Set aside by Appeal : CITATION: McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24 DIVISION: General Division APPLICANT PARTIES: David McCabe RESPONDENT Electoral Commissioner, State Electoral Office FILE NUMBER: 023264 HEARING DATES: 17/01/2003 SUBMISSIONS CLOSED: 01/17/2003 DATE OF DECISION: 02/05/2003 BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: access to documents - law enforcement & public safety - access to documents - operation of agencies - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - operation of agencies MATTER FOR DECISION: Principal Freedom of Information Act 1989 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Parliamentary Electorates and Election Act 1912 Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 113 Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner of NSW [2002] NSWSC 785 CASES CITED: Attorney General's Department v Cockcroft (1986) 10 FCR 180 Dykstra and Centrlink [2002] FCA 1442 at [25] Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd [2001] FCA 382 Secretary, Department of Workplace Relations and Small Business v Staff Development & Training Centre Pty Ltd [2001] FCA 1375 APPLICANT REPRESENTATION: J Kirk, counsel RESPONDENT A Johnson, solicitor ORDERS: 1. The agency's decision not to grant access to the document is set aside.; 2. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision.; 3. Agency to file any submissions in reply within a further 14 days.; 4. Any applications for costs is to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997. Introduction 1 On 27 November 2002 Mr David McCabe applied to the Tribunal for the review of a decision made by the Electoral Commissioner, State Electoral Office, under the Freedom of Information Act 1989 (FOI Act). The decision was to refuse Mr McCabe access to a list of 300 randomly selected names and addresses of members of the Restore the Workers Rights Party (the Party.) The Electoral Commissioner had previously written to the 300 people to confirm that they were genuine members of the Party. 2 On 18 February 2002 Mr McCabe, who is the secretary of the Party, applied to the Electoral Commissioner to have the Party registered under the Parliamentary Electorates and Elections Act 1912 (PEE Act). To be eligible for registration, a party must have at least 750 members. (See s 66A(1) of the PEE Act.) Mr McCabe provided declarations from more than 750 people that they were members of the Party. Registration of a party has several advantages including entitlement to financial and other benefits. 3 Section 66G(2A) of the PEE Act empowers the Electoral Commissioner to conduct "tests or inquiries" to determine whether a party is eligible for registration. In order to determine whether a party has 750 members, s 66G(2A) gives the Electoral Commissioner power to test the genuineness of the membership. The Electoral Commissioner: (a) may, before registering a party, require a written response from at least a specified percentage of all or any specified number of the members relied on for registration of the party confirming that they are in fact members of the party, and (b) may adopt any other test for verifying membership of the party that must be satisfied before the party is registered, and (c) may make other inquiries about the members of the party or the party for the purpose of determining whether the party is an eligible party and the application for its registration is duly made. The regulations may (but need not) sanction particular tests or inquiries for the purposes of this subsection. 4 No tests or inquiries are prescribed in the Parliamentary Electorates and Elections Regulation 2001. In accordance with this provision the Electoral Commissioner randomly selected 300 members who had declared that they were members of the Party and wrote to them in March 2002, requesting that they confirm that they are members of the Party. Pursuant to s 66G(2A)(a) of the PEE Act and his own internal policy, the Electoral Commissioner requires a positive written response from 75% of the 300 members (225 members) before he is prepared to register the Party. It is not in dispute that receipt of a further 27 positive responses is the only barrier to the Party being eligible for registration. The FOI application 5 Mr McCabe sought access under the FOI Act to the names and addresses of the 300 people to whom the Electoral Commissioner had written in March 2002. The Electoral Commissioner has provided Mr McCabe with the names of the members who have provided a positive response but not the names of the members who have provided a negative response or who have not responded. Mr McCabe's reason for seeking access to the document is so that he can contact those people who have not provided a positive response and request that they confirm their membership so that the Party can be registered. He says he cannot afford to contact all 750 members. 6 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to s 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. The Electoral Commissioner refused to provide the document, initially on the ground that it was an exempt document under Clause 4(1)(c) to Schedule 1 of the FOI Act. That exemption relates to documents the release of which could endanger the life or physical safety of any person. The Electoral Commissioner's decision was affirmed following an internal review. After Mr McCabe lodged his application with the Tribunal, the Electoral Commissioner amended his reasons for refusing to grant access to the document. In addition to clause 4(1)(c), the Electoral Commissioner now relies on clauses 16(a)(i) and (ii) which relate to the conduct of tests, examinations or audits, and clause 16(a)(iv) which relates to the effective performance by an agency of the agency's functions. 7 The Tribunal must determine whether the agency has made the "correct and preferable" decision and is entitled to consider grounds of exemption not relied on by the agency in its internal review decision. