Right to Freedom of Expression Incorporates Positive Right to Freedom of Information

XYZ v Victoria Police [2010] VCAT 255 (16 March 2010)

In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’.  His Honour found, however, that the Freedom of Information Act 1982 (Vic) is substantively compatible with this right and that the Charter does not ‘call for any different manner of applying’ the public interest override where access to documents is refused.


XYZ was a senior constable with Victoria Police.  He was investigated by the Ethical Standards Department on suspicion of money laundering.  The investigation found no evidence of wrongdoing and he was not charged.

XYZ subsequently sought access to documents associated with the investigation under the Freedom of Information Act to ‘totally exonerate’ himself and ‘expose unlawful and improper’ aspects of the investigation.

Victoria Police gave access to some documents but not others on the grounds that they were exempt and that their disclosure would ‘undermine the integrity of the system for investigating police corruption and misconduct’.  In response, XYZ argued that the exempt documents should nevertheless be disclosed on the grounds of ‘overriding public interest’ (s 50(4) of the FOI Act).  He further submitted that s 50(4) should be liberally applied in light of the right to freedom of expression under s 15(2) of the Charter, which he submitted subsumes a positive right to freedom of information.


In a significant decision, Bell J held that the right to freedom of expression under s 15(2) of the Charter ‘incorporates a positive right to obtain access to government-held documents’.  In reaching this decision, Bell J held that:

  • Human rights should not be interpreted in a ‘narrow or legalistic fashion’, but rather in a ‘purposeful’ and ‘generous’ way by reference to the ‘cardinal values’ which the rights embody.
  • The right to freedom of expression is foundational to democracy, the rule of law, and individual, social and cultural development.
  • Freedom of information is ‘a necessary constituent of freedom of expression, for the purposes of the right to seek, receive and impact information will be frustrated if the government, without justification, can simply refuse the information sought’.
  • ‘International jurisprudence is moving strongly in the direction of a positive obligation being part of freedom of expression’ – his Honour cited the European Court of Human Rights, Canada, the UN Human Rights Committee, the Inter-American Court of Human Rights, and the Supreme Court of India in this regard.

In light of the above, Bell J concluded that:

the right to freedom of expression in s 15(2) of the Charter implicitly imposes a positive obligation on the government to give access to government-held documents (freedom of information).  The obligation I am specifying does not extend to creating documents, collecting data or disseminating information which has not been sought.  The right to obtain government-held documents is not absolute and is subject to justifiable exceptions for objective, proportionate and reasonable purposes.  The government has a margin of appreciation in this regard.

In the present case, Bell J rejected the application for disclosure of the exempt documents.  His Honour stated in this regard that s 50(4) of the FOI Act ‘is not, in principle, incompatible with the human right to freedom of information’ and that, on the facts, XYZ’s ‘personal interest in obtaining access to the documents in pursuance of his right to freedom of expression must yield to the superior interests of the public in protecting the integrity of investigations into alleged police misconduct and corruption’.


This decision was handed down one day prior to the decision of the Court of Appeal in Momcilovic (discussed above).  Notably, in the present case, Bell J rejected XYZ’s submission that, pursuant to s 32 of the Charter, the court’s task is to ‘search for the interpretation of s 50(4) which is most compatible with human rights and give the provision that meaning’.

With respect, subsequent to Momcilovic, Bell J’s conclusion on the proper construction of s 50(4) may need to be re-visited given the Court of Appeal’s unanimous view that s 32 requires the Court to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’.

The decision is available at www.austlii.edu.au/au/cases/vic/VCAT/2010/255.html.

Phil Lynch is Director of the Human Rights Law Resource Centre