Commissioner of Police, NSW Police Force v Eloss (GD)

[2011] NSWADTAP 43

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Commissioner of Police, NSW Police Force v Eloss (GD) [2011] NSWADTAP 43

Hearing dates:

14 September 2011

Decision date:

30 September 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
S Montgomery, Judicial Member
P Smith, Non judicial member

Decision:

1. Leave is refused for the appeal to extend to the merits of the Tribunal's decision.

2. The Tribunal's decision is affirmed.

Catchwords:

APPEAL - Freedom of Information Act 1989 (repealed) - whether Tribunal has jurisdiction to make orders about the form in which access to a document should be given - meaning of s 25(1)(b1) - procedural fairness - form of order

Legislation Cited:

Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997
Interpretation Act 1987

Cases Cited:

Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 (20 February 2004)
Johnston v Commissioner of Police [2009] NSW ADT 181
McGuirk v Commissioner of Police, NSW Police Force [2008] NSWADT 328
Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce [2008] NSWCA 140
Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186
Cheney v Sydney West Area Health Services [2008] NSWADT 29
Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 16
Keen v Telstra Corporation Limited [2006] FCA 834
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Kioa v West (1985) 149 CLR 550

Texts Cited:

Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)

Category:

Principal judgment

Parties:

Commissioner of Police, NSW Police Force (Appellant)
Ahmed Eloss (Respondent)

Representation:

Counsel
BD Kaplan (Respondent)
Crown Solicitor (Appellant)

File Number(s):

119022

 Decision under appeal 

Citation:

[2011] NSWADT 97

Date of Decision:

2011-05-06 00:00:00

Before:

General Division

File Number(s):

103123

REASONS FOR DECISION

Introduction

1. These proceedings highlight an apparently unforeseen consequence of an exemption in s 25(1)(b1) of the Freedom of information Act 1989 (now repealed). That exemption allowed an agency to refuse to grant access to a document if the document was available for inspection, free of charge, in accordance with that agency's policies and practices. However, if a person applies to the Tribunal for a review of that decision, and the Tribunal grants access, the Tribunal cannot determine the form of access the person is to be given. In particular, the Tribunal has no power to order that the person be given access to a copy of the document, rather than it merely being available for inspection. Consequently, if a person is seeking access to a copy of the document, they cannot obtain that outcome by applying to the Tribunal.

1. In this case, Mr Eloss (the respondent) applied to the NSW Police Force (the appellant) for a copy of an In-Car Video recording (ICV recording). The recording was of an incident which took place in September 2007 between himself and a police officer. Prior to applying for a copy of the document under the FOI Act , the respondent has been given the opportunity to view the ICV recording without charge at any time that was mutually convenient to him and the appellant. The appellant's case was that the respondent had been given that form of access in accordance with the In Car Video Master Standard Operating Procedures (SOP). The respondent was not satisfied with this form of access and applied under the FOI Act for "copies of any . . . ICV recording". The appellant refused his application relying on the exemption in s 25(1)(b1) of the FOI Act :

(1) An agency may refuse access to a document:

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices

1. The Tribunal set aside the appellant's decision and granted the respondent access to the ICV recording. The Tribunal made the following order - the respondent below was the NSW Police Force -

The decision of the respondent to refuse Mr Eloss access to the ICV recording is set aside and in substitution thereof a decision that Mr Eloss be granted access to the ICV recording the subject of this application.

1. The Tribunal did not specify in the order or in its reasons, the form of access the respondent should be given. The respondent submits that the effect of the Tribunal's order is that he should be given access to a copy of the ICV recording. The appellant has appealed against the Tribunal's decision on the ground, among others, that the Tribunal does not have jurisdiction to give the respondent access to a copy of the ICV recording. That decision, according to the appellant, is one that only the agency can make.

1. An appeal may be made on a question of law and, with leave of the Appeal Panel, may extend to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 113. The appellant also sought leave for the appeal to extend to the merits of the Tribunal's decision: ADT Act , s 113(2)(b).

1. The respondent contends that while the Tribunal came to the correct conclusion, it did so for the wrong reason.

Tribunal's decision

1. The respondent applied to the Tribunal for a review of the decision to refuse him access to the ICV recording under the FOI Act . In determining that application, the Tribunal asked itself the following questions:

(1) Is the SOP a policy for the purposes of s 25(1)(b1) of the FOI Act ? Yes.

