural requirements is sometimes construed as entirely replacing all rules with ad hoc discretions.  But that is not so.
[10]	While QCAT is intended to take a more pragmatic and flexible approach to the exercise of its functions it is not at liberty to act on a whim rather than reason or ignore the guidance of slow cooked legal doctrines with ad hoc idiosyncratic values and views.  Discretionary judgments are not wholly unstructured.  They are informed and influenced by stated purposes or government policies as well as implied or identified criteria and considerations.  Ignoring relevant matters and acting on irrelevant ones vitiates discretionary power or judgment as a matter of law.
[11]	In truth a decision or action cannot be just or fairly reached on the merits on the basis of all relevant information available unless the proper law is applied in a consistent and predictable way on a case by case basis.  Good decisions depend on good procedures and principles.  What makes this process of decision legitimate is its tendency to produce better overall decisions.  It is justified because it is more likely than other imperfect alternatives to get the right answer most of the time but of course, because of human fallibility, not always.
[12]	Another characteristic of decision making is the susceptibility of the same body of evidence to different even opposite, but equally reasonable, explanations and interpretations with neither being demonstrably right nor manifestly wrong.
[13]	This is because in a human system which by definition is prone to error perfection is unobtainable and disparity inevitable.  The controlling test is reasonableness within the limits of jurisdiction or power.
[14]	Competing considerations pull in different directions.  Choices can depend on fine distinctions and diverse beliefs.  Often there is no broad consensus about “what is right” or “wrong”.  Generally it will be in the eye of the beholder.
[15]	Tribunal proceedings are designed to operate in a way that achieves the ‘correct or preferable’ decision or outcome.  Importantly, an Appeal Tribunal cannot set aside or amend any law it considers unfair or unjust.  Nor can it change a law it does not agree with or that does not seem to be morally right.
[16]	In truth this Tribunal has a narrowly confined jurisdiction to decide appeals on questions of law from external reviews under the Right to Information Act 2009 (Queensland) (the RTI Act).  Despite a lack of conceptual clarity or consensus about the differences between questions of law and fact the distinction has legal significance and implications for litigants in external review matters.  Regrettably (and while it may be of cold comfort to the appellants) the form and scope of the redress they seek is beyond its power to give.
CONTEXT
[17]	In the interests of preserving the reputational interests of the appellants and the second respondent, and observing the limited jurisdiction of the Appeal Tribunal, it is inappropriate and unnecessary to comprehensively recount the factual matrix relating to this appeal.  Nevertheless, it is desirable to contextualise certain aspects of the appeal.  
[18]	The appellants made certain allegations of improper conduct or disciplinary breaches involving several police officers.  Some of the allegations could not be substantiated by the evidence on subsequent investigation.  The Appeal Tribunal notes that this does not mean the allegations were false.
[19]	The appellants filed an access application with the second respondent for access to certain information under its control.   The information comprised of reports, correspondence and statements relating to the investigation.   
[20]	The second respondent granted access to certain information the subject of the access application, but refused access to the remaining information on the basis that it was exempt information.  
[21]	The appellants filed an application for internal review of the decision of the second respondent refusing access to the exempt information.  The second respondent conducted the review and affirmed the original decision.
[22]	The appellants filed an application for external review with the first respondent against the decision of the second respondent on internal review affirming the decision to refuse access to the information.  The first respondent affirmed the decision on the basis that the relevant information constitutes exempt information.
[23]	The appellants appealed against the decision of the first respondent on external review to refuse access to the requested information.  This appeal forms the substance of these proceedings.
[24]	In accordance with established practice, the first respondent did not file substantive submissions controverting the appeal or enter an appearance at the Appeal Tribunal hearing on 25 August 2015.
[25]	However, the second respondent resists the appeal on the ground that the first respondent’s reasons for decision disclose no discernible or material legal error warranting appellate intervention.
[26]	It contends that the information to which the appellants were granted access was also exempt information.  It is not necessary for the Appeal Tribunal to decide this question to determine the appeal.  However, the Appeal Tribunal observes that the RTI Act encourages an agency or public authority to disclose information notwithstanding the existence of a relevant exemption.  
LEGISLATIVE FRAMEWORK
[27]	The right to information under the control of the government is not a right recognised at common law.  It is a creature of statute; therefore the scope and exclusions of the right are defined by the RTI Act and related statutes.
[28]	A person possesses a right to be given access to documents of an agency or a minister.  “Agency” is defined to include a department or public authority.  It is well established that the second respondent is a public authority under the RTI Act.
[29]	A person may file an access application, which must be dealt with by the agency’s principal officer or delegated official.  The access application must generally be resolved within 25 business days, although a longer period is provided if certain circumstances in s 18(2) of the Act apply.  
