Humane Society v National Parks and Wildlife Service - [2000] NSWADT 133

No judgment structure available for this case.

CITATION: Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133

DIVISION: General Division

PARTIES:
APPLICANT
Humane Society International Inc.
FIRST RESPONDENT
National Parks & Wildlife Service
SECOND RESPONDENT
John Bicknell
THIRD RESPONDENT
NSW Farmers' Association

FILE NUMBER: 993068

HEARING DATES: 06/04/2000

SUBMISSIONS CLOSED: 06/13/2000

DATE OF DECISION:
09/19/2000

BEFORE: Robinson MA - Judicial Member

APPLICATION: access to documents - Freedom of Information Act - access to documents

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Re Stewart and Department of Transport (1993) 1 QAR 227
Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606
Queensland v Albietz [1996]1 Qd R 215
Re Simons and Victorian Egg Marketing Board (1985) 1 VAR 54
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43
Southern Cross Commodities Pty Ltd (in liq) v Crinis [1984] VR 697
Tunchon v Commissioner of Police [2000] NSWADT 73
News Corporation limited v National Companies and Securities Commission (1984) 1 FCR 64
Dawson v Commissioner Health Care Complaints [1999] NSWADT 57
Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604
Re Shewcroft and Australian Broadcasting Tribunal (1985) 2 AAR 496
Re Rogers Matheson Clark and Australian National Parks and Wildlife Service (1991) 22 ALD 706

REPRESENTATION:
APPLICANT
L M Byrne, barrister
FIRST RESPONDENT
S D Kalfas, barrister
SECOND RESPONDENT
In person
THIRD RESPONDENT
A Heidrich

ORDERS: 1. The reviewable decision is set aside and access to the addresses of the properties to which the licences or licence applications relate be given to the applicant; 2. The exhibits in these proceedings be made available for return or returned to the appropriate parties after the expiration of 28 days from today.

1 This is an application from a refusal of an agency to provide access to documents following a request of the respondent made in a written application under section 17 of the Freedom of Information Act 1989 (NSW) ("the FOI Act"). Section 16 of the FOI Act provides for a legally enforceable right to a person to be given access to an agency's documents in accordance with the Act. The first respondent is such an agency.

2 The disputed material involves the identification of a number of addresses to which licences issued by the first respondent relate. The said licences permitted the licence holders to cull flying foxes in New South Wales in order to seek to protect their respective commercial orchards. The matter raises issues as to:

The Proceedings

3 On 7 December 1998 the applicant lodged an FOI request for access to the first respondent’s documents, inter alia, in respect of applications for, and licences issued, by the agency pursuant to sections 120 or 121 of the National Parks and Wildlife Act 1974 (“the NPW Act”) to harm the following species:

4 The FOI application related generally only to those applications and licences relating to October and November 1998. The licences expire after a period of one year. Accordingly, any licences so issued lapsed before the hearing of the matter before the Tribunal.

5 By letter dated 19 February 1999 the first respondent granted access in part to the documents. However, the names and addresses and locality details of the licences were deleted. The name and address of the property to which the said licences relate is provided for specifically on the face of the licence application form. The sole reason given by the first respondent under the FOI Act for the original refusal to provide full access to the documents was that the information related to personal affairs. An internal review of the determination upheld the original decision. The applicant filed an appeal with the Tribunal against the first respondent’s determination.

6 By an amended application filed on 2 September 1999 the applicant made it clear that it only now sought the licence localities and was not interested in the names and addresses of the licensees. In reply to the applicant’s initial application the first respondent also now claims reliance on the exemption to disclosure provided by clause17(l)(c).

7 On 21 December 1999, the hearing of the application before the Tribunal was adjourned partly for the reason that the first respondent had not notified all the persons (licensees and licence applicants) potentially affected by the first respondent’s decision and the review of it by the Tribunal. The reviewable decision was then remitted by me to the first respondent for reconsideration pursuant to section 65(1) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

8 On 9 March 2000 the first respondent remade its decision, having appropriately communicated with the third parties. Access to the disputed documents was again refused pursuant to the personal and business affairs exemptions of the FOI Act.