(2)   Do the circumstances of the ICV recording of Mr Eloss fall within the SOP? No.

1. The Tribunal decided that while the SOP was a policy to which s 25(1)(b1) applied, the appellant did not make the ICV recording available to the respondent in accordance with that policy. The Tribunal found at [26] that there was no evidence about the circumstances in which the ICV recording was made available to the respondent. For that reason the Tribunal concluded that s 25(1)(b1) did not apply and the decision to refuse access was set aside.

1. In case it was wrong, the Tribunal went on to determine whether it should exercise its residual discretion to grant access to the document. The Tribunal decided that it was appropriate to exercise that discretion.

Grounds of appeal

1. The appellant's first and most fundamental ground of appeal was that the Tribunal does not have jurisdiction to determine the form that access should take. As the respondent had been given inspection or viewing access to the ICV recording prior to applying under the FOI Act , the apparent intention of the Tribunal's order was to grant the respondent access to a copy of the ICV recording. According to the appellant, the Tribunal does not have jurisdiction to make such an order. The appellant expressed this ground as follows:

The Tribunal erred in substituting a decision that the respondent be granted access to the ICV recording because it accepted that the respondent "has an ongoing right to access and view" the ICV recording and so did not have jurisdiction to consider whether the appellant should have provided the respondent with a different form of access to the ICV recording.

1. If that ground of appeal was not successful, the appellant put forward three alternative grounds of appeal. These were that:

(1) the Tribunal failed to accord it procedural fairness when determining the first issue, that is, that s 25(1)(b1) did not apply;

(2)   the Tribunal failed to exercise its jurisdiction because it failed to consider whether the ICV recording had been made available as a matter of practice as distinct from as a matter of policy; and

(3)   the Tribunal erred when applying the test relating to its residual discretion and further by taking into account an irrelevant consideration when doing so.

1. The appellant made no written submissions in relation to the third ground and effectively withdraw any reliance on it during the hearing.

Respondent's Contention

1. The respondent submitted that the Tribunal reached the right conclusion but for the wrong reason. According to the respondent, the Tribunal's reason for setting aside the decision should have been that s 25(1)(b1) applies only to policies directed to the public at large. As the SOP is a policy that applies only to certain individuals in certain circumstances, it is not a policy within the meaning of that term in s 25(1)(b1).

1. The respondent expressed this contention in the following way:

(1)   At [25] and [29] of the reasons for decision, Higgins DP agreed with the finding of Judicial Member Pearson in Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 181 that the 'free to view' policy was a policy falling within s 25(1)(b1) of the FOI Act, notwithstanding that access under that policy does not extend to the public at large.

(2) In resolving the question as to whether the SOP was a policy falling within s 25(1)(b1) of the FOI Act , Higgins DP misconstrued, or failed to formulate the correct legal test under, that provision, and thereby erred in law.

1. The appellant did not object to the respondent raising this contention even though the respondent's representative before the Tribunal at first instance had conceded that the SOP was a policy falling within s 25(1)(b1).

1. If successful, the respondent's contention would mean that it is unnecessary to deal with some of the appellant's grounds of appeal. For that reason we will deal with it first.

Meaning of s 25(1)(b1)

1. The question of whether the policies and practices referred to in s 25(1)(b1) must be policies and practices which make a document available to the public at large is to be determined in accordance with the principles of statutory construction. When interpreting s 25(1)(b1) regard is to be had to the purpose and objects of the legislation as a whole, the context in which that provision appears and to the ordinary meaning of the words used.

1. In general, a construction that would promote the purpose or object underlying the Act should be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987, s 34. The objects of the FOI Act set out in s 4 include "to extend, as far as possible, the rights of the public to obtain access to information held by the Government." The objects reflect the fact that an individual has "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."

1. The foundation of the FOI Act is that a person has a legally enforceable right to be given access to an agency's documents in accordance with the provisions in the Act: FOI Act , s 16. Section 24 gives an agency power, when considering an application for access to a document, to determine whether access should be given or refused.

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given-any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

1. An agency may refuse access to a document in certain circumstances. Those circumstances are set out in s 25 and include the circumstances in s 25(1)(b1) which are the subject of these proceedings:

(1) An agency may refuse access to a document:

(a) if it is an exempt document, or

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices, or

(c) if it is a document that is usually available for purchase, or

(d) if it is a document that genuinely forms part of the library material held by the agency.

