CITATION: Simpson -v- Director General, Department of Education and Training [2000] NSWADT 134 DIVISION: General Division APPLICANT David Robert simpson PARTIES: RESPONDENT Director General, Department of Education and Training FILE NUMBER: 003160 HEARING DATES: 04/08/2000 SUBMISSIONS CLOSED: 08/30/2000 DATE OF DECISION: 09/21/2000 BEFORE: Hennessy N (Deputy President) APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Re Thies and Department of Aviation (1986) 9 ALD 454 Re James and Australian National University (1984) 2 AAR 327 at 341 Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 Ascic v Australian Federal Police (1986) 11 ALN N184 Re Heaney and Public Service Board (1984) 1 AAR 335 Re Australian Medical Association Limited and Health Department of Western Australia [1999] WAICmr 7 (27 April 1999) CASES CITED: Health Department of Western Australia v Australian Medical Association [1999] WASCA 269 (30 November 1999) Re Maher and Attorney-General's Department (1985) 7 ALD 731 Re Waterford and Department of Treasury (No 2) (1984) 5 ALD) 588 Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs ((1993) 1 QAR 60) Re Howard and Treasurer of Commonwealth of Australia (1985) 3 AAR 169 Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Decision No. 93002 Application S 15 of 1993 Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 Re Sunderland and Department of Defence (1986) 11 ALD 258 APPLICANT REPRESENTATION: In person RESPONDENT P Singleton, barrister ORDERS: 1. The decision under review is set aside; 2. In substitution for that decision, a determination is made to give access to the draft report to Mr Simpson. Introduction 1 These proceedings concern a 29 page draft report prepared in 1994 by an officer of the Department of School Education (the agency). The draft report, which was never published, relates to the pay, conditions and entitlements of casual teachers. 2 On 6 April 1996 Mr Simpson lodged an application under the Freedom of Information Act 1989 (FOI Act) with the agency for a copy of the draft report. Mr Simpson works as a casual relief teacher and, since 1988, has sought to improve the terms and conditions of employment for casual teachers. 3 On 5 June 1996 an officer of the agency made a determination refusing access to the draft report. On 12 June 1997, Mr Simpson requested an internal review of that decision. After an internal review, the original decision was affirmed. 4 The Director General of the agency maintains that the draft report is exempt under the internal working document provisions and/or the provisions relating to the effect that release would have on the conduct of industrial relations by an agency. Complaint to Ombudsman 5 In June 1997 Mr Simpson complained to the Ombudsman about the agency's decision to refuse access to the draft report. On 11 September 1997, the Ombudsman wrote to the Director General expressing the preliminary view that the document was not exempt as an internal working document and setting out the reasons for that conclusion. The most central of these reasons was that because a final report was never produced, it would not be contrary to the public interest for the draft report to be released. The Director General disagreed with the Ombudsman's preliminary view on this issue and the Ombudsman decided to conduct an investigation into the Director General's determinations and conduct in relation to Mr Simpson's application. 6 After setting out extracts from relevant cases on the issue, the Ombudsman asked the Director General to respond to several questions. The Director General's response was that the agency was relying on the internal working documents exemption and on the exemption relating to adverse effects on the conduct of industrial relations. The Director General's letter to the Ombudsman also cited proceedings which were then on foot in the Industrial Relations Commission and the Equal Opportunity Tribunal. 7 The Ombudsman decided to discontinue the investigation on 19 April 2000. This allowed Mr Simpson to make an application to the Tribunal under s 53(2)(c) of the FOI Act. On 15 May 2000 Mr Simpson lodged an application with the Tribunal. Conduct of the hearing 8 Mr Simpson represented himself at the hearing and the Director General was represented by Mr Singleton from the Crown Solicitor's Office. The draft report was disclosed to the Tribunal prior to the hearing and an order made under s 75(2)(d) of the Administrative Decisions Act 1997 (ADT Act) prohibiting disclosure of the document to any person other than the Tribunal member. 9 Some evidence was heard in the absence of the public and the applicant pursuant to s 55 of the FOI Act, in order to prevent the disclosure of any exempt matter. The law 10 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse access to a document is if it is an exempt document (s 25(1)(a)). An exempt document is defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1". The two exemptions relied on in this case are found in Clause 9 and Clause 16 of Schedule 1. 11 The internal working documents exemption in Clause 9 of Schedule 1, states that: (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. 12 The exemption relating to the conduct of industrial relations is in Clause 16 of Schedule 1, the relevant parts of which are as follows: A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and (b) would, on balance, be contrary to the public interest. 13 Section 59A of the FOI Act identifies certain factors which are not relevant when determining public interest. That section states that: For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may: (a) cause embarrassment to the Government or a loss of confidence in the Government, or (b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. 