9 Upon the application of the second respondent, a commercial orchardist from Lakelands, New South Wales, and the third respondent, an incorporated association of New South Wales’ farmers which includes some members who are apparently licence holders who are opposed to the release of the disputed documents, I directed that they each be joined as parties pursuant to section 67(4) of the ADT Act.

10 At the hearing before the Tribunal, a significant number of documents were tendered and received into evidence. Oral evidence was heard on 6 April 2000. Extensive and helpful written submissions were filed by the parties at and on a number of occasions after the hearing. The submissions closed on about 13 June 2000.

The Personal Affairs Exemption

11 Section 6(1) of the FOI Act provides:

Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).”

12 The exemption has been the subject of extensive judicial, Tribunal, external review and academic consideration in NSW and elsewhere in Australia. The provision in the FOI Act is similar to, but not quite the same as, the Victorian and Commonwealth legislation. Personal affairs was set out as section 41(1) of the Freedom of Information Act 1982 (Cth) ("Commonwealth FOI Act") in very similar terms to the NSW provision until its substantial amendment in 1991. Section 33(1) of the Freedom of Information Act 1982 (Vic) ("Victorian FOI Act") is in broadly similar terms to the NSW provision. The Queensland provision is section 44(1) of the Freedom of Information Act 1992 (Qld) which contains a public interest test. A good discussion of relevant differences generally between these provisions is contained in Re Stewart and Department of Transport (1993) 1 QAR 227, and Peter Bayne and Kim Rubenstein “The Concepts of ‘Information relating to Personal Affairs’ and ‘Personal Information’” (1994) 1 A J Admin L 226.

13 In Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (“Perrin’s Case”) Kirby P stated at 625B that “in its context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned”.

14 The determination of whether a name constitutes personal affairs is a question of fact depending on the particular circumstances of the case: Perrin’s case, per Clarke JA at 644B. In that case, Clarke JA took the view that ordinarily a person’s name would not constitute part of that person’s personal affairs (see also Mahoney JA at 638D; and, Queensland v Albietz [1996]1 Qd R 215 at 221.30, de Jersey J).

15 That names and addresses are capable of amounting to personal affairs was decided in Re Simons and Victorian Egg Marketing Board (1985) 1 VAR 54. In that case, it was held disclosure of the names and addresses of free-range egg producers would involve disclosure of information relating to personal affairs. However, it was decided there to release the documents for the reason that disclosure to the applicant would represent a minimal invasion of privacy and would not be unreasonable having regard to the circumstances. Further, it was considered relevant in that case that the applicant had made a statement to the Victorian AAT that the names and addresses would not be published. In this Tribunal, it was accepted in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 at [44] that the names and addresses of objectors to a development application to improve a caravan park constituted the personal affairs of the objectors within the meaning of clause 6 of Schedule 1 of the FOI Act. The documents were witheld by the Tribunal in that case primarily because the development application had been resolved by the review authority and the Tribunal regarded the details were no longer relevantly required by the applicant developer. She merely wanted access to the documents to satisfy her own curiosity.

16 The applicant in these proceedings does not seek the names and addresses of the licensees. However, the respondent contends, and which I accept, that in relation to these particular licence holders, the address to which the licence relates do in fact correspond with the actual home address of the licence applicant. In any event, I accept that once the licence address are disclosed, it would be a simple matter for a committed applicant to then obtain some ownership details relating to the property.

17 The first respondent, through its counsel, submitted that the licence addresses plainly constituted “personal affairs”. It was submitted:

In the same way, applications made by persons for such licences to be issued concerns the personal affairs of the applicants in that it reveals the location at which those persons live and/or propose to conduct the licensed activity and the fact that they are seeking to conduct the licensed activity.