(e) (Repealed) (Emphasis added)

1. Section 25(1)(b1) was inserted into the FOI Act in 1991: Statute Law (Miscellaneous Provisions) Act 1991, Sch 1. In his Second Reading Speech the then Attorney-General, the Hon Mr Dowd, made the following comment:

An amendment to section 25 of the Freedom of Information Act will clarify that agencies may properly refuse to grant access to documents if administrative action has been taken to make the documents available to the public free of charge. At present an agency may only refuse access to a document which has been made public subject to legislation. (Emphasis added.)

1. The respondent submitted that in accordance with the Second Reading Speech and a previous decision of the Tribunal ( Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 (20 February 2004), s 25(1)(b1) is restricted to policies and practices which require access to be made available to the public at large.

1. In the respondent's view, two decisions of the Tribunal which came to the opposite view, had not been correctly decided: Johnston v Commissioner of Police [2009] NSW ADT 181 at [29] and McGuirk v Commissioner of Police, NSW Police Force [2008] NSWADT 328 at [21].

Reasoning and conclusion

1. Section 25(1)(b1) does not state explicitly that it is confined to policies and practices which apply to the public at large. Those words would have to be "read in" to the provision in order for it to have that meaning. The ordinary meaning of the words in s 24(1)(1b) is that they are capable of referring to a policy and practice which relates to a section of the public or the public at large. Although, in accordance with the beneficial nature of the legislation, exceptions should be interpreted narrowly, that should not be done if it does not accord with the ordinary meaning of the words.

1. Paragraphs 25(1)(b) -(d) give an agency power to refuse access to a document when there are certain alternative means of inspecting, hearing, viewing or obtaining a copy of the document. Reading s 25(1)(b1) in the context of the rest of the provision and the Act as a whole, it is apparent that its purpose was to expand the categories of case in which an agency could justifiably refuse to grant access to certain documents. The intention was that if access in the form set out in s 25(1)(b) was available, then a person should not apply under the FOI Act for access to that document. If they did, the application could be refused.

1. As the purpose of the section is to prevent applications being made in circumstances where the document is available by some alternative means, as long as the document is available by that means, then the purpose of the provision is fulfilled.

1. Extrinsic materials may be referred to in order to ascertain the meaning of a provision, but only to confirm the ordinary meaning or to determine the meaning of the provision if that meaning is ambiguous or obscure, or if the ordinary meaning is manifestly absurd or ridiculous: Interpretation Act 1987, s 34. Spigelman CJ expressed strong views on the potential relevance of comments by Ministers in Second Reading Speeches in Harrison v Melhem [2008] NSWCA 67 at 384 saying that:

. . the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intentions of Ministers or Parliamentarians.

1. The meaning of s 25(1)(b1) is not ambiguous or obscure, nor is the ordinary meaning manifestly absurd or ridiculous. In those circumstances, and given the comments of Spigelman CJ, the words used in the Second Reading Speech are not determinative of the issue.

1. The Tribunal is not strictly bound by its previous decisions, especially those made at first instance.

1. We are not satisfied that the words in s 25(1)(b1) should be read down in the way that the respondent submits. It follows that the Tribunal did not err in construing s 25(1)(b1) as applying to the SOP in circumstances where that policy only applies to a section of the public.

1. We go on to consider the appellant's grounds of appeal.

No jurisdiction to determine form of access

1. The Tribunal's order was that "Mr Eloss be granted access to the ICV recording the subject of this application." There was no discussion in the decision about the form that access should take. The appellant submitted that because the Tribunal had found that the respondent had "an ongoing right to access and view" the ICV recording, the only way to make sense of the Tribunal's order was to interpret it as an order that the appellant give the respondent a copy of the recording. That is also the interpretation that the respondent advocated. According to the appellant, the Tribunal had no jurisdiction to make an order which contained that implication.

1. We agree with the parties that in the absence of any discussion in the decision of the form in which access was to be given, it appears that the Tribunal intended, by its order, that the appellant give the respondent access to a copy of the document.

1. The Tribunal's jurisdiction, in circumstances such as this, is found in s 53 of the FOI Act . Under s 53(1),

A person who is aggrieved by a determination made by an agency under s 24 . . may apply to the Tribunal for a review of the determination.

