HINDS and AUSTRALIAN NATIONAL UNIVERSITY

[2011] AATA 772

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL      )           Nos 2009/5662, 2010/0111

)              &  2010/0354

GENERAL ADMINISTRATIVE DIVISION		)
Re		LYN HINDS

Applicant

And AUSTRALIAN NATIONAL UNIVERSITY

Respondent

DECISION

Tribunal Member Mark Hyman

Date1 November 2011

PlaceCanberra

Decision

Having heard the parties, and pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal directs that: The application for amendment under matter 2009/5662, to the extent not presently resolved by agreement between the applicant and the respondent, falls outside the scope of the Freedom of Information Act 1982 (Cth); The applications for amendment under matters 2010/0111 and 2010/0354 fall within the scope of the Freedom of Information Act 1982 (Cth); and The respondent’s motions for exclusion of the matters referred to in paragraph 2 above are denied.

..................[sgd].........................

Mark Hyman, Member

CATCHWORDS

FREEDOM OF INFORMATION – amendment and annotation of personal records – whether amendments sought fall within scheme of the Act - definition of personal information – amendment of record of opinion – attempts to re-agitate matters already decided - defamatory amendment proposals – onus of proof

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43

Freedom of Information Act 1982 (Cth) ss 4, 48, 49, 50, 51, 51A, 51B, 51C, 51E, 55, 61

Briginshaw v Briginshaw (1938) 60 CLR 336
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Hayes v Cable (1961) 62 SR (NSW) 1

IW v City of Perth (1996) 191 CLR 1

McDonald v Director-General of Social Security (1984) 1 FCR 354

Ormond Investment Co Ltd v Betts (1928) AC 143

Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839

Re Hinds and Australian National University [2011] AATA 261

Re Loqmani and Minister for Immigration and Citizenship [2008] AATA 74

Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291

Waters v Public Transport Corporation (1991) 173 CLR 349

REASONS FOR DECISION

1 November 2011 Mark Hyman, Member

1.Dr Lyn Hinds, the applicant, was employed by the Australian National University (ANU). After she left the ANU’s employ, she brought a grievance process in which she was unsuccessful. Dr Hinds subsequently applied under section 48 of the Freedom of Information Act 1982 (‘the FOI Act’) to amend three documents: a report by the ANU to a funding body, the Australian Research Council (‘the Final Report to the ARC’); and two emails, generated during the course of the grievance process, each recounting some of the background to and events involved in the matters aired in the grievance. One of those emails was written by Professor Valerie Braithwaite (‘the Braithwaite email’) and one by Professor Peter Grabosky (‘the Grabosky email’). The ANU declined to amend any of the documents, and in three separate applications Dr Hinds sought review of those decisions by this Tribunal. All of the matters are being heard together.

2.In an earlier interlocutory decision[1] I decided that the three documents and Dr Hinds’s application for amendment were amenable to the processes of the Act. I also directed Dr Hinds to submit a complete set of proposed amendments, with details of the textual changes she proposes. Dr Hinds has prepared and submitted a set of proposed amendments in response to that direction.

[1] Re Hinds and Australian National University [2011] AATA 261.

3.At a hearing on 29 August 2011 a number of issues relating to the Final Report to the ARC were settled between the parties. One further proposed amendment remains outstanding regarding that document. I also heard jurisdictional argument relating to the proposed amendments to the other two documents.

Issues

4.The issues before me at this stage are:

(a)whether all the proposed amendments are to information which is a record of Dr Hinds’s personal information; and

(b)whether there are other reasons for excluding any of Dr Hinds’s proposed amendments.

The statutory context

5.Dr Hinds’s applications were made before major amendments to the FOI Act came into force on 1 November 2010. It is therefore the Act as it was before those amendments that applies. Part V of the Act provides for people to seek amendment or annotation of personal information held by government entities and other bodies covered by the Act (of which the ANU is one). ‘Personal information’ is defined in section 4 of the Act as ‘information or an opinion ... whether true or not, ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. Section 48 provides for a person to apply to amend records of personal information held by an agency under specified circumstances, and section 49 sets out how an application for amendment may be made, including what an application must specify.