Of the 56 licences issued under Section 121 of the National Parks and Wildlife Act it appears that the applicants/licencees reside at the property to which the licence relates in at least 50 out of between 56 and 62 cases (Exhibit 2 - Mr Barrack’s affidavit 28 October, 1999 paragraphs 5,6 and 12). Of the licences issued under Section 120 of the National Parks and Wildlife Act, which licences, unlike Section 121 licences, are not issued specific to a property, only 11 out 32 licences issued specify the information sought by the Applicant (Mr Barrack 28 October,1999 paragraphs 5 and 10). Each of the licences issued under Section 121 of the Act was issued to an individual (Mr Barrack 28 October, 1999, paragraph 13). Given the different nature of the two types of licence, there is overlap between Section 120 and 121 licences so that some individuals will hold both licences.”

18 I do not accept that it a straightforward matter that one should in all cases conclude that the address of the licence applicants and licence holders generally be said to constitute the “personal affairs” of third parties under the FOI Act. It may be that many of the older Victorian and Commonwealth cases concerning names, addresses and telephone numbers as constituting personal affairs now require a more considered approach in the light of later court decisions (see, for example, the discussion and the cases cited in Re Stewart and Department of Transport (1993) 1 QAR 227 at 259-261, where the issue is referred to as a “recurring grey area issue” in FOI cases). In this regard, for example, I note that there is no special privilege in client legal privilege terms concerning a lawyer’s client’s name and address (see, for example, Southern Cross Commodities Pty Ltd (in liq) v Crinis [1984] VR 697).

19 I consider that the mere address of a place to which a statutory licence relates, without more, does not necessarily constitute a person’s personal affairs under the FOI Act.

20 In the present case, I am dealing with specific licences to cull flying foxes. The applicants are mainly commercial orchardists and conduct their farming activities in rural New South Wales. Given that the first respondent’s evidence revealed that most of the applicants actually do live on the property to which their licences relate, and that therefore, any release of the information would also effectively mean, in practical terms, the release of the home address of the individual licence applicants and holders, I am satisfied that the said licence addresses do constitute personal affairs within the meaning of clause 6 of Schedule 1 of the FOI Act.

Would Any Release Constitute Unreasonable Disclosure?

21 The next issue to be addressed is whether or not the release to the applicant of the licence addresses would constitute unreasonable disclosure of information. This involves a consideration of all of the circumstances of the case and a balancing of relevant interests. In many respects, it involves the Tribunal in undertaking a process similar to the assessment of the “public interest” that applies in a number of other areas in the FOI Act. However, to some extent, the FOI Act has directed that, where the exercise of discretions conferred by the FOI Act are involved, they should be exercised as far as possible so as to facilitate the giving of access – section 5(3)(b).

22 A proper consideration of “reasonableness” in relation to the personal affairs exemption does not involve me in any “leaning approach” towards openness as against secrecy. Such an approach might be the correct approach in relation to other exemptions or the FOI Act more generally (as was proposed by Kirby P in Perrin’s Case at 627, and adopted by the Tribunal in relation to the personal affairs exemption in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 at [34]. In relation to the “internal working documents” exemption in clause 9(1)(b) of Schedule 1 of the FOI Act, the Tribunal held the leaning approach did not apply, see, Tunchon v Commissioner of Police [2000] NSWADT 73 at [18]-[19]). However, I consider the leaning approach to be an unsatisfactory and possibly distracting approach here. The principle of openness, which is the very reason for the FOI Act’s existence, is required by the Act to be subject to the specific exemption set out in clause 6(1) in appropriate cases.

23 The personal affairs exemption itself contains the necessary test so as to enable a decision to be made on the issue. The test is “reasonableness”. It must mean reasonableness in all of the circumstances.

24 In the context of the Victorian FOI Act personal affairs provision, the Victorian AAT stated in Re Simons and Victorian Egg Marketing Board (1985) 1 VAR 54 at 55:

“Clearly, the section seeks to balance the competing interests of privacy with the stated object of the Act itself, which is to create a general right of access to information…”

25 The Tribunal there considered that no leaning approach was required, applying (at page 56) the then Commonwealth position set out in News Corporation limited v National Companies and Securities Commission (1984) 1 FCR 64 at 66.