[30]	The RTI Act provides for a “pro-disclosure” bias, meaning that the agency or Minister should give access to documents the subject of an access application unless giving access would, on balance, be contrary to the public interest.  Access to a document or part of a document may be refused:
1.	to the extent the document comprises of exempt information;
2.	to the extent the document comprises of information the disclosure of which would be contrary to the public interest;
3.	to the extent to which the document comprises of a child’s personal information, the disclosure of which is contrary to the child’s best interests;
4.	to the extent to which the document comprises of an applicant’s relevant healthcare information, the disclosure of which might be prejudicial to their physical or mental health;
5.	to the extent to which a document is non-existent or unlocatable;
6.	to the extent that the document is accessible by other means.
[31]	Access to documents or information may also be refused if the documents, information or entities are not subject to the RTI Act.
[32]	The abovementioned grounds are interpreted narrowly, and an agency or Minister may elect to give access to a document or information even if a legitimate ground for refusal of access applies.
[33]	In the circumstances of the present appeal, the non-disclosure criterion invoked by the second respondent on internal review and the first respondent on external review is the “exempt information” criterion.
[34]	As an appeal under the RTI Act to the Appeal Tribunal is conducted by way of rehearing, it is appropriate to consider the current law at the date of handing down judgment in the rehearing.  The relevant exemption criterion provides as follows:
(4) information is exempt information if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body.

…

(9) in this section– 
…
Prescribed crime body means – 
(a) the Crime and Corruption Commission.
…
Prescribed functions means - 
(a) in relation to the Crime and Corruption Commission – the crime function, the intelligence function and the corruption function…
…
Corruption function see the Crime and Corruption Act 2001, section 33.

[35]	The “corruption function” prescribed under s 33 of the Crime and Corruption Act 2001 (Qld) provides that:
The commission has the function (the corruption function) to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34.
[36]	A relevant exception to the section 10(4) exemption is Schedule 3 Section 10(6), which provides that:
However, information is not exempt information under subsection (4) and (5) in relation to a particular applicant if – 
(a) it consists of information about the applicant; and
(b) the investigation has been finalised. (emphasis added)
[37]	Prior to the Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld), the abovementioned provisions were in a substantially similar form, except with amended language as a result the reorganisation of the Crime and Misconduct Commission.
[38]	Accordingly, any reference in the RTI Act to the Crime and Corruption Act 2001 (Qld) or its institutions and functions should be interpreted as referring to the equivalent under the Crime and Misconduct Act 2001 (Qld). 
[39]	Therefore, to avoid unnecessary complexity throughout this judgment, the Appeal Tribunal will refer to the relevant provisions under the RTI Act as though they were a reference to the Crime and Misconduct Act 2001 (Qld) and its associated institutions and functions.
GROUNDS OF APPEAL
[40]	The appellants were not legally represented in the appeal proceedings.  For this reason, the grounds of appeal were not felicitously expressed.  However, the appellants appear to have enumerated the following grounds of appeal in their joint submissions filed with the Appeal Tribunal:
1.	the RTI Act was applied unfairly, unjustly or incorrectly to their access application; and
2.	the RTI Act is not a “fair and just” law, and therefore should be amended.
[41]	The appellants have also raised the question of the reasoning behind the second respondent’s refusal to release information. In this respect, I would note that it is not appropriate for the Appeal Tribunal to speculate regarding the rationale for the second respondent’s refusal to provide access.  Even if such conjecture were appropriate, the Appeal Tribunal would not be in a position to make such a comment on the available evidence. 
[42]	The first ground of appeal of the applicants in their written submissions is ambiguous, but was further explicated during oral submissions.
[43]	The second ground of appeal invites the Appeal Tribunal to consider the policy considerations underpinning exemptions provided in the RTI Act.  It also ostensibly requests relief in the form of the invalidation or amendment of the RTI Act.  
FIRST GROUND OF APPEAL: UNFAIR, UNJUST OR INCORRECT APPLICATION OF THE RTI ACT
[44]	The first ground of appeal identified by the appellants in their written submissions is intractably ambiguous and fails to identify any specific error in the reasoning and process adopted by the second respondent.  However, in oral argument, the appellants identified three specific errors:
1.	the first respondent erred by incorrectly interpreting the word “about” under s 10(6)(a) of Schedule 3 of the RTI Act;
2.	the first respondent erred by incorrectly finding that the relevant information the subject of the access application was not “about” the appellants; or 
3.	the first respondent erred by failing to consider relevant considerations.  
[45]	The Appeal Tribunal will consider each specific error nominated by the appellants in turn.
Incorrectly interpreting the word “about” under s 10(6)(a) of Schedule 3 of the RTI Act
[46]	The appellants submit that the first respondent erred by incorrectly interpreting the word “about” in s 10(6)(a) of Schedule 3 of the RTI Act. The second respondent submits the first respondent adopted the correct interpretation of “about” in accordance with established precedent.