6.Section 50 sets out the process to be followed by an agency in responding to an application:

(1)  Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

(a)  the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister; and

(b)  the information is incomplete, incorrect, out of date or misleading; and

(c)  the information has been used, is being used or is available for use by the agency or the Minister for an administrative purpose;

the agency or Minister may amend the record of information.

(2)  The agency or Minister may make the amendment:

(a)  by altering the document or the official document concerned to make the information complete, correct, up to date or not misleading; or

(b)  by adding to that document or official document a note:

(i)  specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and

(ii)  in a case where the agency or Minister is satisfied that the information is out of date - setting out such information as is required to bring the information up to date.

(3)  To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.

7.Section 51 provides for annotation of records where an agency declines to amend those records; section 51A sets out the requirements for an application to annotate records; and section 51B provides for annotation of records in response to an application under section 51A. Section 51E allows an agency to provide its own comments on such annotations.

8.Section 55(6)(c) provides that where this Tribunal reviews a decision refusing to amend a record of personal information, it must not require an amendment to a record of opinion unless that opinion was based on a mistake of fact or ‘the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion’.

The applicant’s contentions

9.At issue is whether all of Dr Hinds’s proposed amendments meet the definition of ‘personal information’ in the Act, and are therefore within the scope of the amendment process. Dr Hinds contends that all of her proposed amendments fall within the scheme of the Act, and all should be considered on their merits at a hearing.

The respondent’s contentions

10.The ANU puts forward several arguments why some if not all of Dr Hinds’s proposed amendments should be excluded from consideration at this stage.

11.In the first place the ANU notes that the documents have been prepared for other purposes by their authors and express their authors’ views for those purposes. The report to the ARC was Professor Grabosky’s account to that organisation of how the funding supplied for the project had been expended. In the report he was obliged to respond to a number of specific questions and provide particular information, and his response was prepared to meet those needs. Similarly, the two emails were prepared by their authors for the purposes of the grievance process within ANU and represented the recollections and opinions of the authors in that context. The ANU argues that it would be entirely inappropriate for the Tribunal to make amendments to these documents: to do so would be to put recollections and opinions in the mouths of the authors, to purport to give them recollections and opinions that they did not hold.

12.Second, the ANU argued at the preliminary hearing, and repeated in a more cursory fashion at the hearing on 29 August 2011, that some of Dr Hinds’s proposed amendments are excluded because they are an attempt to re-agitate issues that were addressed in the grievance process. This is the issue considered in particular in Crewdson v Central Sydney Area Health Service where the court, applying NSW legislation with provisions similar to those of the Commonwealth’s FOI Act, held that:

The appellant’s attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them.[2]

[2] [2002] NSWCA 345 at [24].

13.Third, the ANU continues to press its view that the language used by Dr Hinds in her proposed amendments is defamatory, and that amendments which use such language should be excluded. The ANU also raised the question by what standard or definition the correctness of the record is to be decided; in particular, what understandings of terms such as ‘plagiarism’ or ‘bullying’ are to be adopted.

Consideration

Is the proposed amendment to the Final Report to the ARC within the scope of section 50 of the FOI Act?

14.Section 50 of the FOI Act is the source of the agency’s discretion (or, as here, the Tribunal’s discretion) to make an amendment to a record of personal information. The section establishes a series of tests, each of which must be met in order for the discretion to be enlivened. If I am to make an amendment, I must be satisfied that:

(a)the record of personal information to which the amendment is sought is contained in a document of the agency; and

(b)the information is incomplete, incorrect, misleading or out of date; and

(c)the information has been used, is being used, or is available for use by the agency for an administrative purpose.

15.Of these three tests, that established by paragraph (b) above depends on the evidence adduced by the parties. The tests in paragraphs (a) and (c), on the other hand, can be applied directly to the applicant’s proposals to amend the documents: if the application does not meet both of these two tests it must fail.