The Applicant’s Motive

26 Before considering the evidence further and the factors going to reasonableness, the question arises as to whether the motive or intention of an applicant in making and pursuing the FOI application is relevant to the determination of the reasonableness issue, and if so, in what regard is it relevant.

27 In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43, the motive of the applicant was effectively the determinative issue for the Tribunal. There, the Tribunal considered that while the development application remained unresolved, the applicant developer had a vital interest in the full disclosure of the names and addresses of the objectors and the Tribunal would have had “no hesitation” in then releasing the personal information (at [56]). However, once the development application was finally determined, the applicant no longer held a need for the information, other than to satisfy her curiosity (at [57]). The Tribunal dealt with the legal question in the following terms, at [53]:

Re Mann and Australian Taxation Office

Colakovski

Re Green

28 Similarly, in Gilling -v- General Manager, Hawkesbury Shire Council [1999] NSWADT 94 at [36], the Tribunal, differently constituted, released to the applicant the name and address of a complainant to the Council on a matter not connected with the development application process, citing the legitimate or reasonable purpose of the applicant in viewing the complaint and to better respond to it.

29 In Dawson v Commissioner Health Care Complaints [1999] NSWADT 57, the Tribunal granted access to the applicant of the complete list of names of psychiatrists on the HCCC Peer Review Panel, including those practitioners who had since resigned.

30 In these proceedings, the parties appear to me to accept that the FOI applicant’s motive here is relevant to the question of reasonableness. I agree. Indeed, in many cases it is considered the primary determinative issue. For example, in Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604, the Victorian AAT considered that it would not release the names and addresses of the registered owners of prestige motor vehicles to an applicant whose sole stated purpose was to identify potential customers. In that case, the Tribunal said, at 606-607:

including the purpose

31 At the federal level, the issue of the relevance of the applicant’s motive generally in the Commonwealth FOI Act is not closed (see, for example, Re Shewcroft and Australian Broadcasting Tribunal (1985) 2 AAR 496 at 500-501). However, in a number of federal cases, the applicant’s motive has been accorded significant weight. For example, in Re Rogers Matheson Clark and Australian National Parks and Wildlife Service (1991) 22 ALD 706 at [24], the Commonwealth AAT refused the FOI applicant access to the information contained in relation to the export permit applications of those then exporting kangaroo products for the reason that the ultimate FOI applicant, Greenpeace, had an avowed aim to destroy the industry. That was a “business affairs” case (c.f.Queensland v Albietz [1996]1 Qd R 215 at 222.45).

The Evidence as to Motive

32 Extensive evidence was lead and a considerable amount of attention was given in the submissions by the parties on the question of the true motives and purpose of the applicant here.

33 In evidence before me, Julie Ann Hughes, policy consultant engaged by the applicant, and a worker in the animal welfare and conservation movement for about nine years, the applicant's history was set out. The applicant is an incorporated association established in Australia in 1994 which has an Australian membership of 13,000 people. It is primarily concerned with the conservation and improvement of wildlife and animal matters. It is affiliated with or part of the largest animal protection organisation in the world, the Humane Society International, based in Washington, which has a worldwide membership of 7 million people. The objectives of the applicant include promotion, protection and conservation of living things and wildlife and the welfare of animals, to further environmental education, to co-operate with the organisations and nations in an effort to prevent cruelty to animals and conservation of the environment and, to persuade governments to further the protection of animals and the environment.

34 The applicant is involved in several state and federal government advisory capacities in relation to the achievement of these objectives.

35 In relation to the present FOI application, Ms Hughes stated as follows:

On 13 November 1998, the moratorium imposed by [the first respondent] in November 1997 was lifted on the issue of licences under the National Parks and Wildlife Act 1974 (NSW) ("NPW Act") for bat culling to protect commercial orchards. It is the round of licences issued subsequent to that date that is the subject of the Freedom of Information request the subject of this appeal.”