14 Section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency. Undisputed facts 15 On 10 December 1993 the agency and the New South Wales Teachers Federation (the Federation) entered into enterprise agreement No 525 of 1994 (the agreement). The agreement was not registered until 31 December 1994 and had an operative period of 12 months. It provided for a working party to be set up to review the rates of pay, working conditions and entitlement of casual teachers. The relevant provisions of Clause 11 of the agreement state that: 11.1 Principles 11.1.1 That casual teachers rates of pay will be increased by the same percentages as proposed for full time teaching staff during the term of this Enterprise Agreement. 11.1.2 That the parties set up a joint working party to consider the contribution of casual teachers to the effective delivery of public education and review the rates of pay, working conditions and entitlements of these teachers. 11.5 That the Federation's Casual Teachers Award application will be stood over for the duration of the agreement. 11.2 Performance Indicators 11.2.1 A working party consisting of equal numbers of the Department and Federation set up by 31 December 1993. 11.2.2 Review and recommendations to be completed by 1 December 1994. 16 In 1994 Mr Simpson made personal representations to his local member, Ms Clover Moore MP, seeking access to the draft report. The Hon John Aquilina, the then Minister for Education and Training, responded to a letter from Ms Moore on 29 June 1995. In that letter the then Minister said that: "Finalisation of recommendations has been delayed by the need to undertake an analysis of complex survey data relating to casual teacher employment . . ." 17 The current industrial instrument covering the conditions of employment of teachers is the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award 1996. Evidence 18 Mr Geoffrey Baldwin prepared an affidavit dated 25 July 2000 and gave oral evidence. During 1993 and 1994 he was the convenor of the joint working party on casual teachers and the author of the draft report. There were two other Departmental representatives on the working party and two officers from the Federation. The working party met on eight or nine occasions. The last meeting of the working party was in November 1994. Mr Baldwin prepared the draft report shortly before he resigned from the agency on 20 January 1995. 19 Mr Baldwin said that discussions were held among the members of the working party on a "without prejudice" basis. The working party discussed options for resolving the differences between the industrial parties as to the terms and conditions of employment for casual teachers. Working party members were free to confidentially discuss options, which were not the current policy of either the Minister or the Federation, without being held to those views. 20 The draft report contains gaps in relation to factual material that needed to be checked. It also contains handwritten notes commenting on aspects of the draft. The attachments referred to in the draft report had not been completed. 21 Mr Baldwin said that the draft report was written in language which anticipated that agreement would be reached among the members of the working party about the recommendations they should make. Agreement was never in fact reached and the options canvassed in the draft report were never adopted as the official view of either the agency or the Federation. Mr Baldwin envisaged that if the members of the working party had been able to reach agreement on some or all of the issues, a document setting out their recommendations would have been forwarded to senior officers within the agency for consideration and then to the Director General. According to Mr Baldwin, even if the recommendations became embodied in an agreement between the agency and the Federation, the report itself would have remained confidential. 22 Mr Baldwin gave evidence that the draft report was never completed because negotiations between the agency and the Federation broke down. Both parties recognised that because of the extent of their disagreement on many issues it was unlikely that they would be able to reach a consensus to put forward to their respective organisations. As a consequence, the draft report was not referred for official endorsement and did not become part of the agency's formal position. 23 Mr Baldwin said that "without prejudice" discussions between the agency and the Federation are held frequently. They are the basic mechanism for resolving contentious industrial disputes. In Mr Baldwin's view, disclosure of the draft report would have a profoundly negative effect on the ability and willingness of the union and the agency as the employer of casual teachers to engage in discussions and to draft possible options. 24 Mr Comino was the Director, Employee Relations, in the agency from March 1993 until his retirement on 5 August 1996. He prepared an affidavit dated 24 July 2000 and gave oral evidence. Mr Comino was a Departmental member of the joint working party. His recollection was that a draft report was written late in 1994 because the agency needed a summary of the issues which had been canvassed and a record of any anticipated agreement among members of the working party. He made hand written comments on the draft report which identified errors, omissions and policy alternatives. 25 Mr Comino corroborated Mr Baldwin's evidence that negotiations among members of the working party were held on a "without prejudice" basis and in confidence. Negotiations between the parties broke down in late 1994 and the working party did not meet again. The report was never submitted to the Federation, nor to more senior officers within the agency. 