'533 Administrative Law.- Administrative Appeals Tribunal - Appeal - request for examination documents of Australian Federal Police College - access denied - 3.40 Freedom of Information Act 1982 - security system breached - whether "prejudice" criteria in s.40 therefore minimised - consideration of "substantial adverse effect" in sub-ss.40(1)(c);(d) and (e). Administrative Appeals Tribunal Act 1975 Freedom of Information Act 1982 sub-ss.40(1)(a) and 40(1)(b) Cases James and Ors v. Australian National University 6 ALD 687 Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 Barrell v. Australian Broadcasting Commission 7 ALN 129 Harris v. Australian Broadcasting Corporation (1984) 51 ALR 581 Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 367. ON APPEAL from the General Division of the Administrative Appeals Tribunal constituted by The Honourable Sir William Prentice, Senior Member, Mr I.A. Wilkins, and Mr F.A. Pascoe MARKO ASCIC v. AUSTRALIAN FEDERAL POLICE No. WA G4? of 1986 MUIRHEAD J. IS PERTH . o> 1 August 1986 '\ G 1986 i aB2SL4 ; ase PNA Rui Lf . wp rmee es em nee oe ee IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G47 of 1986 ew ON APPEAL from the General Division of the Administrative Appeals Tribunal constituted by The Honourable Sir William Prentice, Senior Member, Mr I.A. Wilkins, and Mr F.A. Pascoe BETWEEN: MARKO _ASCIC Appellant and AUSTRALIAN FEDERAL POLICE Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 1 August 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. 2. Appeal dismissed. The decision of the Administrative Appeals Tribunal the subject of the appeal be affirmed. igs, we pe pee nn een ee ee Ca ee 7 at nr) et Pon va ay nee -_7T 7 oT x ice voter ery ot ey we te MTS 3. The appellant to pay the respondent's costs of the appeal. Note: Settiement and entry of orders is dealt with in Order 36 of the Federal Court Rules. emer ee aye wre ae eee eer ep ar tm 5 = ate eet Ve Bn ar ge a eee re et ae oe a , wat —— t IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G47 of 1986 wee we ON APPEAL from the General Division of the Administrative Appeals Tribunal constituted by The Honourable Sir William Prentice, Senior Member, Mr I.A. Wilkins, and Mr F.A. Pascoe BETWEEN: MARKO ASCIC Appellant and AUSTRALTAN FEDERAL POLICE Respondent CORAM: MUIRHEAD J. 1 August 1986 REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal dated the 18th April last. Pursuant to sub-3.44(1) of the Administrative Appeals Tribunal Act 1975 the appeal is restricted to questions of law. In March 1985 the appellant made a request under the Freedom of Information Act 1982, directed to the Commissioner of the Australian Federal Police. He requested certain documents associated with an examination or examinations he, as a member of that force, underwent during attendance at the Australian Federal ress a re wee ry ee a ro ree a5 ah eqmees eee ree mre ee oo Ie PO sp gee oo i te ae ee a Police College. The training course was designated as D.T.S. Stage III - 1/85. Much of the material he sought was supplied, but access was denied toc copies of the examination papers, the applicant's answers and master marking sheets. Access was denied pursuant to sub-ss.40(1)(a) and 40(1)(b) of the Freedom of Information Act. The decision having been upheld upon internal review the appellant made unsuccessful application for review to the Administrative Appeals Tribunal. Section 11 of the Freedom of Information Act provides - "Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to .... a document of any agency, other than an exempt document .....". It is common ground that the Australian Federal Police force is an 'agency' within the meaning of the Act. Part IV of the Act relates to exempt documents and s.40 provides as follows: (1) "Subject to sub-section (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to - (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; (b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency; (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or (e) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations ae oe regen pre ene er, fe imereer me 3. (2) This section does not apply toa document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest." Whiist access was initially denied pursuant to sub-ss.40(1)(a) and (b), sub-ss.