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act); Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 113 and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 at [57].) Pursuant to s 61 of the FOI Act, the onus of proof is on the agency to justify any decision to withhold a document. Context of these proceedings 8 On 30 August 2002, the Supreme Court handed down a decision in Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner of NSW [2002] NSWSC 785. Burchett AJ ordered that SOS be registered as a party and that the Electoral Commissioner's policy of requiring 75% of 300 members to provide positive confirmation of membership was invalid. Following this decision, the PEE Act was amended to include s 66D(4) which allows the Electoral Commissioner to "carry out preliminary tests and inquiries (including any test or inquiry referred to in section 66G) to determine whether the party is an eligible party and the application is duly made." Section 66G(2A), set out above at [3], was also inserted. (See Parliamentary Electorates and Elections Amendment (Party Registration) Act 2002.) These amendments, which operate retrospectively, put an end to proceedings in the Supreme Court commenced by the Party on 8 October 2002 seeking that the Electoral Commissioner register the Party. The parties to these proceedings agree that the amendments validate the Electoral Commissioner's policy. Background to the FOI application 9 Mr McCabe is a solicitor in Young and practices mainly in the area of workers compensation. He recruited many members of the Party from among his workers compensation clients who include ex-shearers and other rural workers. An Aboriginal Party member also recruited many members from Aboriginal reserves. A high proportion of the Party's members live in rural areas and many are limited in their ability to read and write. 10 It was not in dispute that of the 750 declarations from purported members of the Party, only 589 contained details of persons which matched their details on the electoral roll. The Electoral Commissioner identified those declarations and advised Mr McCabe that those declarations could not be taken into account. Mr McCabe has since provided the Electoral Commissioner with a total of 750 declarations all of which match the information about that person on the electoral roll. From the 589 names originally provided, the Electoral Commissioner randomly selected 300 people and sought their written confirmation that they were genuine members of the Party. 11 After the Electoral Commissioner had sent the letters requesting confirmation of membership, he provided Mr McCabe with a copy of the confirmation form so that he could re-send it, in case a member had lost or overlooked the correspondence. On 8 May 2002, Mr McCabe wrote to all members advising them of the Electoral Commissioner's policy and enclosing a copy of the confirmation form so that those who had been requested to complete it, but had not done so, could return the form. 12 In June 2002 Mr McCabe requested staff to telephone members and ask that they return their confirmation form if they had received one. Following the members' response to those communications, Mr McCabe is concerned that if he writes to all 750 members again it will create more confusion and agitation among members. 13 As at the date of the hearing, the Electoral Commissioner has received positive responses from 198 people and negative responses from seven people. Two letters were returned unclaimed. In total, 93 people to whom the Commissioner has written, have not responded. A further 27 affirmative responses must be received before the Electoral Commissioner is prepared to register the Party. 14 Mr McCabe's evidence was that the financial resources of the Party come from money he has donated. He says that the Party does not have the financial resources to employ a person to travel around NSW seeking confirmation from the 750 scattered members. He says that the only way he will be able to find out whether the remaining 93 members still wish to be members of the Party would be for his secretary to telephone those members individually. Endangering life or physical safety 15 Meaning of the provision. The first ground of exemption on which the agency relied was that release of the document could reasonably be expected to endanger the life or physical safety of any person. Clause 4(1)(c) states that: A document is an exempt document if it contains matter the disclosure of which could reasonably be expected to endanger the life or physical safety of any person. 16 The phrase "could reasonably be expected" was considered by the Full Court in Attorney General's Department v Cockcroft (1986) 10 FCR 180) and Searle v Public Interest Advocacy Centre (1992) 36 FCR 111. The majority in Cockcroft (at 190) and the Full Court in Searle (at 123) held that the words ought to be given their ordinary meaning, that is, something reasonable as distinct from something irrational, absurd or ridiculous. The applicant pointed out, and I agree, that these cases do not mean that merely because something is not "irrational, absurd or ridiculous" it could "reasonably be expected" to happen. 17 In Dykstra and Centrlink [2002] FCA 1442 at [25], Mansfield J stated that, in considering a claim under s 37(1)(c) of the Freedom of Information Act 1982 (Cth) (the equivalent Commonwealth provision), it is necessary: . . . to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous. 18 Mansfield J went on to say, at [26]: Section 37(1)(c) focuses upon the character of the documents, in all the circumstances of the case, to determine whether there is a realistic and material possibility of the harm contemplated by the section occurring." 