16.In this case it is not contested that the documents to which amendment is sought are documents of the ANU, and that they have been used for an administrative purpose. In my earlier interlocutory decision I determined that the documents contained personal information about Dr Hinds. I must also, however, be satisfied that the particular information to which amendment is sought is a record of Dr Hinds’s personal Information as defined in section 4 of the Act.

17.Following concessions made by the respondent, there is one remaining application to amend the ARC Report. The text to which amendment is sought is the response to a question of the ARC: ‘Did anything affect the satisfactory and timely progress or completion of the Project?’ The response was as follows:

The outcomes of the Joint Commonwealth/ACT Government study into policing in the ACT in 2006 had the most significant impact over the course of the project. The Joint Study defined a requirement for the Industry Partner organisation to work directly with government agencies to develop a three year strategic policing plan for the ACT. This requirement conflicted with the original objectives of this project. The project team, by agreement with the industry partner organisation, nevertheless adapted to these development [sic] by executing a significant program of survey research and by undertaking specific analyses of police-youth relations, police communications, and determinants of police legitimacy generally. The outcomes of these research activities have directly, and significantly, contributed to the development of the joint three-year strategic policing plan by the Industry Partner organisation and government. The strategic plan will be released in the near future.

18.Dr Hinds argues that in this text:

(a)the reference to ‘the project team’ is a reference to a group of which she was a member; and

(b)either she could be identified as a member, or she was known to be a member of that group; and

(c)therefore the reference is to personal information as defined in section 4 of the Act.

19.Section 4 requires that the identity of the person is either apparent from a record, or ‘can reasonably be ascertained, from the information or opinion’. Dr Hinds’s application does not meet the first of those requirements. Her name or other direct means of identification is not specified in the text in question. Even if among those familiar with the project her membership of the project team was known, that does not meet the test that her identity was ‘apparent’ from the information.

20.Dr Hinds argues that a reader could infer her membership of the project team from the list of published reports elsewhere in the document. The FOI Act is beneficial and remedial legislation and should be construed generously but that does not extend to a reading which is strained, unreasonable, unnatural or unduly stretched.[3] Section 50 clearly distinguishes between the document within which amendment is sought and the ‘information or opinion’, within that document, which an applicant seeks to amend. The implication is that the ‘information or opinion’ is specific material or content within the document.

[3] IW v City of Perth (1996) 191 CLR 1 (Brennan CJ and McHugh J, at 12; Kirby J at 58); Waters v Public Transport Corporation (1991) 173 CLR 349 (Brennan J at 372, Dawson and Toohey JJ at 394).

21.In the context of my earlier interlocutory decision on this matter I accepted that where there was a list of academic papers, of which in some cases Dr Hinds was listed as an author, and in others in her contention had been omitted as author, the entire list constituted personal information for the purposes of the Act, and she could seek to insert her name where it was omitted. I reasoned that, given the beneficial nature of the legislation, the ‘information or opinion’ to which amendment was sought ought to extend beyond any particular citation where Dr Hinds’s name had been omitted, to the entire list of papers in that section of the report. That reasoning does not extend, however, to the matter now under consideration. The possibility that a person could, by noting the list of authors of publications and reports elsewhere in the ARC Report, deduce that Dr Hinds was a member of the Project Team does not establish that the information is ‘personal information’ as defined by section 4. The question is not whether the identity of the person can be ascertained from anywhere in the document, but rather from the information or opinion to which amendment is sought. In this case, Dr Hinds’s identity cannot be ascertained from the information or opinion. The text in question does not meet the definition in section 4, is not a record of Dr Hinds’s personal information, and cannot be amended by the process established by section 50. It is excluded from the scope of the amendment process.

Are all the proposed amendments to the Grabosky and Braithwaite emails within the scope of section 50 of the FOI Act?

22.The remainder of Dr Hinds’s proposed amendments relate to the two emails. Each was prepared in the context of the grievance process and in response to various issues raised by Dr Hinds in that process. For the most part, therefore, the emails focus closely on Dr Hinds, and there is little question that they constitute ‘personal information’ under the Act.