(c) and (d) fell for consideration during the course of the review and these latter subsections were referred to by the Tribunal in affirming the decision on internal review. The appellant makes no complaint that these subsections were taken into account. The Tribunal expressed its overall conclusion as follows: "We form the conclusion for the reasons expressed above, that release of the documents sought could reasonably be expected to:- 1. prejudice the effectiveness of procedures and methods for the conduct of tests and examinations by the Repondent: [s.40(1)(a)J; 2. prejudice the attainment of the objects of particular tests, namely the selection of the most competent and the best candidates for appointment as detectives: [£s.40(1)(b)4; 3. have a substantial adverse effect on the assessment of personnel by the Respondent by leading to false or less reliable results of testing for promotion of officers to senior positions: [£s.40(1)(c)1; 4. have a substantial adverse effect on the proper and efficient conduct of the operations of the Respondent by exposing it to the selection of inadequate or less than the best available candidates for training for important jobs and by causing avoidable expense not only thereby but requiring it as a matter of prudence to devise and make available a number of alternative examinations in order to offset the advantages that some candidates might otherwise obtain." eee ee | os Alleceiened weneraiai me ep pe oe Ae. moe eres While of the opinion that there is a public interest that such training procedures and tests as we are considering should be as open and fair as possible, we are unable to conclude that there is any gain likely to ensue, or interest to members of the public arising from the making of these documents available to the applicant, such as could cause the balance of public interest to turn the decision of the Tribunal in favour of granting the application (compare James & Ors. v. Australian National University 6 ALD 687). The decision of the Tribunal therefore will be to affirm the decision on internal review which is the subject of application to it." I return briefly to the facts. The training course in question was conducted over a period of 12 weeks between 6 February 1985 and 26 April 1985. It appears to have been one of the final stages of detective training, an intensive - course including tests or examinations. Successful . completion clearly carried with it career advantages. The course attended -by the applicant commenced with 23 candidates, 16 of whom successfully completed it. The applicant did not fare well and withdrew after the fourth week, Periodic examinations were held. The - examinations took various forms. It was composed of questions to be answered "crue" or ""false", short written exercise scenarios and multiple choice questions. hres Perusal of some of the exhibits indicates that these tests were pretty far reaching, covering as they did relevant law, statutes, police practices and the like. The disputed documents, shown in confidence to the Tribunal (which I refer to compendiously as the test papers) also included marking guides to the papers. The Tribunal received evidence that after the test papers had been marked a 'post-mortem' was held when the answers were briefly analysed and checked, in the presence of the class. They were then retrieved and retained under secure conditions. The Tribunal received considerable evidence as to the system adopted and as to the reasons for security being maintained. The examinations were apparently carefully prepared in advance and were kept ina security bank, such questions being recycled for use during subsequent examinations and, as I understand it, during other courses. The test papers were designed to test proficiency and knowledge of various sections of the course. They were, generally speaking, used from course to course and thus (assuming security) tended to promote consistency in assessment of candidates. However, at least at the course attended by the appellant, total security was not attained. The appellant, and another police officer, who had also withdrawn from the same course, gave evidence of a deliberate scheme designed to evade the security measures. Their testimony was to the effect that by arrangement between the candidates the short period of the 'post mortem' was utilised by the candidates in copying questions and the correct answers. Each candidate apparently had the task of copying a section of the papers and thus it was planned that in this manner the whole, or a substantial section of the papers and pee te correct answers, would be available for revision or study purposes. The appellant clearly gained possession of a proportion of the answers and questions and in fact in his application for review to the Tribunal, one of the grounds stated was that "Coples of questions are readily available". I do not propose to deal in more detail with the evidence before the Tribunal on this particular issue, save to state that the respondent's witnesses indicated, that if this occurred, it was contrary to instructions, as I have no doubt it was. The material held by the appellant, his evidence and that of the other police officer who gave evidence in his cause, naturally enough excited the interest of the Tribunal which referred to this episode in the following terms: "It is patent that in the course which Constable Ascic attended a determined attempt was made to beat what was recognized as the desire of the Respondent to maintain