Ascic, M. v Australian Federal Police

Administrative Law.- Administrative Appeals Tribunal

Appeal -

request for examination documents of Australian Federal Police

College -

access denied - s.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(l)(c);(d) and (e).

Administrative Appeals Tribunal

Act 1975

Freedom of Information Act 1982	sub-ss.40(l)(a) and 40(l)(b)
Cases

James and Ors v. Australian National Universitv

6 ALD 687

Collins v. Minister for Immisration	and Ethnic Affairs (1981) 36	I
ALR 598	.1

Barrel1 v. Australian Broadcastins Commission

7 ALN 129

Harris v. Australian Broadcastins Corporation	(1984) 51 ALR 581	I .
, ’,

Tillmanns Butcheries Ptv Ltd

v. Australasian Meat Industrv

Emplovees’ 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

MARK0 ASCIC v. AUSTRALIAN FEDERAL POLICE

No. WA G47 of 1986

MUIRHEAD J.

PERTH

1 August 1986

IN THE FEDERAL COURT

)

OF AUSTRALIA

)

WESTERN AUSTRALIA

)	No. WA G47 of 1986

DISTRICT

REGISTRY

)

GENERAL

DIVISION

)

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

B E T W E E N :	i -
:i
MARK0 ASCIC

Appellant

and

AUSTRALIAN FEDERAL POLICE

Respondent

MINUTE OF ORDER

, . t .

JUDGE MAKING ORDER: MUIRHEAD J.	,
, l

DATE OF ORDER:

1 August 1986

I .

WHERE MADE:

Perth

THE COURT ORDERS THAT:

1. Appeal

dismissed.

The

decision of the Administrative Appeals Tribunal the

subject of the appeal be affirmed.

2 .

The appellant to pay the respondent's costs of the appeal.

Note:

Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA

)

WESTERN AUSTRALIA

)	No. WA G47 of 1986

DISTRICT

REGISTRY

)

GENERAL DIVISION

)

ON APPEAL from the General

Division of the

Administrative Appeals

Tribunal constituted

The Honourable Sir William

Prentice, Senior Member,

Mr I.A. Wilkins, and	Mr
F.A. Pascoe

B E T W E E N :

MARK0 ASCIC

Appellant

and

AUSTRALIAN FEDERAL POLICE

Respondent

CORAM: MUIRHEAD

1 August 1986

REASONS FOR JUDGMENT

This is an appeal from

a decision of the Administrative

Appeals

Tribunal

dated

the

18th

April ast.

Pursuant o

sub-s.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

Police College. The training course was designated as

D.T.S.

Stage I11

- 1/85. Much of the material he sought was supplied,

but access was denied

to copies of the examination papers,

the

applicant’s answers and master marking sheets. Access was denied

pursuant

sub-ss.40(l)(a)

and

40(l)(b)

the

Freedom

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

. . . . . ‘ l .

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

exempt document if its disclosure

under this Act would,

or could reasonably be expected to

prejudice the effectiveness of procedures or

methods for the conduct of tests, examinations

or audits by an agency:

prejudice the attainment of the

objects

particular

tests,

examinations

audits

conducted or to be conducted

by an agency;

have a substantial

adverse

effect

the

management or assessment of personnel by the

Commonwealth or by an agency;

have a substantial adverse effect on

the proper

and efficient conduct of the operations of	an
agency; or

. .

have a substantial adverse effect on the conduct

by or on behalf of the Commonwealth or	an agency
of industrial relations

l -

( 2 ) This

section

does not

apply

a document

I	respect	matter	of	the	in	document	the	disclosure	of	1.:
I.

which under this Act would, on balance,

be in the public

interest.

Whilst

access

was

initially

denied

pursuant

s&-s~.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

follows :

"We form the conclusion for the reasons expressed above,

that release of	the documents sought could reasonably
be expected to:-

prejudice

the

effectiveness

procedures

and

methods for the conduct of tests and examinations

by the Repondent: Cs.40(l)(a)3;

prejudice

the

attainment

the

objects

particular tests, namely the selection of the most

competent and the best candidates for appointment

as detectives: Cs.40(l)(b)l;

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: Cs.4O(l)(c)l;

4. have a substantial adverse effect on the proper and

efficient

conduct

the

operations

the

Respondent

exposing it to the selection of

inadequate

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

order

offset

the

advantages

that

some

candidates might otherwise obtain."

