Section 29B - Documents of Court Services Victoria
Extract of legislation
| 29B | Documents of Court Services Victoria |
| A document is an exempt document if it is a document of Court Services Victoria that relates to the exercise of a judicial or quasi-judicial function of a court or VCAT. |
Section 29B exempts certain documents of Court Services Victoria (CSV). For it to apply, the agency or Minister must be satisfied the document:
- is a document of CSV; and
- relates to the exercise of a judicial or quasi-judicial function of a Victorian court or the Victorian Civil and Administrative Tribunal (VCAT).
The exemption will not apply to documents that do not relate to judicial or quasi-judicial functions, such as purely administrative functions.
Section 29B must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information.
The decision to exempt a document under section 29B is a discretionary power. This means an agency or Minister can choose to provide access to information that would otherwise be exempt under section 29B, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.
For more information, see section 16 – Access to documents apart from Act.
Section 29B applies to documents of CSV.
CSV provides, or arranges for the provision of, the administrative services and facilities necessary to support the performance of the judicial, quasi-judicial and administrative functions of Victorian courts and tribunals (including VCAT).
A document may still be a document of CSV, even if it has been provided to another agency.
Example
‘DN3’ and Department of Justice and Community Safety [2021] VICmr 247
Background
The applicant requested access to their Community Correctional Services (CCS) file from the Department.
The CCS file contained a report commissioned by CSV on behalf of the County Court, for the purpose of assessing and determining the applicant’s criminal sentencing.
A copy of the report was subsequently provided to the Department.
Issue
Was the report a document of CSV under section 29B?
Decision
Yes, the Public Access Deputy Commissioner was satisfied the report was a document of CSV.
The fact the report was subsequently provided to the Department did not change the inherent status of the document as a ‘document of CSV’.
The concepts of ‘judicial functions’ and ‘quasi-judicial functions’ are not defined in the Act.
However, the High Court of Australia’s interpretation in Kline5 of sections 5 and 6 of the Freedom of Information Act 1982 (Cth) (Commonwealth FOI Act) helps to explain what these terms mean:6
- judicial functions are the substantive powers or functions of a court as well as the matters preparatory to the exercise of such powers and functions; and
- quasi-judicial functions are the substantive powers or functions of a tribunal as well as the matters preparatory to the exercise of such powers or functions.7
The administrative functions of a court or tribunal are not judicial or quasi-judicial functions. ‘Administrative function’ means the apparatus supporting the exercise of judicial or quasi-judicial functions, such as the management and administration of registry and office resources, logistical support, infrastructure, physical necessities, travel and accommodation or the platform that enables judicial and quasi-judicial functions to occur.8
This means that a document of CSV that relates to the:
- exercise of, or relates to a matter preparatory to, the exercise of a substantive power or function of a Victorian court or VCAT will be exempt under section 29B;
- administrative functions of a Victorian court or VCAT will not be exempt under section 29B.
Example
EO7 and Department of Justice and Community Safety [2022] VICmr 161 (14 June 2022)
The applicant requested access to Magistrates’ Court documents that the Court requested as part of its function in assessing and deciding the applicant’s criminal sentencing.
The issue was whether the documents related to the exercise of judicial functions of the Magistrates Court.
The Public Access Deputy Commissioner was satisfied the documents related to the exercise of judicial functions of the Magistrates Court because the documents related to a substantive function of the court: to assess and determine the applicant’s criminal sentencing. The documents did not merely relate to logistical support or administrative processes of the courts.
- Kline v Official Secretary to the Governor General [2013] HCA 52.
- Freedom of Information Act 1982 (Cth), sections 5 and 6. These sections in the Commonwealth FOI Act limit the right of access from courts and certain tribunals to documents relating to ‘matters of an administrative nature’ only.
- Kline v Official Secretary to the Governor General [2013] HCA 52 [76].
- Kline v Official Secretary to the Governor General [2013] HCA 52 [41], [47], [71]-[72], [74], [77].
- Kline v Official Secretary to the Governor General [2013] HCA 52.
- Freedom of Information Act 1982 (Cth), sections 5 and 6. These sections in the Commonwealth FOI Act limit the right of access from courts and certain tribunals to documents relating to ‘matters of an administrative nature’ only.
- Kline v Official Secretary to the Governor General [2013] HCA 52 [76].
- Kline v Official Secretary to the Governor General [2013] HCA 52 [41], [47], [71]-[72], [74], [77].