23.In each case Dr Hinds proposes a substantial number of amendments. For ease of reference I have numbered the proposed amendments: there are 38 proposed amendments to the Grabosky email, numbered G1-G38. There are 33 proposed amendments to the Braithwaite email, numbered B1-B33.

24.I accept that all of the proposed amendments to the Grabosky email relate to a record of personal information under the Act. Although in some cases the ‘information or opinion’ to which amendment is sought consists of a sentence or passage in which Dr Hinds’s name does not appear, it is clear from the context of the document at each point that these are isolated fragments of a text dealing solely with Dr Hinds and they meet the definition in section 4.

25.The Braithwaite email includes some more extended passages where Dr Hinds is not mentioned. The first of these, to which proposed amendment B9 relates, reads as follows:

Mention is made of Jenny Flemings [sic] CV on the RegNet website. It was a requirement of the RSSS review in 2006 that each staff member submit their CV and context statement for evaluation by a panel of reviewers. In RegNet we chose to make our materials for the review public and we placed them all on our website. This is an historical document – it is an account of how we presented ourselves to the review committee. It would be inappropriate to “tamper” with this after the event. With our move from RSSS to RSPAS, we unfortunately did not have an annual report for 2006. But we do have such a report for 2007. That report, soon to be completed, will replace the review materials – or at least the review materials will be less obvious, being catalogued under past reviews/reports.

26.The point of this paragraph is that there was some disagreement regarding the proper attribution of papers included in a  curriculum vitae (CV) on the website. Dr Hinds claimed that she had been denied recognition where it should have been accorded to her. On its face, the paragraph does not concern Dr Hinds, and there is an argument that therefore it falls outside the definition of personal information. Read in the context of those that precede and follow it, however, and taking into account the beneficial and remedial nature of the Act, I have concluded that the passage falls within the section 4 definition, as its connection to Dr Hinds can readily be arrived at. The proposed amendments are within the scheme of the Act.

27.A similar issue arises in respect of proposed amendments B24, B25 and B26. Once again the two paragraphs to which amendment is sought concern Professor Fleming and do not mention Dr Hinds directly. Nevertheless, and for similar reasons to those advanced in the previous paragraph, I have concluded that the proposed amendments are within the scheme of the Act.

Should any or all of the proposed amendments be excluded for other reasons?

28.I do not agree with the ANU that for various reasons other proposed amendments should be excluded at this stage of the process. The argument that the emails are recollections and opinions of the authors is factually correct and the argument that the proposed amendments cannot sensibly replace the authors’ recollections and opinions with others that they do not hold is well taken. That does not lead, however, to the proposals for amendment being excluded. Section 50(2) allows for this kind of problem by providing alternative responses if the decision-maker is satisfied that a record of an applicant’s personal information meets the tests set by section 50(1). While section 50(2)(a) allows amendment of a text, section 50(2)(b) provides that the decision-maker, once the discretion is enlivened, may instead amend the information or opinion by adding a note to the record specifying how the information is incomplete, incorrect or misleading. Section 50(3) encourages the amendment process to avoid obscuring the original record to which an amendment is made. These provisions effectively provide a means of escaping the problem that the ANU has identified.

29.The ANU’s argument that some of Dr Hinds’s proposed amendments will prove to be attempts to reopen her grievance process may prove correct, but that does not provide a basis for exclusion of her application at this stage. Provided the tests set by section 50(1) are passed – and that requires that I be satisfied that the record of her personal information is misleading, incorrect, inaccurate or out of date – then the discretion to make an amendment is enlivened. At that stage, the exercise of the discretion may be conditioned by various matters – for example, the way in which, and the extent to which, the material is incorrect, incomplete, misleading or out of date might influence whether or how the discretion should be exercised. Conceivably, that an applicant is attempting to challenge the validity of some recorded decision rather than the accuracy of the text might also be such a matter. But that cannot be considered until the evidence has been adduced and weighed.