19 Evidence. The Electoral Commissioner, Mr Wasson, gave evidence that he introduced the policy of not providing the names of the 300 members to a party seeking registration to avoid members being subject to threats and intimidation by a person attempting to have their party registered. He said that on about 15 or 20 occasions individuals had reported to staff of the State Electoral Office (of which he was then the Chief Administrative Officer) that they had been subjected to pressure to provide an affirmative response. 20 Mr Wasson said that on approximately three occasions he has spoken to individuals who have complained of such intimidation. Those callers did not identify themselves or the party involved. Mr Wasson did not give evidence of any instances of threats or intimidation by people associated with the Restore the Workers Rights Party. He said his policy applies to all parties because it would be unrealistic and improper to make a determination on a party by party basis about whether a party was likely to intimidate members who had been asked to provide confirmation of membership. Consequently, Mr Wasson formed the view that he could not be satisfied that the Party would not engage in any threatening practices if the names of the selected members were released. 21 Agency's submission. The agency's submission, in summary, was that given the reported experiences of past harassment, it is reasonable to expect that the physical safety of a person may be endangered by the release of the list of 300 names and addresses. 22 Applicant's submission. The applicant submitted that there was no evidence before the Tribunal that any relevant threat to "life or physical safety" has ever been made. According to the applicant, there must be some evidence or some proper basis for an inference to be drawn, before concluding that there is a reasonable prospect of a threat to life or physical safety. For example, in Dykstra v Centrelink [2002] AATA 659 there was evidence from two people that they experienced genuine fears for their safety while in the presence of Mr Dykstra. Mansfield J found that these fears and the implied threat contained in correspondence from Mr Dykstra was sufficient to conclude that the physical safety of the two people may be at risk if the document was released. 23 Tribunal's reasoning and conclusion. There is no evidence that any political party seeking registration has ever engaged in any conduct which could endanger the life or physical safety of any person. Mr McCabe gave detailed evidence about the communications he and his staff members have had with members in the past and the communications that they intended to have with members in the future. There was no hint of any improper conduct in any of those communications. I accept that evidence. 24 I also accept that unidentified parties have pressured or intimidated members into signing confirmation forms. However that finding falls a long way short of allowing an inference to be drawn that disclosure of the document in this case could reasonably be expected to endanger the life or physical safety of any person. Consequently, the agency has not discharged its onus of establishing that this exemption is made out. Conduct of tests and operations of the agency 25 The other three grounds on which the agency relied are set out in Clause 16(a)(i), (ii) and (iv): A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or (ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or . . . (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, and (b) would, on balance, be contrary to the public interest. 26 The words "could reasonably be expected" have the same meaning as they have in Clause 4. (See [16] above.) 27 Meaning of "test". The word "test" in Clause 16(a)(i) and (ii) should be given its ordinary meaning. The Macquarie Dictionary (3rd edition, The Macquarie Library) defines "test" to mean "that by which the presence, quality, or genuineness of anything is determined." This definition was also adopted in The Staff Development and Training Centre and Secretary, Employment, Workplace Relations and Small Business [2000] AATA 78 at [101] by Forgie DP in the context of the equivalent provision in the Freedom of Information Act 1982 (Cth). Although that decision was overturned on appeal, no consideration was given to the definition of the word "test." (See Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd [2001] FCA 382 and Secretary, Department of Workplace Relations and Small Business v Staff Development & Training Centre Pty Ltd [2001] FCA 1375.) 28 The applicant conceded that the manner in which the Electoral Commissioner had sought to verify that the Party has 750 bona fide members constitutes a "test" as defined in Clause 16(a)(i) and (ii). The applicant submitted that the "test" consists of the Commissioner's policy in writing to 300 randomly selected members and requiring positive written responses from 225 members. According to the applicant, the test also includes the Electoral Commissioner's subsequent conduct in: · providing Mr McCabe with the names of the people whose details did not match those on the electoral roll; · providing Mr McCabe with a copy of the confirmation form so that he could re-send it to any or all of the members; and · providing Mr McCabe with the names of those members who had provided a positive response to the Electoral Commissioner. 29 I am satisfied that the policy of the Electoral Commissioner in writing to 300 randomly selected members and requiring a positive written response from 75% (225) constitutes a "test". The additional conduct outlined above forms part of the procedures for the conduct of the test. Having come to this view, there is no need to determine whether the Commissioner's policy is also an "examination" or "audit". 