security as to the contents of examination questions, the directing staff's solutions and the system of marking. After considering the method used by the candidates, it is difficult to avoid the conclusion that the whole, or most of the policemen on course were engaged in trying to cheat the system of their own organization (a course of conduct which we apprehend would be disturbing to the organizers of the Courses and the Force generally). Applicant's Counsel conceded that it was difficult to argue that consent had been given to the obtaining of the material that has been shown to have been gained. We make the finding that the authorities would not willingly have agreed to the material which was obtained, being so obtained; and that there was no authority given for the applicant and his colleagues and others in that regard." I mention this as it was suggested in argument that for the purposes of the application under the Freedom of Information Act this was not really relevant, what was relevant for the FA RT OTE ETRE REE NIE Fe eaten pment ve meee On ae iat rn Pad te ~ ood ert er eon a a", ~~. —— ew" / 7. Tribunal's consideration was that the security system had been breached and that the 'prejudice' referred to in s.40 and likely to be caused by release of the papers was thus minimised. I do not agree with this submission. The fact that limited or partial access to exempt documents has been obtained, and possibly distributed in a limited sphere, does not intrude upon the essential integrity of the documents if exemption is claimed. I only depart from this aspect by observing that the finding that "most of the policemen on course were engaged in trying to cheat the system" may bea little unsafe, based as it was upon the evidence of two officers only, both of whom had withdrawn from the course. However there is no doubt that the appellant had obtained access to some portion of the papers and answers in both accurate and inaccurate form. Be that as it may it seems to me, accepting the Tribunal's findings of fact, that it does a person in the appellant's position little credit to argue, albeit frankly, "I have obtained some of the information I seek. My case for retrieval of the balance under the Freedom of Information Act is thus the stronger". But that cannot as I have mentioned qualify the statutory prejudice referred to in s.40, which if not upheld, potentially permits general and full publication to the public, including those police officers who may become candidates. I precis the principal findings of the Tribunal: 1. The course upon which the question bank was utilized was current. rere ene = a an a eT eee eet nrcceay pees z ne sas eS te ce oe ase z. The production of differing sets of questions and answers would be 'difficult'. 3. The system adopted was convenient for prompt testing of a candidate's knowledge. 4, The testing system and the course was designed to indicate a candidate's initiative and ability. 5. Should questions and answers be available to candidates before examination the choice, following such examination "might reflect merely people of short memory and little else". 6. To permit disclosure would enable candidates to obtain advantage, not commensurate with their actual knowledge and abilities. 7. The release of documents would be likely to involve the respondent in substantial expense. 8. If they were not exempt it may involve abandonment of the tests after each such revelation. srrsao aes yoy pee cr tr ree ee i rn rs "foe Ste Siete ota oat bene ee be The applicant complains of some of these findings as demonstrating errors in law, particularly those enumerated in 2, 5 and 7 above on the grounds that there was either no evidence to 9. support such findings or that they were against the weight of evidence. But having read the material before the Tribunal I have reached the conclusion that the findings are justified in that there was material upon which they could reasonably he based. Some of course are based on inferential processes, some in my view are common sense deductions. There was a considerable body of evidence as to the design and preparation of the examination procedures from which inferences as to the consquences of disclosure could simply be drawn. An appellant in an appeal such as this, who in part rests his case on the argument that factual findings, unjustified by evidence, constitute errors of law, must show more for instance than that other findings were available or merited. Error of law will only be demonstrated if it can be shown that the Tribunal's findings are not supported by material before it. This Court referred to this aspect in Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601. "We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Act 1975. An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based." To ee ndeeeendhiimamaaiateanbenaamaniaeantinn ane derinatiemeraeaned aie iatee heel qoot re