1. The circumstances in which a person is aggrieved by a determination are set out in s 53(3). They include where an agency refuses to give the person access to a document: s 53(3)(a)(i). In Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce [2008] NSWCA 140 at [95] and [105] the Court of Appeal at [95] that:

The basis for an application to review a determination is to be found in s 53 of the FOI Act and it is limited, relevantly for present purposes, to "a determination . . . under s 24": s 53(1).

1. Significantly, there is no reference in s 53 to a person being aggrieved by a determination that access to a document be given in a particular form. Section 27 is the provision which determines the form of access that an agency must provide to an applicant.

(1) Access to a document may be given to a person:

(a) by giving the person a reasonable opportunity to inspect the document, or

(b) by giving the person a copy of the document, or

(c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device-by making arrangements for the person to hear or view those sounds or visual images, or

(d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound-by giving the person a written transcript of the words recorded in the document, or

(e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form-by giving the person a written transcript of the words contained in the document, or

(f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document-by giving the person a written document so reproduced.

(2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form.

(3) Notwithstanding subsection (2), if the giving of access in the form requested:

(a) would unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or

(b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or

(c) would involve an infringement of copyright subsisting in matter contained in the document,

access in that form may be refused but, if so refused, shall be given in another form.

(4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested.

(5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given.

(6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid.

1. The respondent submitted that s 24 gives an agency in receipt of an application under the FOI Act essentially two options: to give access to the document or to refuse access to the document. In this case, access to the document was refused. As access was refused the respondent had standing to apply to the Tribunal for a review of the decision: FOI Act , s 53(3)(a)(i). We agree with that proposition.

1. The respondent went on to submit that once the Tribunal's jurisdiction is enlivened, it has power under section 63 of the ADT Act to "exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision." According to the respondent, one of those functions is the function of determining the form that access should take: FOI Act , s 27. While there is some early authority for that proposition, ( Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [28]) the Court of Appeal has since made it clear that it is not correct. In Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce [2008] NSWCA 140 one of the issues was whether s 63 of the ADT Act empowers the Tribunal to carry out a search for documents that the agency is required to undertake when responding to an application under the FOI Act . The Court set out s 63 which states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. The Court (Beazley JA, Basten JA, Giles JA agreeing) concluded at [118] that:

118 On the broadest view of the powers conferred by s 63, the Tribunal is, in literal terms, empowered to carry out the search required to be undertaken by the agency in responding to the application. That approach would be incorrect, however, because sub-s (2) is limited to the purposes of sub-s (1), which involves the determination of an application for review of a reviewable decision. Section 63 should be seen as a conferral of power, which assumes, but does not address, the scope of the Tribunal's jurisdiction. It neither expands nor contracts the scope of the jurisdiction conferred by s 24.

1. Similarly, in this case, the Tribunal is limited by s 63(2) to exercising the functions of the administrator for the purpose of determining an application for a reviewable decision. The application in this case was to determine whether the appellant's decision to refuse access was the correct and preferable decision. The Tribunal can determine that application without exercising the agency's functions under s 27.

1. Consequently, we are satisfied that the Tribunal does not have jurisdiction to determine the form in which access to a document is given. That conclusion is supported by the Appeal Panel's decision in Cheney v Sydney West Area Health Services [2008] NSWADT 29 at [11], where the Tribunal said that s 53 did not "give a person a right to apply to the Tribunal for a review of the decision made under s 27 in relation to the form of access." The same view was expressed in Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 16 at [79]. The respondent attempted to distinguish these decisions on the basis that the agency had granted access in a particular form, rather than refused access. Regardless of whether the agency's decision was to grant or refuse access, the Tribunal has no jurisdiction to determine the form that access should take.

1. In those circumstances, the Tribunal's order granting access to the ICV recording should be interpreted so as to preserves its validity: Keen v Telstra Corporation Limited [2006] FCA 834 at [31]. That means that is should be interpreted as granting the respondent access to the document, with the form of access to be determined by the appellant in accordance with s 27. The appellant cannot rely on its previous determination to make the document available pursuant to the SOP.

1. We recommend that the appellant make a new decision about access expressly and quickly. Given the history of this matter, it would also be prudent for the appellant to provide written reasons for its decision.

1. Having come to this conclusion, it is our understanding that the appellant did not regard it as necessary to consider the two alternative grounds of appeal. Nevertheless we make the following short observations.

