Edition 5 (Victoria Special): Where Section 39 Stops

A quieter fault line runs through Victorian Freedom of Information (FOI) amendment law.

A record can be wrong. It can be corrected. It can be annotated so future readers see the dispute. But the decision that formed around that record may remain untouched.

That is where s 39 stops.

The distinction is doctrinally neat and practically messy. From the Tribunal's side, it protects amendment powers from becoming collateral appeals. From the applicant's side, it can mean the file is corrected only after the administrative consequences have already hardened.

This Victorian Special Edition turns to the Smeaton line of authority and asks what happens when record integrity and collateral attack meet at the same procedural doorway.

1. The Smeaton Context

The Victorian FOI environment makes this visible. In Smeaton v Accident Compensation Conciliation Service [2010] VCAT 1236 (Smeaton), Deputy President Macnamara dismissed an application to amend a Conciliation Outcome Certificate under s 39 of the Freedom of Information Act 1982 (Vic) (FOI Act (Vic)).

The context matters. The applicant had earlier succeeded in Smeaton v Victorian WorkCover Authority [2009] VCAT 1977, where Member Ian Proctor ordered notations to the decision file after finding that the file wrongly recorded Dr Strauss as having given a verbal opinion that Mr Smeaton was unsuitable to be appointed as a night carer. The point of the notation was not to erase the original record, but to ensure future readers understood there was disagreement about the file.

That is a clean example of record integrity: the original file remains intact, but the misleading impression is made visible.

The later application asked VCAT to extend that record-correction logic to the Conciliation Outcome Certificate produced downstream.

2. The Doctrinal Line

Mr Smeaton's later application failed.

The reason is the useful part. s 39 of the FOI Act (Vic) is concerned with the accuracy of official records. It is not a mechanism for challenging the merits or legality of the official action those records describe. The applicant's purpose was to show that, if the earlier file error had not occurred, the conciliation officer may have made a different direction. That was treated as a collateral attack on an administrative decision, not a record-correction exercise.

That distinction is important, but also difficult.

A record can be corrected. A decision produced through that record may remain untouched. The statutory pathway can acknowledge an error in the file while denying a remedy for the administrative consequences that followed from it.

3. Why Records Travel

That is where FOI amendment law overlaps with broader public law debates.

The question is not only whether an applicant is trying to relitigate the past. Sometimes they are. The harder question is whether the state's records now give future readers a fair account of the administrative process that occurred.

Government records travel. They are read later by legal branches, HR teams, investigators, review bodies and decision-makers who were not present when the original decision was made. A record may be historically accurate in one sense and still misleading in another if it preserves the outcome but loses the qualifier, the context or the procedural uncertainty around it.

4. The Reform Bridge

The Victorian reform debate points in the same direction. The Integrity and Oversight Committee's 2024 inquiry recommended replacing the FOI Act (Vic) with a Right to Information Act built around proactive and informal release. That is not just a legislative update. It is a redesign of what becomes visible without an applicant having to fight for it.

5. Closing

My own interest sits less in adversarial FOI strategy and more in procedural mapping: how timelines, review structures and information pathways shape substantive fairness.

The convergence between Victorian FOI practice and Commonwealth public law debates suggests that future reform may depend as much on process visibility as on statutory amendment. A new Act that preserves the gap between record correction and decision correction will reproduce the same practical gap under a more modern banner.

— Jay