[47]	Both parties appear to have assumed that the Appeal Tribunal possesses the requisite authority to review the interpretation of the word “about” in s 10(6)(a) of Schedule 3 of the RTI Act.  Somewhat surprisingly, as it turns out, this assumption is simultaneously correct and incorrect.
[48]	A person may only appeal on a question of law from a decision of the Information Commissioner on external review. The meaning of a “question of law”, as distinct from a “question of fact”, has not been fully defined by any superior court of record in Australia.  Although the difference often appears illusory or imprecise, the delineation between questions of law, questions of fact, and mixed questions of law and fact is critical to the conceptual substructure of the common law.  This categorial device is often used by legislators to limit rights of appeal and judicial review.  
[49]	The nature of an asserted error in the interpretation of the meaning of a term in a statute varies depending on the nature of the word.  If the term is a technical one, its meaning is a question of law.  The meaning of non-technical words, by contrast, is a mixed question of law and fact.  
[50]	Differentiating between a technical and non-technical term is often a treacherous exercise.  Although the status of certain terms is clear, there are cases on the margins of the concepts where reasonable minds might diverge.  Nevertheless, the hallmarks of a non-technical term include:
1.	the statute does not prescribe a definition for the word;
2.	the term is not one to which the law commonly ascribes special meaning or significance (such as the term “rehearing”); 
3.	the statutory context does not appear to warrant the substitution of a broader, narrower or materially different meaning from that of the relevant term’s natural and ordinary meaning; and
4.	the term possesses a meaning which is commonly understood by persons without special legal knowledge, training or skills.  
[51]	The question of whether a term within a statute possesses a technical or non-technical meaning is an established question of law.
[52]	The word “about” is a commonly used and well understood by those without special legal knowledge, training or skills.  The statute does not prescribe the definition of the word, nor is the term one to which the law commonly ascribes special meaning or significance.  There is nothing in the statutory context suggesting that a narrower, broader or materially different meaning should be adopted relative to its natural and ordinary meaning.  In such circumstances, the Appeal Tribunal finds as a matter of law that the word “about” used in s 10(6)(4)(a) of Schedule 3 of the RTI Act is a non-technical term defined according to its natural and ordinary meaning.
[53]	None of the parties appear to have challenged the attribution of a common sense meaning to the preposition “about”.  The disputed issue in this appeal is whether the first respondent ascribed the correct meaning to the term.
[54]	Accepting that “about” is used in its common sense, the natural and ordinary meaning of the term is a question of fact. This is because the natural and ordinary meaning of a word is the manner within which it is commonly used within the community, which is an empirical rather than legal question.  However, whether the decision-maker has correctly applied the principles of statutory interpretation is a question of law.
[55]	In this respect, the Appeal Tribunal distinguishes between two situations.  Firstly, where the interpretation of a non-technical term by a decision-maker is patently inconsistent or extrinsic to the natural meaning of the word, the decision-maker commits an error of law. Secondly, where the interpretation of a non-technical term is defective but falls within the natural range of meaning for the word, it is an error of fact.
[56]	The appellants, at least arguably, have challenged the interpretation of “about” adopted by the first respondent.  The first respondent, in reliance on G8KPL2 and other authorities, concluded that a narrow interpretation should be preferred.  Such an interpretation appears to construe the preposition “about” as meaning the subject of, or at least substantially connected with, the allegations or investigation.  As the appellants were not the subject of, or substantially connected with, the allegations or investigation, but were merely the complainants, the excluded material the subject of the access application was not “about” them.
[57]	The Oxford English Dictionary defines “about” to mean “concerning, regarding, with regard to, in reference to; in the matter of”. In this respect, the preposition possesses a different grammatical function and meaning depending on the relevant context.  The concept denoted by “about” expresses a degree of connection or relation between an object and subject.  As a graduated or continuum concept, the degree of connection required to satisfy that an object is “about” a subject will vary depending on the purpose and function of the relevant connection or relation, and the context within which the connection or relation is considered.
[58]	The narrow meaning preferred by the first respondent is situated within its natural range of meaning.  Therefore, any error in describing “about” as a concept, if such an error exists, would be an error of fact and beyond the jurisdiction of the Appeal Tribunal.  Accordingly, the appellant cannot succeed on this ground.
Incorrectly Finding that the Relevant Information is Not “About” the Appellants
[59]	The appellants submit that the first respondent erred in concluding that the relevant information is not “about” the appellants, even on the interpretation preferred by the first respondent.  
[60]	This raises the question of whether the evidence before the Appeal Tribunal reasonably admits of different conclusions regarding whether the information falls within the scope of the meaning of the word “about”. If the evidence admits of only one reasonable conclusion, any divergence from that conclusion would be an error of law.  However, if the evidence reasonably admits of multiple different conclusions, then the question as to which is the correct conclusion is a question of fact. 