26 Mr Comino responded to a letter from Mr Simpson on 8 August 1994 advising him that "You, along with all other casual teachers, will be informed of the outcomes of the review." Mr Comino said that when he wrote that letter he was confident that agreement would be reached and that casual teachers would be advised of any changes to the terms and conditions of employment finally agreed to by the agency and the Federation. 27 According to Mr Comino, the issues canvassed in the draft report were discussed by the agency and the Federation in negotiating the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award consented to by the parties and made by the Industrial Relations Commission on 25 September 1996. 28 In Mr Comino's view, if the outcome of "without prejudice" discussions was disclosed, negotiations between the industrial parties would break down completely. 29 Paul Irving, the General Manager of Personnel in the agency, prepared an affidavit dated 24 July 2000 and gave oral evidence some of which was in public and some in camera. 30 According to Mr Irving, the agency and the Federation normally negotiate on a "without prejudice" basis. If the negotiations are successful then a document is prepared which is available to the public. The draft report represents ideas and positions put forward at several meetings of the joint working party. Mr Irving gave evidence that the document purports to reflect agreement among all the members when in fact, agreement was anticipated but never reached. 31 According to Mr Irving, there is a long standing and contentious dispute between the agency and the Federation on the issue of pay and conditions for casual teachers. The Federation has pursued several matters in relation to the pay and conditions of casual teachers through award applications in the Industrial Relations Commission and in the Administrative Decisions Tribunal. Under an agreement reached between the agency and the Federation on 25 May 2000, the Federation agreed to discontinue two award applications namely the NSW Education Employees (Non-continuing Contract Employment) Award (IRC 97/434) and the Amended Application for a Crown Employees (Teachers and Related Employees) Salaries and Conditions Award (IRC 99/6600). The 25 May agreement is an "in principle" agreement in relation to the salaries and conditions affecting government teachers. The details of that agreement are still being negotiated. If there is no consensus on the detail, the applications before the Industrial Relations Commission could be reinstated. 32 Mr Irving gave evidence that as at the date of the hearing, sensitive negotiations were on foot between Presidential officers of the Federation and senior officers of the agency in relation to the details of the "in principle" agreement. The issues discussed in the draft report form part of the subject matter of these negotiations. 33 In Mr Irving's opinion, release of the draft report now would totally undermine the conduct of industrial relations between the agency and the Federation. Furthermore, because the draft report does not represent the official position of the Director General or the Federation, disclosure would be misleading. The Federation and the agency would be concerned that they are portrayed as agreeing to certain positions which they never agreed to. This could mean that issues which have been resolved or are close to resolution in relation to current negotiations may re-emerge as contentious. Mr Irving could not identify any benefits which would flow if the draft report was disclosed. 34 Mr Irving also gave evidence in camera which I cannot record in these reasons. What I can say is that he identified issues raised in the draft report which are the subject of current negotiations. He also pointed to examples of passages in the draft report which were not the official view of the agency and other passages which, based on his understanding of the dispute, the Federation would not support. Findings of fact 35 I accept the evidence given by the three agency representatives, Mr Baldwin, Mr Comino and Mr Irving in relation to: the circumstances which gave rise to the draft report being prepared; the role of each of those representatives and the industrial parties in the preparation of the report; and the current status of negotiations on the terms and conditions of employment for casual teachers. That evidence was consistent and plausible and was not challenged in any fundamental sense by Mr Simpson. 36 The evidence in relation to the effect of disclosure of the draft report will be discussed further below. 37 In relation to Mr Comino's representations to Mr Simpson that he will be informed of the outcomes of the review, I accept Mr Comino's evidence that it was never intended that the report, if completed, would be made publicly available. In any event, even if Mr Comino did intend to provide Mr Simpson and others with a copy of the report when completed, that representation does not prevent the agency from subsequently relying on an exemption under the FOI Act to deny access. 38 There was some discussion at the hearing and in subsequent submissions about the number of casual teachers in New South Wales government schools and the proportion who are members of the Federation. This is not a relevant issue and I make no findings in relation to those matters. Agency's submissions 39 Substantive adverse effect on industrial relations. The agency's submissions in relation to the exemption under Clause 16(a)(v) were that the terms and conditions for casual teachers is a sensitive issue which remains a contentious and unresolved matter between the agency, the Federation and casual teachers. Even if agreement has been reached in relation to some issues, parties can raise those issues again. 