Freedom of Information, Freedom of Expression and the Charter

Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009) The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman.  The effect of the transfer was to place the documents beyond the Applicant’s reach as, once a document is transferred to the Ombudsman, it is immune from release: s 29A of the Ombudsman Act 1973.  The application for review was dismissed on the basis that VCAT does not have jurisdiction to review the relevant decision: s 50(2) of the FOI Act. 


His Honour emphasised the right to a fair hearing and the steps a court may take in protecting this right in unrepresented parties.

Right to a fair hearing (s 24(1) of the Charter)

Justice Bell emphasised the Tribunal’s duty to ensure a self-represented party receives a fair hearing and is provided with due assistance from the court or tribunal.  This duty arises from the Tribunal’s statutory duty to act fairly, its common law duty (citing Tomasevic v Travaglini (2007) 17 VR 100) and its

obligations under ss 24(1) and 38(1) of the Charter … to act compatibly with Mr Smeaton’s human right to a fair hearing in a civil proceeding, which directly applies to the tribunal not just, as in this case, when it is exercising administrative jurisdiction in the public law sense, but when it is exercising all of its jurisdictions. (See also Kracke v Mental Health Review Board [2009] VCAT 646, [252], [254], [332], [489]). 

His Honour took a number of steps to ensure that the right to a fair hearing was preserved.  Steps included articulating the procedure that was to be followed, the main issues involved and the relevant legal issues that needed to be addressed by the Applicant.  In addition, His Honour directed that the Applicant seek pro bono legal representation. 

Right to seek and receive information (s 15 of the Charter)

As discussed above, the application was for review of VWA’s decision under s 18 of the FOI Act to transfer a document to the Ombudsman after the Applicant had requested the document from VWA.  Once the document had been transferred, it was immune from release: s 29A of the Ombudsman Act 1973.  As the power to transfer a document is discretionary, relevant considerations, including rights protected under the Charter and the obligations of public authorities, must be taken into account.

To determine whether VWA’s decision breached the Charter, His Honour adopted the approach articulated in Kracke.  This requires consideration of questions of: (1) engagement; (2) justification; and (3) reinterpretation if necessary.  His Honour held that the Applicant’s right to freedom of expression was not engaged because the Applicant was able to ‘seek whatever information he wishes and receive whatever information he may be given.  There is no restriction imposed on Mr Smeaton’s capacity to receive information which others may wish to give him’.  The FOI Act creates a right to obtain access to information subject to, among other things, the power to transfer documents under s 18.  As the right was not engaged, justification and reinterpretation were not relevant.

The decision is available at

Phoebe Knowles is a barrister at the Victorian Bar