Construction of s 25(1)(b1)

1. The first of the appellant's alternative grounds of appeal was that the Tribunal misconstrued s 25(1)(b1). The Tribunal decided that s 25(1)(b1) did not apply because the respondent's circumstances did not come within the terms of the SOP policy. The Tribunal found, as a matter of fact at [26], that the appellant's SOP policy only applied where an "accused person" had been given an ICV card or had been issued with a Traffic Infringement Notice. Neither of those circumstances applied in this case. The appellant submitted that the Tribunal failed to consider whether the document was available free of charge pursuant to the agency's practice of allowing FOI applicants to view ICV recordings. The appellant contended that this general practice is reflected in that part of the SOP headed "Other situations for Release" which states, in part:

Under Part 3, Section 25 of the Freedom of Information Act 1989 Number 5 an Extract is outlined below, a copy of a recorded media file will NOT be provided to person/s outside NSW Police except where a court order has been issued.

The NSW Police policy of "free to view" recorded media files at HWP Offices permits an exemption under FOI . . .

1. According to the appellant, the phrase "agency's policies and practices" in s 25(1)(b1) should be construed as having a cumulative effect so that the phrase reads "agency's policies or practices". It is sufficient if access to a document is available free of charge pursuant either to an agency's policy or pursuant to an agency's practice. The word "and" can be construed disjunctively where the context in which the words appear, or the purpose of the legislation, make it clear that such an interpretation is necessary: Pearce and Geddes, Statutory interpretation in Australia (7 th ed, 2011) at [2.30] and the cases cited there.

1. The appellant went on to submit that a "policy" implies a documented, structured arrangement. A "practice' is something more informal. Both words must be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. If an agency has a formal policy that provides for certain documents to be available free of charge, it follows that the agency's practice would be consistent with that formal policy. In that scenario, there would be no need to include a reference to an agency's practice in s 25(1)(b1) if the only kind of practice that were relevant were one which involved carrying out a formal policy.

1. Accordingly, the appellant submitted that to give meaning to the word "practice" in s 25(1)(b1), it must refer to a practice which either supplements a formal policy or exists independently of that policy. As a matter of statutory construction, having regard to the context in which the word "and" appears it was submitted that the word should be read as "or".

Reasoning and conclusion

1. The difficulty with the appellant's submission is that there was no evidence before the Tribunal that the respondent was given inspection access to the ICV recording in accordance with the agency's practice of allowing FOI applicants to view ICV recordings or in accordance with any other policy or practice that was not part of SOP. The respondent had been given inspection access prior to applying for a copy of the document under the FOI Act .

1. The Tribunal's reasoning at [26] to [28] explains the situation:

26 As mentioned above, the 'free to view' ICV recordings policy only applies where an 'accused person' has been given an ICV Card, or issued with a Traffic Infringement Notice. There is no evidence before the Tribunal that Mr Eloss was given an ICV Card or issued with a Traffic Infringement Notice. Inspector Lipman does not give any evidence about the circumstances in which the ICV recording was made of Mr Eloss. I can only assume from his statement that he has never looked at the ICV recording or the information that is held in regard to the circumstances in which it was made. There is no dispute that police stopped Mr Eloss while they were conducting stationary random breath testing. That is, he was not being pursued or otherwise followed by police prior to being stopped. It was Inspector Lipman's evidence that it was in such circumstances where the SOP provided that a highway patrol officer will activate the ICV system and it is not turned off until after the driver of the vehicle has been spoken to and allowed to drive off again. There was no evidence before the Tribunal that the SOP made provision for the ICV system to be activated in circumstances where police are conducting stationary random breath testing. It may do so, but no evidence of this was provided.

27 On the assumption that the ICV recording of Mr Eloss was made in accordance with the practices set out in the SOP, the uncontested evidence is that Mr Eloss was issued with a Court Attendance Notice and that, in accordance with the SOP policy for such circumstances, a brief of evidence was prepared in order to prosecute Mr Eloss for the offence charged as specified in the Notice. That brief of evidence included a copy of the ICV recording of Mr Eloss. In my view, the fact that the prosecution of this charge was not pursued and Mr Eloss pleaded guilty to an offence of speeding does not mean that the SOP 'free to view' ICV recording policy applies so as to refuse Mr Eloss access on the grounds of paragraph 25(1)(b1) of the FOI Act. It is my understanding from the submissions filed by the solicitor for Mr Eloss that the ICV recording does not record Mr Eloss speeding in his car. However, as stated above it does record the interchange between Mr Eloss and Constable Rider, which was the subject of Mr Eloss' complaint. The ICV recording, I note from the submissions of the solicitor of the respondent, was used in the course of the investigation of Mr Eloss' complaint, which appears to have been conducted concurrently with the prosecution of the 'street racing' charge that had been made against him.