40 Mr Singleton submitted that the release of the draft report can reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the Department by: · releasing preliminary and incomplete opinions and recommendations of Departmental officers which do not represent the final positions of the Department which will adversely affect the ability of the Department to negotiate; · undermining the confidentiality of negotiations regarding industrial matters. . . Negotiations relating to industrial matters are conducted on a without prejudice basis in confidence and it would have a substantial adverse effect on the ability of the agency to conduct industrial relations if this confidentiality was undermined; and · adversely affecting the Department's position in relation to negotiations currently on foot. 41 The agency also submitted that it would be contrary to the public interest to release the draft report as it is in the public interest for the agency to be able to conduct its industrial relations negotiations without being hindered by the public disclosure of such interim opinions and recommendations. It is also in the public interest for confidentiality in relation to industrial relations not to be undermined. 42 The agency's final point relates to s 25(1) of the FOI Act. In their view the Tribunal has no overriding discretion to release the draft report if it is found to be an exempt document. 43 Internal working documents exemption. Mr Singleton, on behalf of the agency, submitted that the draft report contains opinions advice and recommendations in relation to possible options for the employment conditions of casual school teachers. Furthermore, the draft report contains deliberations that have taken place for the purpose of the decision making functions of the agency. In his submission, it was prepared for the purpose of formulating the agency's position in relation to the terms and conditions of employment of casual teachers which could be brought to the joint working party for further discussion. Consequently the document meets the requirement of Cl 9(1)(a). 44 The agency put the view that disclosure of the document would, on balance, be contrary to the public interest as required by Clause 9(1)(b). The reasons given for this view were as follows: · the issues which are the subject of the Draft Report have still not been finalised; · the opinions, advice and recommendations contained in the Draft Report represent the incomplete and preliminary views of some Departmental officers. It is contrary to the public interest to expose the Departmental deliberative process to public scrutiny where what is involved is a draft document intended to progress the deliberative process further towards a final decision. The release of such a document would impede the frank exchange of ideas and information within the Department by inhibiting its thought processes. There is a legitimate public policy interest in agencies being free to "think" about their decisions and to record their deliberations without having to disclose those thought processes. This is especially true of deliberations which did not lead to a final decision. It is in the public interest for agencies to be able to explore and then abandon policy positions without those deliberations being the subject of later scrutiny; and · neither the Minister for Education and Training nor officers of the Department could be effective in the discharge of their responsibilities if documents which enable policy formation through effective decision making to take place are subject to be released to the public. 45 In relation to the provisions of Clause 11(2), the agency submitted that none of the material in the draft report appears in the agency's policy documents and although there is some supposedly factual and statistical material, the report does not merely consist of such material. Applicant's submissions 46 Mr Simpson submitted that the draft report is more than six years old and was never finalised. In Mr Simpson's view, the draft report has had no influence on the agency's policy in relation to the terms and conditions of employment. Furthermore, the failure of the agency to complete the report could be regarded as unreasonable and negligent. 47 Mr Simpson added that: The refusal to release the draft report may indicate a paternalistic attitude, an intention to stifle legitimate debate, to prevent change, to avoid justifiable criticism or protect an incompetent and discriminatory Department and Minister. 48 Mr Simpson said that the draft report was apparently prepared solely by the agency, but based on the work of the joint working party. In his view, the Federation must have been aware of the likely content of the report. If a discarded six year old draft report could have any influence on legal proceedings or negotiations between the Department and the Federation, it would be minimal. 49 Mr Simpson relied on s 59A of the FOI Act, set out above at paragraph13, to argue that it was not relevant to public interest if the government would be embarrassed or misunderstood by the release of the document. Reasons and decision 50 Substantial adverse effect on the conduct of industrial relations. As set out above at paragraph 12, a document is exempt if it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by an agency and would, on balance, be contrary to the public interest. 51 The phrase "substantial adverse effect" appears in the Freedom of Information Act 1982 (Cth) (FOI Act (Cth)) and in several state and territory freedom of information statutes. In summary, the phrase has been interpreted to mean that: · the effect must be "sufficiently serious or significant to cause concern to a properly informed reasonable person" ( Re Thies and Department of Aviation (1986) 9 ALD 454; and Re James and Australian National University (1984) 2 AAR 327 at 341); · disclosure of the document must be of some gravity ( Harris v Australian Broadcasting Corporation (1983) 50 ALR 551); · the effect must be "real and of substance and not insubstantial or nominal" ( Ascic v Australian Federal Police (1986) 11 ALN N184). 