36 She set out the current status of the species the subject of the licence applications. The Black Flying Fox is listed as a "vulnerable species" under the Threatened Species Conservation Act 1995(NSW). This means that the species is likely to become endangered unless the circumstances and factors threatening its survival or evolutionary development cease to operate. Its distribution is restricted to the north east corner New South Wales. The Grey Headed Flying Fox is listed as "vulnerable" in a report prepared for the Commonwealth environment Department, Environment Australia published in August 1999 styled "The Action Plan for Australian Bats", at page 31 that report. At page 89 of that report, the following is stated in relation to the Grey Headed Flying Fox:

"The need to develop non-lethal techniques to protect fruit crops from [this bat species] has been identified in this Action Plan. The use should be developed and implemented in conjunction with the fruit growing industry. Further research on effective exclusion techniques (such as netting) and use of non-lethal electric currents and olfactory deterrents are suggested approaches. Incentives for encouraging the use of non-lethal techniques may also need to be considered."

37 The applicant considers that licensed culling is a threat to the survival of flying fox populations and that the first respondent is not adequately assessing or monitoring the impact of licensed culling activities on flying fox species in New South Wales.

38 The applicant considers that a central register should be kept by the first respondent of licences issued by it under sections 120 to 121 of the NPW Act, in a similar fashion to the public register required to be kept for licences issued by the first respondent under section 104 of the Threatened Species Conservation Act 1995 (regarding licences to harm threatened species).

39 The applicant has a number of concerns regarding the licensing process and the little research they say that has been undertaken on the success of shooting as an appropriate control method to prevent crop damage. There are also a number of other concerns of the applicant which relate to a research paper annexed as JH2 to Ms Hughes’ affidavit. In particular, the applicant is concerned that since many fruit growers cannot identify the species of flying fox that were being shot at night, it would be impossible in some locations to ensure that the flying fox listed under the Threatened Species Conservation Act 1995 which are not included on the licence are not accidentally culled.

40 It appears that the primary uses the applicant intends to make of the material if it is released is for scientific purposes and for the examination of horticultural practices. Much evidence was given by Ms Hughes in relation to the scientific purposes. In her affidavit, she said:

“[The applicant] would like to employ consultants with expertise in relevant scientific and ecological areas to assess the impact on the three flying fox species from the information received under the Freedom of Information application. For the purposes of accurate scientific assessment, it is necessary to be able to locate with precision the locations where culling is licensed to take place. Knowing the location of licensed culling of flying foxes will ensure that report commissioned are worthwhile. Factors influencing the culling factors may be location specific. The impacts of flying fox communities will also be location specific.”

41 As to the examination of horticultural practices, Ms Hughes stated:

“Another way that the information sought would be useful is in the examination of horticultural practices. With the licence locations disclosed, one would be able to build up a detailed map of the relevant areas showing locations where licensed shooting takes place, locations of properties with exclusion netting or other prevention devices, flying fox travelling corridors, flying fox habitat and other food sources. To the best of my knowledge, the inter-relationship between these factors has not been explored before.”

42 Significantly, I am satisfied that, as Ms Hughes asserts, if the disputed information is released to the applicant the applicant does not intend to mount a public environment campaign against individual licence holders or approach individual licence holders in relation to their individual activities. However, it is possible the licencees could be asked to participate in a survey by the applicant in the future, if the information is released (Transcript, pages 49-50).

43 In her oral evidence before the Tribunal, Ms Hughes further noted that the applicant has also been undertaking work under contract for the first respondent in listing species that have conservation value and need to be conserved (Transcript page 26/27).

44 In cross-examination by the first respondent’s representative, Ms Hughes conceded that the parameters of the applicant’s proposed research had not been worked out prior to the making of the FOI application as the parameters will depend on the quality of the data so discovered (Transcript page 32). She contended that, notwithstanding the first respondent had in fact provided most of the information requested under the original FOI application, the applicant could only analyse it and formulate “broadbrush generalisations” and in “clusters” and it was insufficient information to take the research any further (Transcript, page 34). The address details are needed to build up a detailed map of the relevant areas for research purposes (ibid, pages 37 & 51).