I .

While of

the opinion that there is a public interest

that such training procedures and tests as

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

Universitv

6 ALD 687). TSle

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,

intensive -course

. .

including tests or examinations. Successful

. completion clearly

carried with it career advantages. The course attended -by the

applicant commenced with

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 "true" or "false", short written exercise scenarios

and multiple choice questions.

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

confidence

the Tribunal

(which

I refer

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 in a 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

various sections of the course. They were,

generally speaking, used from course to course and thus (assuming

security)

tended

promote

consistency

assessment

candidates. However, ht 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

correct answers,

would be available

for

revision

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 "Copies

of questions are readily available". I do not propose to deal in

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

the

material

which

was

obtained, being

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

Tribunal's consideration was that the security system had been

breached and

that the 'prejudice' referred to in 5.40 and likely

to be caused by release of the papers was thus minimised.

I do

not agree with this submission. "he fact that limited or partial

access

exempt

documents

has

been

obtained,

and

possibly

distributed in

limited sphere, does not intrude upon the

essential integrity of the documents if exemption is claimed.

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 be

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,

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.

8 .

2. The production of differing sets of questions and

answers would be 'difficult'.

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.

Should

questions

and

answers

available

candidates before examination the choice, following

such examination "might reflect merely people of

short memory and little else".

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.

I	The applicant complains of some of these findings as

demonstrating errors in law, particularly those enumerated in

2 ,

and 7

above on the grounds that there was either no evidence to

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

be 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

the

consquences

disclosure could simply

be drawn.

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 Immiqration

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

chooses:

see

33(l)(c)

the

Administrative Appeals Act 1975.

An appellant who

attacks a conclusion

the

Tribunal

because

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.

‘I

10.

The appellant's counsel also argued that in reaching its

findings as to likely prejudice under

subss.40(1) and

( 2 ) the

Tribunal did not give sufficient weight to

the

fact that as

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 do not 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

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 do I

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 gapers. In fact, that fell for consideration in

determination

the

claim

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

that the question banks

have been devised and utilised in

a manner designed to enable fair

and consistent assessment.

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 in a

, .

' .

11.

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.

the only feasible approach, should disclosure be

ordered, and if standards

are

to be maintained would

restructure the examination system and devise

method whereby

, -

separate examination material should be used on each course.

The

[ ' ,

Tribunal's

findings

probable

prejudice

pursuant

sub-ss.40(1)(a) and 40(l)(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

Universitv

6 ALD 687 and

Barrel1 v. Australian

Broadcastins 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(l)(c)

and

(d)

the

Tribunal

failed

adequately

consider

the

impact

the

word

'substantial'

particularly in view of the considerations expressed by Beaumont

J. in Harris v. Australian Broadcastins Corporation (1984) 51 ALR

586

where His Honour observed "In my view, the insertion

of a

requirement

that

the

adverse

effect

"substantial"

indication of

the degree of gravity that must

exist before this

exemption can be made out". (See also Public Service Board

Scrivanich 8 ALD 44

(per Keely J. at 4 8 ) ) .

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

. I

I.,

12.

I *

under consideration. Deane

J. gave detailed consideration to the

word in Tillmanns Butcheries

Ptv Ltd v. Australasian Meat Industry

Emplovees' Union (1979) 27 ALR 367 at 382. Whilst the Court there was considering an application under s.45D of the Trade Practices

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

supporting the Tribunal's conclusions under sub-ss.40(l)(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.

was not strenuously argued before

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

the

Tribunal.	The appellant must pay the respondent's costs of the
appeal.

I certify that thls and

the eleven

preceding pages are a true copy of the

Reasons for Judgment herein of

his Honour Mr. Justlce Muirhead.

Associate

Dated: 1 August 1986

[1986] FCA 333

8 Jan 1986