52 There are only a handful of cases in Australia which have considered the industrial relations exemption. Two cases which resemble the fact situation in the present case are Re Heaney and Public Service Board (1984) 1 AAR 335, a decision of the the Administrative Appeals Tribunal (AAT), and Re Australian Medical Association Limited and Health Department of Western Australia [1999] WAICmr 7 (27 April 1999), a decision of the Western Australian Information Commissioner. 53 In Re Heaney the AAT reviewed a decision of the Public Service Board (PSB) refusing access to certain documents. The documents were correspondence between the PSB and the Snowy Mountains Hydro-Electric Authority (the Authority) in relation to a salary campaign by the Association of Draughting Supervisory and Technical Employees (the union). The documents were requested by an official of the union. The correspondence in dispute contained an exchange of views between the Authority and the PSB on the attitude they should adopt to the union's salary campaign. 54 One issue in the case was whether, pursuant to s 40(1)(e) of FOI Act (Cth) disclosure of the documents would have a "substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations." The PSB argued that they should be able to discuss their views on the salary campaign with the Authority in private and present a united, agreed view to the union. 55 In Re Heaney the particular dispute which was the subject of the correspondence was at an end at the time of the hearing and the documents were not relevant to any pending dispute before the Industrial Relations Commission. Nevertheless the AAT decided that release of the correspondence would have a substantial adverse effect on the conduct of industrial relations. (In addition, they decided pursuant to s 40(2) of the FOI Act (Cth) that disclosure would not, on balance, be in the public interest.) The Tribunal's reasoning was that the documents represent the private views of the PSB and the Authority on the union's salary claim. If the documents were disclosed, the union would have the advantage of knowing the private views of the agency and any inconsistencies between those views and the views being put officially could be exploited. 56 In coming to its decision, the AAT said, at paragraphs 31 and 32, that: The fact that the particular industrial dispute to which the documents relate is currently at an end is a factor to be taken into account but it is not, in our view, conclusive one way or the other. The conduct of industrial relations over wage claims is an ongoing matter. An issue can always be revived, whether justifiably or not, as the basis of further industrial disputation. It is in the nature of industrial disputation that there are usually elements of compromise with neither employees nor employers necessarily achieving all they desire from the conciliation or arbitration processes, but nevertheless achieving sufficient to satisfy immediate aspirations. In that context, knowledge of the extent to which either the Authority or the Board was or may have been prepared to go in meeting a recent demand for increased salaries for its members, is in itself useful information to ADSTE. . . . Knowledge of precise points of disagreement on the management side may well be of use in any future salaries dispute and may facilitate identification of potential weak points in what may otherwise be quite properly presented as a united front. 57 The facts of Re Heaney, while somewhat similar to the present case, differ in certain important respects. Firstly, the disputed documents in Re Heaney reflected the private views of the agency and the Authority in relation to the extent to which each was prepared to go in meeting the union's demands for wages and conditions. In the present case the draft report does not represent either the official or private view of the agency or the Federation in relation to the terms and conditions of casual teachers. It represents a tentative position formulated by an officer of the agency in an attempt to gain consensus within the working group and ultimately between the industrial parties. 58 A second, though less significant, difference between the facts of Re Heaney and the present case is that in Re Heaney the documents were not relevant to any pending dispute before the Industrial Relations Commission. In the present case, while there are no proceedings pending in relation to the terms and conditions of casual teachers, the details of the 25 May agreement are still being negotiated. Mr Irving gave evidence that if there is no consensus on the detail, the applications before the Industrial Relations Commission could be reinstated. 59 The second decision mentioned above which interpreted the phrase "substantial adverse effect on industrial relations" is Re Australian Medical Association Limited and Health Department of Western Australia [1999] WAICmr 7 (27 April 1999). In that case the Western Australian Information Commissioner considered an application by the Australian Medical Association for access to documents relating to trade practices issues, competition policy and the terms of the agreement concerning the provisions of medical services by Visiting Medical practitioners in Western Australia. 60 The Health Department had established a working group composed of senior officers of the agency, to consider what options and strategies may be available in negotiating a new industrial agreement with the Australian Medical Association (WA) - a body independent from the applicant. The disputed documents included notes of working party meetings and notes setting out options open to the agency. 