[61]	The material before the Appeal Tribunal, at best, reasonably admits of different conclusions regarding whether the information falls within the scope of the meaning of the preposition “about”.  Therefore, any error in the conclusion reached by the first respondent is an error of fact and beyond the scope of the jurisdiction of the Appeal Tribunal.  Accordingly, the appellant cannot succeed on this ground.
Failure of the First Respondent to Consider a Relevant Consideration
[62]	The appellants submit that the first respondent erred by failing to take into account relevant considerations, namely a letter from Superintendent L Stiles to the appellants dated 24 July 2012 (identified as Folios 1 – 3 annexed to the submissions of the appellant) and the complaint of the appellants against disciplinary breaches of certain police officers dated 9 April 2010 (identified as Folios 5 – 10 to the submissions of the appellant).
[63]	The function of the first respondent is to consider the documents the subject of the external review, and ascertain whether they should be released in accordance with the RTI Act.  The stated documents would not have been sufficient to render the material the subject of the external review “about” the appellants.  Accordingly, the appellant cannot succeed on this ground.
SECOND GROUND OF APPEAL: “FAIRNESS” OR “JUSTNESS” OF THE ACT
[64]	The appellants have posited the following questions to the Appeal Tribunal:
A.	is this [the RTI Act] a fair and just Law (sic)?
B.	was it [the RTI Act] applied fairly and justly in our case?
[65]	Assuming a negative response to the first question, the appellants have requested relief in the form of setting aside or varying the RTI Act.
[66]	The Appeal Tribunal does not possess the requisite jurisdiction to invalidate or amend legislation.  The separation of powers is well established: the Legislature makes the law, the Executive executes the law, and the Judiciary interprets and applies the law. The Appeal Tribunal, as a quasi-judicial entity, cannot make, invalidate or amend the RTI Act on the basis of idiosyncratic perceptions of “fairness” or “justice”. If the Appeal Tribunal were to arrogate such functions to itself, it would risk dislocating the carefully constructed balance of powers and safeguards prescribed, or implied, by the Australian Constitution and Queensland Constitution.  
[67]	The Appeal Tribunal notes that the appellants do not appear to have suggested that the RTI Act is extrinsic to the scope, or in violation, of the Queensland Legislative Assembly’s law-making powers.  Therefore, the Appeal Tribunal lacks the jurisdiction to grant the requested relief.
[68]	To the extent that the Appeal Tribunal has been invited to make observations on the policy considerations underpinning the balance that has been struck between government transparency and accountability, and the protection of investigations administered by prescribed law enforcement agencies, in ss 10(4) and (6) of Schedule 3 of the RTI Act, such commentary would be inappropriate. 
[69]	The Legislative Assembly is the organ of government possessed of the required resources, skills, knowledge and capabilities to properly analyse, evaluate, and resolve competing public policy considerations relating to transparency, accountability, law enforcement and domestic security.  Furthermore, the Legislative Assembly, unlike the Judiciary, is held to account to the constituency of Queensland at regular general elections.  In such circumstances, absent manifest unreasonable or perversion, it would be inappropriate for the Appeal Tribunal to intrude into that domain.   
[70]	To the extent that the second limb of the ground of appeal relates to the application of the relevant substantive law, it has already been resolved in this decision.  If, however, it impliedly raises issues relating to a denial of procedural fairness and natural justice, the precise nature of the relevant deviation has not been clearly and precisely articulated.  In any event, having considered all of the material before the Appeal Tribunal, there appears to be nothing suggesting that the appellants were denied procedural fairness throughout the review of their access application.  
[71]	Accordingly, the appeal should not be allowed on this ground.
FINDINGS
[72]	The appellants have failed to establish that the first respondent committed any relevant legal error in its decision on external review. 
[73]	To the extent the appellants have raised grounds of appeal relating to questions of fact, they are outside of the scope of the jurisdiction of the Appeal Tribunal.  Similarly, the invalidation or amendment of regular legislation propounded by the Legislative Assembly is not within the Appeal Tribunal’s jurisdiction.   
[74]	The remedy sought by the appellants cannot be found within the domain of the courts of law or administrative law system, but lies with the Parliament.  The Appeal Tribunal does not, however, voice any view or opinion on the desirability or appropriateness of the relevant exemptions under the RTI Act.  Nor should the Appeal Tribunal be taken to be encouraging the appellants to agitate for the amendment of the law.  Rather, it is merely acknowledging the limits on the scope of its authority and where the answer lies.
[75]	As the appellants have failed to establish any legal error in the decision or procedure adopted by the first respondent on external review, the appeal must be dismissed.
ORDER
[76]	The appeal is dismissed.