30 Evidence. Mr Wasson's evidence was that it is necessary to maintain the confidentiality of the identity of the 300 people selected by him, to preserve the integrity of the sampling. According to Mr Wasson the aim of the testing is to verify whether a sufficient percentage of those persons relied upon in the application as members of the party willingly and without coercion, confirm that they are bona fide members of the party. He said that the possibility that individuals could be intimidated, harassed or pressured into affirming their membership of a party would corrupt the sample and defeat the purpose of the testing. While Mr Wasson was comfortable with Mr McCabe following up all members who have not already provided a positive response, he is concerned about the specific targeting of those members to whom the Commissioner has written. 31 Mr Wasson gave evidence that his agency attempts to assist parties applying for registration to comply with their policy requirements. The evidence demonstrates that Mr Wasson has done a great deal to assist the Party to comply with his policy, apart from providing it with a list of the 300 names. But Mr Wasson added that it is the Party's responsibility, not his, to follow up members to ascertain whether they are genuine. 32 Mr Wasson agreed that it would be harder for parties whose members had certain characteristics, to comply with his policy than other parties. He agreed, for example, that a small party would have more difficulty complying than a large party and that a party with a high proportion of people whose literacy level was low would have more difficulty complying than a party whose members were all literate. Mr Wasson conceded that he had adopted the policy of requiring a 75% response rate from 300 members on the basis that it was his opinion that it was "fair and reasonable." 33 The appropriateness or statistical validity of the test is not an issue in these proceedings. The parties agreed that while the Electoral Commissioner has a discretion to register the Party notwithstanding its non-compliance with the policy, he is acting lawfully in declining to register the Party. 34 Applicant's submission. The applicant's submission was that the PEE Act does not prevent the Electoral Commissioner from providing the list of 300 names to the applicant. Furthermore, in view of the assistance that the Electoral Commissioner has already given the applicant to comply with the policy, one more avenue of assistance would not prejudice the object of the test. 35 Tribunal's reasoning and conclusion. The object of the test is to ensure the existence and genuineness of the 750 members who have provided declarations of their membership. The method or procedure for the conduct of the test includes writing to 300 members as well as the further conduct of the Electoral Commissioner outlined above at [28]. The effectiveness of that procedure can only be ascertained by reference to the objects of the test. 36 The issue to be determined is whether disclosure of the document in this case could reasonably be expected to prejudice the effectiveness of the procedures or the object of the test. I accept that the effectiveness of the procedures and the object of the test would be prejudiced if a member of the Party pressured a person, who was not a genuine member, into completing a confirmation form. The effectiveness of the procedures or the object of the test would not be prejudiced if a Party member pressured a person to provide a positive response in circumstances where that person is a genuine member of the Party. 37 In this case there is evidence that if the document is disclosed, in all likelihood, one of Mr McCabe's administrative staff will contact the members on the list who have not provided a positive response. The only evidence that the administrative staff may pressure the member into providing a positive response in circumstances where that person is not a genuine member of the Party, is the evidence that other party members have pressured or intimidated their members in the past. Mr McCabe gave uncontroverted evidence of what he has done and what he proposed to do if he was given the names on the list. Nothing he has done or says he proposes to do would prejudice the effectiveness of the procedures or the objects of the test. Although other parties have improperly influenced members, the evidence in this case leads me to draw the inference that the Restore the Workers Rights Party is highly unlikely to engage in such tactics. Consequently I am not satisfied that disclosure could reasonably be expected to prejudice the effectiveness of the method or procedure for the conduct of the test or the attainment of the objects of the test. Given this conclusion, there is no need to consider whether disclosure would, on balance, be contrary to the public interest. 38 While I appreciate the difficulty the agency has in distinguishing between parties who may employ threatening tactics and those who would not, my decision must be based on the evidence in this particular case. Prejudice to the agency's functions 39 The applicant submitted, and the agency agreed, that the only impact of disclosure on the effective performance of the agency's functions would be the impact on the testing procedures or the attainment of the objects of the test. Consequently, in the circumstances of this case, clause 16(a)(iv) is a more general exemption which encompasses the specific concerns in Clauses 16(a)(i) and (ii). Furthermore, clause 16(a)(iv) requires proof of a "substantial adverse effect" on the performance of the agency of its functions. Based on all the evidence and submissions, the agency has not discharged its onus in relation to this exemption. Costs 40 At the hearing the applicant requested that if a decision was made in his favour, both parties be given an opportunity to provide written submissions in relation to costs. Consequently, I make the following directions: 1. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision. 2. Agency to file any submissions in reply within a further 14 days. 3. Any application for costs is to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.