ACT Tribunal considers human rights interpretation

Allatt & ACT Government Health Directorate (Administrative Review) [2012] ACAT 67 (28 September 2012) Summary

In this case, the ACT Civil and Administrative Tribunal reviewed decisions made by the ACT Health Directorate refusing applications for access to documents under the Freedom of Information Act 1989 (ACT) and granted the applicant access to the relevant information on the basis that it was not “sensitive information” and not subject to FOI Act exemptions. The Tribunal provided a noteworthy detailed consideration of the methodology of interpretation under the Human Rights Act 2004 (ACT).


The applicant sought access to documents of the Mental Health Clinical Review Committee which had reviewed the clinical management of his late wife. The Health Directorate refused to release a number of documents, relying on exemptions in the FOI Act relating to secrecy provisions in other enactments (section 38), documents concerning certain operations of agencies (section 40) and legal professional privilege (section 42). A key issue was the request for disclosure of the names of the members of the relevant Mental Health Clinical Review Committee.


The Tribunal began by considering the effect of the Human Rights Act 2004 (ACT) on the interpretation of the FOI Act and provisions of the Health Act 1993 (ACT), and the obligations of the Tribunal as a public authority under the Human Rights Act in reviewing the FOI decisions.

The Tribunal confirmed its previous decisions that the Tribunal is a public authority for the purposes of section 40 of the Human Rights Act when acting in an administrative capacity. The Tribunal found that it acts in such a capacity where it stands in the shoes of the respondent decision maker: “The Tribunal acts in an administrative capacity by, inter alia, exercising the scope of the respondent’s functions upon an application for review being filed with the Tribunal”.

As a public authority, the Tribunal noted that it must interpret the relevant legislation in accordance with section 30 of the Human Rights Act. In carrying out the interpretive exercise, the Tribunal followed the methodology adopted by Justice Penfold in Re Application for Bail by Islam (2010) 244 FLR 158. In that decision, her Honour held that section 30 should be applied at an early stage in the process of interpreting legislation, (rather than at the end) and only after an unsuccessful justification inquiry had been conducted under section 28 of the Human Rights Act.

The Tribunal confirmed at [71-72] that section 30 is not a special rule of interpretation:

It is now clear from judicial comment in a number of cases in the ACT, Victoria and more recently in the High Court which have examined s 30 of the Human Rights Act and its equivalents in other jurisdictions that, although the interpretive rule in s 30 of the Human Rights Act involves a process of statutory construction, it is not intended to create a “special” rule of interpretation. The Victorian Court of Appeal in R v Momcilovic held that the words “consistently with [its] purpose”, in s 32(1) of the Charter of Human Rights and Responsibilities ACT 2006 (Vic) (i.e. the Victorian equivalent of s 30 of the Human Rights Act) "stamped s 32(1) with a quite different character” to s 3(1) of the UK Human Rights Act and that “the inclusion of the purpose requirement made it unambiguously clear that nothing in s 32(1) justified, let alone required, an interpretation of a statutory provision which overrode the intention of the enacting Parliament.”

The Tribunal noted that this aspect of the Victorian Court of Appeal decision in R v Momcilovic (2010) 25 VR 436 was upheld by the majority of the High Court, and cited the statement of Chief Justice French that that provision:

requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms.

The Tribunal considered Justice Penfold’s methodology was still useful notwithstanding the High Court’s decision in Momcilovic. As a result, the Tribunal adopted Penfold’s methodology, which involved the following steps:

Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.

Step 2: Temporarily set aside any available meaning that is not human rights-compatible under s 30.

Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).

Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.

Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.

Step 4: Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.

Step 4A: If only one meaning can be justified, it is adopted.

Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.

Step 4C: If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.

In the Allatt case, the Tribunal was required to consider the application of section 38 of the FOI Act, which provides that:

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

In doing so, it was required to consider the interpretation of the secrecy provision in section 125 of the Health Act, which relates to “information holders” including Quality Assurance Committees such as the Mental Health Clinical Review Committee, and creates an offence where an information holder recklessly divulges protected information. Subsection (3) provides that the section does not apply to the divulging of information if the information is not “sensitive information” and is divulged under another territory law.

The Tribunal found that restrictions on the access to documents and information engage and potentially limit the right to freedom of expression under section 16(2) of the Human Rights Act, as this right includes a freedom to seek, receive and impart information of all kinds.

In discerning the possible meanings of section 125 of the Health Act for step 1 of the “Penfold methodology”, the Tribunal found an ambiguity in the definition of “health service provider”, which was relevant to the scope of “sensitive information” for the purposes of section 125. The Tribunal identified an interpretation of this term which was consistent with the objects of the Health Act would have a less restrictive effect on the right to freedom of expression, as it would not apply to information identifying a member of a Quality Assurance Committee who was not providing a health service in that role (despite being a registered health practitioner).

As the Tribunal was able to identify an interpretation of the relevant provisions which was consistent with both the Legislation Act 2001 (ACT) and the Human Rights Act, it adopted this interpretation, and was thus not required to proceed beyond step 3A of the “Penfold methodology”.


The Tribunal went on to find that the secrecy provision in section 125 of the Health Act was not enlivened in these circumstances, since the information was not “sensitive information” and disclosure would not be “reckless” as it is authorised by the FOI Act. Accordingly, it concluded that the exemption in section 38 of the FOI Act did not apply to the information sought.

The Tribunal rejected the application of the exemption in the FOI Act for certain agency documents, although it did uphold some claims of legal professional privilege in relation to other documents.

The Tribunal also determined that the names of the Mental Health Clinical Review Committee were not the subject of any relevant exemption, and released this information to the applicant under the FOI Act.


This decision provides a detailed explanation of the methodology of interpretation under the Human Rights Act in light of the uncertainty created by the High Court’s decision in Momcilovic. This decision suggests that in the ACT, the sequential steps set out by Justice Penfold in Re Islam have not been displaced by the High Court decision, and will continue to be applied in the ACT.

This decision is available online at

Gabrielle McKinnon, ACT Human Rights Commission.