Section 61 - Disciplinary action

Extract of legislation

61	Disciplinary action
	(1)	Where the Tribunal, at the completion of proceedings under this Act, is of opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it in doing so, the Tribunal shall bring the evidence to the notice of—
		(a)	if the person is the principal officer of a department or prescribed authority—the responsible Minister of that department or prescribed authority; or
		(aa)	if a person is the principal officer of a council—to the council;
		(b)	if the person is an officer of an agency but not the principal officer of that agency—the principal officer of that agency.
	(2)	In the circumstances set out in subsection (1), the Tribunal must also bring the evidence to the notice of the Information Commissioner.

Guidelines

Where there is evidence of breach of duty or misconduct

1.1

During a review, the Victorian Civil and Administrative Tribunal (VCAT) may come across evidence that an agency officer is guilty of a breach of duty or misconduct when administering the Act.

1.2

Where there is sufficient evidence, VCAT may bring the evidence of this breach of duty or misconduct to the attention of the responsible person.⁴ VCAT must also tell the Office of the Victorian Information Commissioner.⁵

1.3

Section 61 is not intended to give VCAT the power to conduct a broad enquiry into concerns an applicant may have.⁶ Instead, it allows VCAT to act on evidence that comes to light during the review process.

Can an applicant ask VCAT to consider evidence of breach of duty or misconduct?

1.4

An applicant cannot apply to VCAT to ask that it take action under section 61 (bring the evidence of the breach of duty or misconduct to the attention of the responsible person). Section 61 requires VCAT to consider disciplinary action when the proceedings are complete.⁸

1.5

The exercise of that power is subject to the requirement in section 98(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) which requires VCAT to act fairly. This would normally require VCAT to give the officer against whom the allegations are being brought, an opportunity to be heard first.

‘In the administration of the Act’

1.6

If the breach is due to the administrative burden the Act imposes on an agency, invoking section 61 may not be justified. Similarly, VCAT may be reluctant to use the powers in section 61 if the misconduct is by a new FOI officer, still undertaking the learning process.¹¹

1.7

If the misconduct of one officer represents the broader attitudes of an agency, it has been said that it would be unfair to single out that officer, which VCAT may also take into account.¹²

Examples

Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3) (1986) 1 VAR 279

The applicant said the Administrative Appeals Tribunal (AAT) should take disciplinary action under section 61 against certain agency officers because some aspects of how they handled the request had prolonged the hearing.

The applicant argued that the agency had told him there were no documents responding to his request. However, the agency then found documents but said that they could not be released because they were covered by confidentiality clauses.

After proceedings had started, the agency found a further hundred relevant documents.

While the AAT agreed that the agency had misled the applicant, it did not exercise its powers under section 61.

Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000)

VCAT found the agency had misled them by describing documents as ‘draft’ witness statements, and that the agency failed to list three documents when required.

VCAT said that it was essential that agencies take all reasonable steps to ensure that the existence of all documents relevant to the request are disclosed to the applicant. However, VCAT chose not to invoke section 61.

Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 1941

The applicant invited the Tribunal to take action under section 61. The applicant alleged there had been breaches of the Act in relation to the search for documents. The applicant said that a document released under FOI was different to a version he had received earlier.

The agency did a search and found the earlier version and released it to the applicant.

VCAT found that because the differences between the documents were minimal, they were not satisfied that there was evidence of a breach of the Act.

Freedom of Information Act 1982 (Vic), section 61(1).
Freedom of Information Act 1982 (Vic), section 61(2).
Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 1941.
Freedom of Information Act 1982 (Vic), section 61(1).
Freedom of Information Act 1982 (Vic), section 61(2).
Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 1941.
Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000).
Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000).
Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3) (1986) 1 VAR 279, 292–294.
Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3).
Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3) (1986) 1 VAR 279, 292–294.
Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3).

Section 61 - Disciplinary action

Extract of legislation

Guidelines

Where there is evidence of breach of duty or misconduct

Can an applicant ask VCAT to consider evidence of breach of duty or misconduct?

‘In the administration of the Act’

Examples

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