28 On the basis of my findings that the respondent has failed to establish that the ICV recording of Mr Eloss falls within the SOP 'free to view' ICV recording policy, I find that the respondent's determination that Mr Eloss be refused access to the ICV recording in question on the grounds set out in paragraph 25(1)(b1) of the FOI Act is not justified.

1. We agree with the respondent's submission that it is unnecessary to determine whether the phrase "policies and practices" should be read disjunctively. That is because there was no evidence of a separate practice, independent of the SOP, of permitting a person in the respondent's circumstances to view ICV recordings. Nor do the circumstances outlined under the heading "Other situations for Release' apply to the circumstances in which the respondent was given inspection access.

1. As a question of fact, the Tribunal decided that the SOP policy did not cover the respondent's circumstances. As there was no evidence of any other policy or practice that was said to apply to those circumstances, it is not necessary to determine whether the Tribunal misconstrued s 25(1)(b1).

Procedural fairness

1. The second alternative argument relates to procedural fairness. According to the appellant the Tribunal did not provide it with an opportunity to be heard in relation to whether the SOP permitted the respondent to access the ICV recording in circumstances where he had not been given an ICV card or a traffic infringement notice or because the ICV system should not have been activated in the case of a stationary random breath testing.

1. The short answer to this ground of appeal is that the onus was on the appellant to establish that the determination was justified: FOI Act , s 61. That is, it was the appellant's responsibility to place before the Tribunal material seeking to justify its determination. It did so by tendering a statement from Inspector Lipman annexing extracts from the SOP. Various authorities make it clear that the Tribunal is under no obligation to expose its thought processes or provisional views and invite the parties to make submissions prior to making a decision: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 590-591; Kioa v West (1985) 149 CLR 550 at 487.

Leave to extend to the merits and form of orders

1. In accordance with the appellant's first ground of appeal, we have decided that the Tribunal exceeded its jurisdiction by implicitly granting the respondent access to a copy of the ICV recording. However, the Tribunal's order need not be set aside because it can be interpreted in a way which preserves its validity.

1. In those circumstances there is no need to extend the appeal to the merits of the Tribunal's decision. The Tribunal's decision was the correct decision, except insofar as it implied that the respondent should be given a copy of the ICV recording. We have decided that the Tribunal's order granting access to the ICV recording should be interpreted in a manner which preserves its validity: Keen v Telstra Corporation Limited [2006] FCA 834 at [31]. That means that is should be interpreted as granting the respondent access to the document, with the form of access to be determined by the appellant in accordance with s 27.

1. In those circumstances, the appellant submitted that we should make the following order:

Section 25(1)(b1) does not apply and therefore access to the document should be granted. However, an order that access be granted cannot proscribe the form in which the appellant is to provide that access.

1. With respect, that is not an order the Appeal Panel could or should make. The Tribunal, at first instance, has power to affirm, vary or set aside the agency's decision: ADT Act , s 63(3). In this case the Tribunal made an order setting aside the agency's decision. When making orders, the Tribunal, at first instance and on appeal, should refrain from making findings or comments which are not in the form of an order. The place for such findings or comments is in the reasons for decision.

1. Nothing in s 114, which sets out the Tribunal's powers to make orders on appeal, suggests otherwise:

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:

(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),

(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for an order made by the Tribunal.

1. The power to make "such orders as it thinks appropriate in light of its decision" contemplates that if the Tribunal is of the opinion that although error of law has been demonstrated, the decision is nevertheless clearly correct, it is open to the Tribunal to dismiss the appeal: House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 at [30], Greenwood J. Section 114(1) does not give the Tribunal power to express the order in the form proposed by the appellant.

1. The appropriate order in this case is to affirm the Tribunal's decision. That decisions was that: "The decision of the respondent to refuse Mr Eloss access to the ICV recording is set aside and in substitution thereof a decision that Mr Eloss be granted access to the ICV recording the subject of this application." Given our reasons, we note that the appellant is to determine the form of access in accordance with s 27 of the FOI Act .

Orders

1) Leave is refused for the appeal to extend to the merits of the Tribunal's decision.

2) The Tribunal's decision is affirmed.

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Decision last updated: 30 September 2011