30.A similar conclusion attaches to the suggestion by the ANU that the proposed amendments are defamatory. It is certainly the case that some of the material Dr Hinds has put forward, including some of her proposed amendments, is intemperately worded. Dr Hinds has attempted to justify this approach by arguing that in drafting her proposals for amendment she had intentionally tried to capture not only that a statement was factually wrong, but that it had been a deliberate misstatement.

31.These matters cannot be decided at this stage. The discretion to amend the record will be enlivened if evidence is brought that satisfies me that the record is misleading, out of date, incorrect or incomplete. At that point I can then consider whether the amendments proposed by the applicant ought to be drawn on in an amendment process. Under section 50(2) I am under no particular encouragement to rely on an applicant’s proposed amendments. Section 50(2)(a) allows me to alter the document to make it complete, correct, up to date or not misleading; section 50(2)(b) to add a note specifying the way in which the record is wrong. Those are the only options the FOI Act provides, and neither implies that an applicant’s proposed amendments need be relied on. I therefore do not have to make use of Dr Hinds’s alternative text, and I am unlikely to do so if it overstates the case.

32.It is perhaps worth noting that the aim of this part of the FOI Act is to enable a person to ensure that official records about that person are accurate. To the extent that Dr Hinds’s proposals go to the motivation of the authors of the documents, I will need to be satisfied not only that the record is wrong, but also that the matters of motivation affect the correctness of the record about her if I am to draw on them in any amendment process.

33.Whether the proposed amendments are so overstated as to be defamatory cannot be decided at this stage, and cannot be used as a basis for exclusion. The amendments would not be defamatory if shown to be true; and before that can even be tested, I must be satisfied that the record about Dr Hinds is wrong. Evidence that the record is wrong may or may not show that Dr Hinds’s alternative is to be preferred. Naturally, no defamatory amendment can be made: the amendment process either corrects the record, or adds a note about its inaccuracies. By neither process could a statement be entered into the record unless I was satisfied both of its truth, and that its addition would correct the record.

34.I note that it is not necessary to decide at this point what meaning is to be given to terms such as ‘plagiarism’ used by Dr Hinds in her proposed amendments. For the reasons given above I may not feel the need to have recourse to such terms even if I conclude that the record should be corrected. Should I need to do so, I envisage that the ANU’s policies on these matters and definitions of the relevant terms would be the starting point for their consideration, given that the events at the heart of this matter occurred at the ANU while Dr Hinds was employed there. I am happy to hear further argument on this issue should it arise.

Does any onus or burden lie on either of the parties?

35.It is as well at this stage to add a comment regarding onus and burden of proof in this matter. Generally in matters before the Tribunal there is no onus placed on either party to establish the facts on which a decision rests: McDonald v Director-General of Social Security;[4] confirmed in Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal.[5]The Tribunal is an administrative decision-maker, making in each case a fresh decision, as provided in section 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Under section 33(1)(c) of the AAT Act the Tribunal may inform itself by any means it thinks appropriate. Thus in a hearing the Tribunal may inform itself through evidence advanced by the parties or by its own inquiries. The requirement in section 50(1) of the FOI Act that the decision-maker be ‘satisfied’ that the record is misleading, incorrect, incomplete or out of date refers to the state of mind of the decision-maker, and not to a requirement that one of the parties must bear the burden of producing that state of mind.

[4] (1984) 1 FCR 354, at 357 (Woodward J).

[5] (1985) 8 FCR 291 at 297.

36.In McDonald v Director-General of Social Security Woodward J observed that an onus could lie on one party or another in Tribunal proceedings if the legislation provides for it.[6] The FOI Act contains such a provision in section 61. Section 61(1), the relevant section for present circumstances, reads as follows:

...in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

[6] (1984) 1 FCR 354, at 357 (Woodward J).

37.In Re Bashari and Minister for Immigration and Multicultural Affairs[7] Deputy President Forgie analysed the application of this provision and concluded that it applied to requests for access to information, but not to applications to amend records of personal information (both of which are covered by Part VI of the Act).[8] That construction turned on the use of ‘request’, which is defined in section 4 to mean a request for access to a document. The logic is that when an applicant applies to access a document it is the agency (or Minister) holding the document which has all the information, and the applicant would not or might not have the information to make a case for review of the decision.