61 The West Australian Information Commissioner found that the agency had not established that any substantial adverse effect on the conduct of industrial relations could reasonably be expected to follow from the disclosure of the disputed documents. As in the present case, one of the agency's arguments was that the union with whom the agreement was being negotiated would be able to re-open or destabilise negotiations with the agency if the documents were released. In response to that argument the Commissioner said, at para 77 and 78, that: In my opinion, in this matter the agency's claims also rest entirely upon what it foresees as the adverse effects that would flow from the reaction of the AMA (WA) executive if access were granted to the disputed documents. Other than the unsubstantiated assertions of the agency, there is nothing before me to establish that disclosure of the disputed documents could reasonably be expected to inflame the AMA (WA) executive, nor that any reaction that disclosure might cause would have any serious effect on the agency's conduct of industrial relations. 62 The Commissioner's decision was upheld on appeal to the Western Australian Court of Appeal in Health Department of Western Australia v Australian Medical Association [1999] WASCA 269 (30 November 1999). 63 In the present case, evidence was given that disclosure of the draft report would have the following effects on the conduct of industrial relations by the agency: · releasing preliminary and incomplete opinions and recommendations of agency officers which do not represent the final positions of the agency, will adversely affect the ability of the agency to negotiate; · the agency and the Federation would be less willing, or even totally unwilling, to participate in confidential, "without prejudice" discussions of industrial issues with the Federation if the content of those discussions is revealed without the consent of both parties; · release of the draft report would undermine negotiations which are currently taking place between the industrial parties because the draft report not only addresses issues which are still currently the subject of negotiations but it purports to put an agency view in relation to those issues. 64 In relation to the first point, I am not satisfied that the fact that the draft report does not represent the final position of the agency means that its release could be expected to have a substantial adverse effect on the conduct of industrial relations by the agency. Officers of the Federation and the agency were both members of the joint working party and they would be aware that the document does not represent the final position of either industrial party. It is not clear to me how the release of tentative views would affect the ability of the agency to negotiate. 65 In relation to the second point, I am satisfied that the meetings were conducted on what is commonly known as a "without prejudice" basis. That term is defined in the Butterworths Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998 as: "A statement made without an intention to affect the legal rights of any person." The working group members discussed options and expressed opinions in the knowledge that neither they nor their organisation would be held to those views. In that sense, the members of the working party did not intend to make any admissions or concessions that would affect the legal rights of either the agency as employer or the Federation as representing employees. 66 The agency did not submit that disclosure of the draft report would give rise to an action for breach of confidence. In those circumstances it must be assumed that the agency's submission is that at least some of the information in the draft report was simply "obtained in confidence". In other words, it was obtained under an express or inferred understanding that it would be kept confidential. (See Re Maher and Attorney-General's Department (1985) 7 ALD 731 at 737). I am satisfied on the basis of the evidence of two members of the working group representing the agency, that the views expressed by Federation officers and the information provided by them in the working group meetings was obtained in confidence and that it was intended that the information be kept confidential at that time. 67 It is not clear how long it was intended that the information provided by the Federation be kept confidential. According to Mr Baldwin, even if the recommendations became embodied in an agreement between the agency and the Federation, the report itself would have remained confidential. This is arguably inconsistent with correspondence between the then Minister and Ms Clover Moore MP dated 29 June 1995 which indicates that the recommendations of the working party will be finalised in the near future. Mr Comino's letter to Mr Simpson dated 8 August 1994 says that he will be informed of the outcomes of the review. However I accept Mr Baldwin's direct evidence that he understood that the report would not be made public even if finalised. This does not necessarily mean that disclosure would have a substantial adverse effect on the conduct of industrial relations. 68 The agency's submission was that neither the agency nor the Federation would be prepared to participate in private negotiations in the future, if the content of "without prejudice" confidential discussions was to become public. 