45 In cross-examination by the second respondent, Ms Hughes answered the expressed perceptions or concerns of the orchardists that the applicant was “trying to organise a private environmental police force which may incite extremist groups to organise vigilante groups” in the following terms:

“We really didn’t set out to do that. We have never held protests. We don’t see that haranging stone fruit growers is going to do anything productive. We were attempting to do something productive and we were attempting to use the avenues available to us through the FOI Act and through the licencing system and every best way we knew how to get the information to do our research.”

46 Prior to the hearing, and as a proposed mechanism of settling the matter, the applicant was prepared to execute a confidentiality deed in relation the limited release of the disputed information. The affidavit of Mr Marc Arthur Allas, a solicitor for the applicant, sets out the applicant’s relevant correspondence here. The draft confidentiality deed proposed by the first respondent was considered by the applicant to be unacceptable as, inter alia, the disputed information could not be viewed by the applicant at all, but was to be delivered direct to an agency approved consultant for research purposes.

47 The applicant also relied on the evidence of Dr Leslie Selwyn Hall, an internationally recognised expert on Australian bats. He is a Senior Lecturer in the Department of Veterinary Pathology and Anatomy at the University of Queensland. He has been involved in research on Australian bats for 35 years. His expertise in this regard was accepted by the parties.

48 In his affidavit evidence, inter alia, he set out some detailed background concerning the flying fox species in these proceedings, food shortages and shooting of bats, local colonies and migration and the role of and need for the applicant to have the actual address of licence applicants in order for it to undertake the proposed research work described by Ms Hughes.

49 He said that the potential impacts of licenced shooting are “location specific” and that the addresses to which the licences relate are therefore required by the applicant. He further said:

“In my opinion, to arrest the decline in flying fox numbers it is important for flying fox management to consider a number of factors such as the interaction of flying fox habitat, natural food sources, flying corridors, other food sources such as orchards, the likely impact of culling activities, and the use of orchard protection devices such as netting. If the exercise proposed by [the applicant] is carried out using the precise locations of licence culling, a detailed map showing all these factors could be built up, which in my opinion would significantly improve the level of assessment possible on the impact of licencing on the flying fox species. In my opinion such improved assessment is necessary to arrest the significant decline in flying fox numbers caused by culling.”

50 In his oral evidence, and particularly in his cross examination, Dr Hall expanded on this aspect of his evidence considerably (especially at Transcript page 63 and 64). He said that he would much prefer the growers to actively assist any scientific research conducted into bat culling in NSW and that, even if they did not co-operate or wish to be approached, the knowledge of their licence addresses would have some merit for research purposes. The research would be gathering information and would be “going ahead” (Transcript page 65) and the researchers could then start on some predictive modelling (ibid, page 66).

51 On all this evidence, I am satisfied that the applicant has a good motive for seeking the disputed information here. I am further satisfied that there is some modest scientific research utility for the applicant to seek to achieve its purposes. The disputed information does not contain all that the applicant needs to know to achieve its ultimate goals, but it is a start from which further research may continue. I accept that the applicant regards this research as both desirable and necessary.

The Respondent’s Objections to the Release of the Information

52 In the evidence and submissions of the respondents, the reasons for the objections of the respondents and a number of other licence holders were set out. The objections include:- general claims or pleas for privacy and confidentiality in relation to names, addresses and location of affected properties; suspicion of additional motives of the applicant; assertions of adverse affectation on business affairs (without more); fear of “greenies” turning up at their properties and concern for their safety and the safety and security of their property; concerns for the genuineness of the proposed scientific research by the applicant and of any benefits for orchardists; concerns that the research might not be necessary; deep scepticism at the motives of the applicant; assertions that the flying fox was not in any danger and that its numbers were increasing and that the issue is an emotive one and the applicant could not keep the information secure to it and its consultants only.

53 Of all the persons potentially affected by this FOI application and these proceedings and who were each given notice of it, which number about 102 applicants for the sections 120 or 121 licences, only one sought to intervene personally in these proceedings. No convincing evidence was tendered that pointed to any problem in the specific applicant here receiving the disputed information.