procr ere Bn an ree ete re ei ee voee te Oe Pn net 10. The appellant's counsel also argued that in reaching its findings as to likely prejudice under sub-ss.40(1) and (2) the Tribunal did not give sufficient weight to the fact that asa proportion of the questions and answers were in the appellant's possession, 'prejudice' had already been suffered and the prejudice contemplated by s.40 must be examined against this background. I only reiterate that I donot agree with that submission. The mere fact that information in respect of which an agency claims exemption may in fact, have been 'leaked' or otherwise obtained in limited and partly inaccurate form will not necessarily prejudice the merits of the exemption claimed. Disclosure by order under this Act, is a very different thing and has very different consequences to the limited possession by an appellant of sections of the questions and answers. Nor dol agree with the submission that the Tribunal gave undue weight to the manner in which the appellant obtained possession of but some of the test papers. In fact, that fell for consideration in determination of the claim of statutory prejudice under sub-ss.40(1) and (2) and in consideration of the accuracy or completeness of the documents thus obtained. It was not for the Tribunal, nor is it for me to sit in objective criticism of the examination procedure initiated and utilised by the respondent. The fact is that the question banks have been devised and utilised in a manner designed to enable fair and consistent assessment. As I have said, the evidence showed that the same questions may be encountered again by candidates on one course and probably will be utilised on further courses. If they are to be disclosed, and possibly could be learned ina ar wet soccer yore, Sc tee see ree ee ae pr ore 1l. parrot like fashion, clearly the value of the instruction and the motive of candidates to understand and digest the instructions would be prejudiced, as also would the quality of the candidates selected. So the only feasible approach, should disclosure be ordered, and if standards are to be maintained would be to restructure the examination system and devise a method whereby separate examination material should be used on each course. The Tribunal's findings of probable prejudice pursuant to sub-ss.40(1)(a) and 40(1)(b) are justified and in so far as they refer to those subsections are not inconsistent with previous decisions of the Tribunal in James and Others v. Australian National University 6 ALD 687 and Barrell v. Australian Broadcasting Commission 7 ALN 129. It is also contended that in finding that the release of the documents would have a "substantial adverse effect" within the meaning of sub-ss.40(1)(c) and (d) the Tribunal failed to adequately consider the impact of the word 'substantial' particularly in view of the considerations expressed by Beaumont J. in Harris v. Australian Broadcasting Corporation (1984) 51 ALR 586 where His Honour observed "In my view, the insertion of a requirement that the adverse effect be "substantial" is an indication of the degree of gravity that must exist before this exemption can be made out". (See also Public Service Board v. Scrivanich 8 ALD 44 (per Keely J. at 48)). The reference to 'gravity' in that dictum (and I say so with respect) causes me some difficulty. 'Substantial' is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues aye TF se rn re bd at tober einhialieds diner bed atrhanereseemieniate tee we Soa oe Seg eee per ta oe eocnee "Y tae * 24) wer tn 12. under consideration. Deane J. gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382. Whilst the Court there was considering an application under s.45D of the Trade Practices Act which refers to "substantial loss or damage" His Honour's words that "substantial loss or damage...includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal" appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations. I would have some difficulty in supporting the Tribunal's conclusions under sub-ss.40(1)(c) and (d) if 'substantial' imported a concept of gravity, which I do not consider it does. Be that as it may the material before the Tribunal which went to the structure and objectives of the examination system justified the Tribunal's findings that release of the documents would have the substantial adverse effects referred to above. It was not strenuously argued before me that the Tribunal was in error in its final conclusion that disclosure would not on balance be in the public interest. The appeal fails. I affirm the decision of the Tribunal. The appellant must pay the respondent's costs of the appeal. I certify that this and the eleven preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Muirhead. Cliypirth Qporotiren Associate Dated: 1 August 1986 eo eee ee ee ee . . a rT aa ye a adnate ier oan 2 nee -—— oe aeneeee eee ~ _. seo n5 wt wen re or See ma eri sett oe