69 The contents of the draft report do not attribute any particular views to any one member of the working party, or to the Federation members as opposed to the agency members. It does contain statements which purport to be the views of the working party members. For example, without revealing any substantive aspect of the draft report, it indicates that the members of the working party "identified" certain issues or "agreed" on specific points. Mr Baldwin gave evidence, which I accept, that the draft report was written in language which anticipated that agreement would be reached among the members of the working party about the recommendations they should make. In fact, no agreement was reached on those issues and the working group was disbanded because there was no chance of reaching consensus on the issues raised in the draft report. 70 On the basis of this evidence and my examination of the draft report, its disclosure would not specifically identify the views of any individual member of the working group, or of the working group as a whole. The most that can be said is that the draft report reflects many of the issues and options discussed by the working group members and sets out options which were never adopted. 71 In these circumstances it cannot reasonably be expected that officers of the agency or the Federation would be reluctant or unwilling to participate in such discussions in the future. 72 These findings lead me to reject the agency's second submission in relation to the confidential and "without prejudice" nature of the discussions, that disclosure could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the agency. Having come to this conclusion, it is not necessary to consider whether disclosure would, on balance, be contrary to the public interest. 73 The agency's third point was that release of the draft report would undermine negotiations which are currently taking place between the industrial parties because the draft report not only addresses issues which are still currently the subject of negotiations but it purports to put an agency view in relation to those issues. 74 While the AAT in Re Heaney accepted evidence about the potential for the union to use the information in the document to undermine the bargaining position of the agency, the evidence in the present case is not persuasive. Contrary to the situation in Re Heaney the draft report is not evidence of how far the agency would be prepared to go in relation to any of the issues in dispute. Given the nature of the draft report it would be highly unlikely that the Federation or any other person or group could successfully use it to weaken the bargaining position of the agency. Officials of the Federation, having been involved in the working group process, know that the views in the report were never the official, or even the private views of the agency or the Federation. In these circumstances, the potential for the Federation or anyone else to undermine the agency's bargaining position by reference to the draft report would be virtually nil. 75 Consequently disclosure could not reasonably be expected to have an adverse effect on the conduct of industrial relations even though some of the issues canvassed in those documents are currently in dispute. Having made this finding, it is not necessary to determine whether disclosure would, on balance, be contrary to the public interest. 76 Internal working documents exemption. The second exemption relied on by the agency was the internal working documents exemption set out in Clause 9 of Schedule 1 to the FOI Act. (See paragraph 11 above where these provisions are set out). Having examined the draft report I am satisfied that it contains deliberations that have been recorded in the course of a decision making functions of the agency and the Minister. The meaning of "deliberation" was discussed in Re Waterford and Department of Treasury (No 2) (1984) 5 ALD) 588 at 606 where the Administrative Appeals Tribunal said: The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. 77 The contents of the draft report meet this description. The decision making function in question is the agency's function of determining the terms and conditions of employment for casual teachers. Consequently Clause 9(1)(a) of Schedule 1 is satisfied. 78 I am also satisfied that none of the material in the draft report appears in any of the agency's policy documents, nor does it merely consist of factual or statistical material. Consequently it does not fall within either of the exceptions outlined in Clause 9(2). 79 The final issue, pursuant to Clause 9(1)(b), is whether, on balance, disclosure would be contrary to the public interest. Whether or not disclosure would cause embarrassment to the Government or a loss of confidence in the Government or cause the applicant to misinterpret or misunderstand the information contained in the document are not relevant considerations (See s 59A of the Act set out above at paragraph 13.) 80 Mr Irving gave evidence that a reader would misunderstand the information in the draft report because he or she would assume that the views expressed were the official views of the agency and/or the Federation rather than the tentative, unofficial views of officers of the agency. Given the provisions of s 59A of the FOI Act, this opinion is not relevant to a determination of the public interest. 81 The question of whether disclosure would be contrary to the public interest must be considered in the light of all the relevant material before the Tribunal as at the date of the hearing. (See s 63 of ADT Act). The public interest considerations at the time the draft report was written or at some time in the future, are not relevant. 82 In determining this issue, the interests in favour of and against disclosure must be identified. and weighed against each other. The public interest in favour of disclosure of information in a general sense are embodied in the objects of the FOI Act. One of the objects of the FOI Act is to "obtain access to information held by Government" (s 5(1)(a)). The Act seeks to achieve this by means which include "conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government" (s 5(2)(b)). 