54 I am satisfied that the respondent’s and other orchardists’ expressed fears, suspicions and concerns are not well founded in relation to this application and this particular applicant. They have no real reason to fear. Any prospect that their fears will be in fact realised is, in my view, extremely remote. The disputed information is to be used for research related purposes only. The subject licences have long expired. The information is old and primarily useful for research purposes only.

55 In all the circumstances it is not unreasonable for the applicant to receive the disputed information for the stated research purpose.

56 While there is a plain public interest in maintaining an individual’s privacy in their dealings with executive government, that interest must also be balanced with the particular interests and motives of the applicant here and other considerations in the applicant’s favour. In addition to what I have already said above on the matter, the considerations I find relevant and persuasive in this regard include:

57 The first respondent’s principal argument in reply was that there was no practical utility in the applicant receiving the disputed information and that the applicant did not need the information as there were other ways of obtaining it. In my opinion, all that the applicant needed to establish here was that there was some credible scientific purpose in obtaining the information. I am satisfied it has proved that. That there might be other ways and means of achieving the same research objective is not to the point. The information is there in the hands of the agency. The applicant should not have to look any further or elsewhere for it in the circumstances of this particular case.

Business Affairs

58 The respondents also rely on the exemption in clause 7(1)(c) of the Schedule One of the FOI Act (documents affecting business affairs). That section relevantly provides:

Documents affecting business affairs

(1) A document is an exempt document: …

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

59 It was said by the first respondent that the disclosure of the disputed information would attract the clause because it identifies a location where their (the orchardists) business is carried out and an aspect of the manner in which they conduct that business or commercial enterprise.

60 There is very little satisfactory evidence going to this issue. Much was said by the parties by way of submissions on it. The evidence does not permit me, for example, to conclude that all the subject growers were in fact commercial operators. The fact that they each applied for and/or obtained a licence to cull bats does not permit me to conclude that they did in fact perform culling operations on their properties. Indeed, in one of the grower’s responses to the FOI application attached to the affidavit of Barton Reginald Barrack of the agency sworn 28 October 1999, the grower obtained a licence but never used it.

61 In any proceedings concerning a determination under the FOI Act, the agency bears the relevant onus of proof or burden of establishing that the determination is justified – section 61 of the FOI Act.

62 In the present case, that onus has not been discharged in relation to this claimed exemption. The primary reasons for the growers’ stated fears of possible financial harm relate to broader issues of industry regulation more generally. Their fears of actual interference on their properties and consequent loss or damage are, as I have determined earlier in these reasons, not reasonably founded in the circumstances of this case.

63 The first respondent submitted that this case was the same as the position described in Re Rogers Matheson Clark and Australian National Parks and Wildlife Service (1991) 22 ALD 706. There, as I set out earlier in these reasons, the applicant had an avowed aim to destroy the industry. It is clearly distinguishable and of only limited assistance.

64 Accordingly, I find that while the disputed information may well constitute information of the kind referred to in clause 7(1)(c)(i) it not information that could reasonably be expected to have an unreasonable adverse effect on those business affairs or to prejudice the future supply of relevant information to an agency such as the first respondent.

FOI Release Subject to Conditions?

65 The first respondent submitted that, as an alternative, the Tribunal had the power pursuant to section 85 of the ADT Act to impose conditions as part of the determination of the FOI application. It was submitted that if the Tribunal were so minded, those conditions should be as were drafted by the first respondent and set out in Annexure J of Exhibit 2.

66 Section 85 of the ADT Act provides:

Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.”

67 The first respondent submitted that this provision, situated in Chapter 6, Part 2 of the ADT Act applies to the procedure of the Tribunal generally both in relation to original and reviewable decisions. The general powers of the Tribunal to deal with review of reviewable decisions is contained in Chapter 5, Part 3, Division 3 of the ADT Act, and, in particular, section 63 of the Act. Sub-section 63(2) of the Act provides that for the purposes of determining an application for a review of a reviewable decision:

“…the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

68 There is no Commonwealth AAT equivalent of section 85 of the ADT Act. A similar provision exists in section 130 of the Victorian Civil and Administrative Tribunal Act 1998 (VIC). However, I am not aware of any cases considering the application of the power to FOI cases.