[7] [2006] AATA 839.

[8] Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839 at [42].

38.Deputy President Forgie’s analysis has been followed in other cases, and in Re Loqmani and Minister for Immigration and Citizenship[9] Senior Member Hastwell noted that the Explanatory Memorandum for section 61 gave precisely the justification for the inclusion of section 61 that Deputy President Forgie had independently derived.[10]

[9] [2008] AATA 74.

[10] Re Loqmani and Minister for Immigration and Citizenship [2008] AATA 74 at [44] and [46].

39.In the 2010 amendments to the Act section 61 was recast. It now explicitly provides that the onus lies on the agency or Minister to establish that a decision was justified or that the Tribunal should give a decision adverse to the applicant in respect of both decisions regarding requests for access to documents and applications to amend records of personal information. In the current matter, the question arises whether the amendment in 2010 has any influence on how the unamended provision should be construed.

40.In Hayes v Cable[11] the Supreme Court of NSW addressed this question of construction in the  following terms:

While as a general rule the words of subsequent Acts are not to be relied on as an aid to the construction of words in prior Acts, none the less subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act if it is ambiguous.[12]

[11] (1961) 62 SR (NSW) 1.

[12] Ibid at 9 (Evatt CJ, Herron and Collins JJ).

41.The question was considered by five members of the House of Lords in Ormond Investment Co Ltd v Betts[13] but there was little agreement among the five separate judgments. What may be gleaned from the case is that where a provision in a statute is ambiguous, with more than one construction clearly available on its face, a subsequent enactment may shed some light on the construction to be preferred; but that suggestion is offered by the justices that favoured it in distinctly guarded terms.

[13] (1928) AC 143.

42.In the present instance, resort to that canon of construction is unnecessary. In the first place, the meaning of the unamended section 61 as analysed by Deputy President Forgie and confirmed by the Explanatory Memorandum entry regarding the provision is clear and unambiguous. Second, it appears that the amendments in 2010 represented not a clarification of the existing provision but a policy change: the Explanatory Memorandum for the amending Bill[14] makes it clear that the changes to section 61 relate at least in part to the introduction of the provisions regarding the Information Commissioner.

[14] Explanatory Memorandum and Supplementary Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) item 42.

43.My conclusion is that section 61 throws no onus on either party in this matter, although I am willing to hear argument on that point if the parties wish. Further, the requirement in section 55(6)(c) that the Tribunal must not amend an opinion unless satisfied that the opinion was not properly founded does not impose an onus on either party to establish the case: the provision establishes the state of mind that the decision-maker must reach before making an amendment, but not that either party bears the onus of achieving that outcome.

44.A number of the statements in the two emails that remain to be considered are clearly the opinions of the authors. Under section 55(6)(c) the Tribunal cannot amend an opinion unless satisfied that either the opinion was based on a mistake of fact, or else the author of the opinion was biased, unqualified, or acted improperly in making the enquiries on which the opinion was based. Following the High Court’s decision in Briginshaw v Briginshaw,[15] the weight of evidence that must be adduced to establish a matter depends on the seriousness of the matter. I note that an assertion that the author of either email was biased, unqualified or acted improperly, if accepted, would have significant consequences for the people concerned. Other findings in the matter may equally carry serious implications for the people involved. I will need persuasive evidence on such issues if I am to make findings that are likely to have serious impacts on people’s careers and reputations.

[15] (1938) 60 CLR 336, 360 (Dixon J).

Decision

45.The proposed amendment to the Final Report to the ARC is outside the scope of section 50 of the FOI Act. Other proposed amendments fall within the scope of the Act. The ANU’s motions to exclude amendments from consideration are denied.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member.

Signed:         ....................[sgd]............................................................
  H. Choi, Associate

Date of Hearing  29 August 2011
Date of Decision                   1 November 2011
Representative for the Applicant              Self-represented
Counsel for the Respondent                     Mr A. Anforth

Solicitor for the Respondent  Mr T. Neal, Australian National University