83 In the second reading speech on the introduction of the Freedom of Information Bill to parliament in 1988, the then Deputy Premier of New South Wales, Mr Wal Murray, said that: This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility." 84 Consequently, public interest considerations in favour of disclosure relate to the fulfilment of the democratic objectives of the FOI Act to promote openness, accountability and responsibility of government. In particular, it could be argued that access to the draft report may have allowed Mr Simpson the opportunity to participate in the development of policy and to ensure that government was made accountable for its action or inaction. In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs ((1993) 1 QAR 60) the Queensland Information Commissioner undertook a comprehensive examination of the meaning of "public interest" in relation to internal working documents. In relation to the issue of participation in government decision making, the Commissioner noted, at 85, that: . . . citizens in a representative democracy have the right to seek to participate in and influence the processes of government decision-making and policy formulation on any issue of concern to them . . . The importance of FOI legislation is that it provides the means for a person to have access to the knowledge and information that will assist a more meaningful and effective exercise of that right. 85 The agency's submission on this point was basically that it is contrary to the public interest to expose the Department's deliberative process to public scrutiny because such exposure would impede the frank exchange of ideas and information within the Department by inhibiting its thought processes. In short, it is in the public interest for agencies to be able to explore and then abandon policy positions without those deliberations being the subject of later scrutiny. 86 This submission draws on was has become known as the "Third Howard Factor." In Re Howard and Treasurer of Commonwealth of Australia (1985) 3 AAR 169 the AAT said that "disclosure which will inhibit frankness and candour in future pre-decision communications is likely to be contrary to the public interest." In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs , Decision No. 93002 Application S 15 of 1993, the Queensland Information Commissioner said that: The third of the five Howard criteria, the "candour and frankness" argument has been viewed with a healthy scepticism by most presiding members of the Commonwealth AAT. Indeed some have made remarks which suggest that inhibition of candour and frankness is unlikely ever to suffice as a ground of injury to the public interest that would justify non-disclosure of documents under FOI legislation (see for example Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 at p.504-5, paragraphs 48 and 52; Re Sunderland and Department of Defence (1986) 11 ALD 258 at p.263). 87 The revelation of the working party's pre-decisional thinking at a time when the report was still being developed, or before the recommendations had been officially accepted by the industrial parties, may have had an adverse effect on the conduct of industrial relations. In my view an agency should not have to reveal its "thought processes" while deliberations are continuing if it would be contrary to the public interest to do so. This point was made by the Western Australian Information Commissioner when she said, in Re AMA Australian Medical Association Limited and Health Department of Western Australia, Re [1999] WAICmr 7 (27 April 1999), at paragraph 38, that: I remain of the view (expressed in previous decisions) that it would be contrary to the public interest to prematurely disclose documents while deliberations in an agency are continuing, if there is evidence that the disclosure of such documents would adversely affect the decision-making process, or that disclosure would, for some other reason, be contrary to the public interest. In either of those circumstances, I consider that the public interest is served by non-disclosure. I do not consider that it is in the public interest for any agency to conduct its business with the public effectively "looking over its shoulder" at all stages of its deliberations and speculating about what might be done and why. Generally, I consider that the public interest is best served by allowing deliberations to occur unhindered and with the benefit of access to all of the material available so that informed decisions may be made. 88 However, the negotiations in relation to the terms and conditions of employment for casual teachers have progressed considerably since 1994. The content of the draft report does not represent either the previous or current negotiating position of either party. Even if it did represent the thinking of some of the members of the working party in 1994, that thinking has long been superseded by further negotiations and the pursuit of award applications in the Industrial Relations Commission. An "in principle" agreement has now been reached between the parties subject to further negotiations on questions of detail. Some of the same issues canvassed in the draft report have still not been resolved, but the content of the draft report is not, in any sense, part of the agency's current "thinking processes". 89 I have concluded on the basis of this reasoning that there are no public interest considerations against disclosure of the draft report which outweigh the fundamental public interest considerations in disclosure; namely openness, accountability and responsibility of government. Orders 1. The decision under review is set aside. 2. In substitution for that decision a determination is made to give access to the draft report to the applicant. 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.