69 The applicant submitted that the Tribunal had no power to impose conditions in determining FOI matters. It was submitted that the Tribunal did not possess independent powers or discretions of its own and it could not make a decision which the original decision-maker did not have the power to make.

70 In FOI matters, the Tribunal is exercising the administrator’s powers and discretions contained in sections 24 and 25 of the FOI Act relating to the refusal or provision of access to an agency’s documents. There is no provision in the FOI Act for the imposition of conditions on the release of an agency’s documents. Indeed, the right to be given access is described as a “legally enforceable right to be given access” in section 16 (1) of the FOI Act. As such, it is properly regarded as an unconditional right.

71 I think that the jurisdiction issue is also affected by Chapter 3 of the ADT Act – “Jurisdiction of the Tribunal”. Section 36 provides, inter alia, that the Tribunal may review reviewable decisions (as that expression is defined in section 8). Section 38 provides, inter alia, that the Tribunal has jurisdiction “under an enactment” to review a reviewable decision. In the context of the FOI Act, the “enactment” referred to in section 38 of the ADT Act is the FOI Act. Section 40 of the ADT Act provides:

When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).
(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.
(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.
(4) In this section:

“relevant enactment” means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or
(b) to review a reviewable decision,
or that otherwise deals with the jurisdiction of the Tribunal.”

72 On my reading of section 40, in relation to FOI review applications, the provisions of the ADT Act have effect subject to the express or implied contrary provision being made in sections 16, 24 and 25 of the FOI Act. Accordingly, section 85 of the ADT Act should be read down as not applying to FOI review applications in the Tribunal. To find otherwise would give to the Tribunal significantly greater power than that possessed by the original decision-makers and would run counter to the whole scheme of the FOI Act.

73 I therefore reject first respondent’s submission that conditions can be imposed on the grant of access by the Tribunal.

74 If I am wrong in this regard, I have considered the terms of the proposed draft conditions. In my view they are far too restrictive and weighted too heavily in favour of the agency. It ties the applicant to the agency and the approved scientific or research consultant for the foreseeable future and may well be difficult and problematic to manage. It unnecessarily restricts or prohibits the applicant access to the relevant information so that the proposed scientific research may be undertaken and maintained properly. In the circumstances of the case as I have set out above, the proposed conditions are plainly not necessary.

75 I determine:

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Citations

Humane Society v National Parks and Wildlife Service [2000] NSWADT 133

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CITATION:	Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133
DIVISION:	General Division
PARTIES:	APPLICANT Humane Society International Inc. FIRST RESPONDENT National Parks & Wildlife Service SECOND RESPONDENT John Bicknell THIRD RESPONDENT NSW Farmers' Association
FILE NUMBER:	993068
HEARING DATES:	06/04/2000
SUBMISSIONS CLOSED:	06/13/2000
DATE OF DECISION:	09/19/2000
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Re Stewart and Department of Transport (1993) 1 QAR 227 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Queensland v Albietz [1996]1 Qd R 215 Re Simons and Victorian Egg Marketing Board (1985) 1 VAR 54 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Southern Cross Commodities Pty Ltd (in liq) v Crinis [1984] VR 697 Tunchon v Commissioner of Police [2000] NSWADT 73 News Corporation limited v National Companies and Securities Commission (1984) 1 FCR 64 Dawson v Commissioner Health Care Complaints [1999] NSWADT 57 Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 Re Shewcroft and Australian Broadcasting Tribunal (1985) 2 AAR 496 Re Rogers Matheson Clark and Australian National Parks and Wildlife Service (1991) 22 ALD 706
REPRESENTATION:	APPLICANT L M Byrne, barrister FIRST RESPONDENT S D Kalfas, barrister SECOND RESPONDENT In person THIRD RESPONDENT A Heidrich
ORDERS:	1. The reviewable decision is set aside and access to the addresses of the properties to which the licences or licence applications relate be given to the applicant; 2. The exhibits in these proceedings be made available for return or returned to the appropriate parties after the expiration of 28 days from today.