Department of Agriculture and Rural Affairs v. Binnie
[1989] VR 836[1989] VR 836(Judgment by: Young CJ) Court:
Judges:
Young CJMarks J
Teague J
Judgment date: 9 December 1988
Judgment by:
Young CJ
I have had the advantage of reading the judgment prepare by Marks J in this appeal. I agree in its conclusion and substantially in the reasons assigned for that conclusion. There is little that I wish to add.
The appeal went to a single judge of the court pursuant to s52 of the Administrative Appeals Tribunal Act 1984. Subs(1) provides that a party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in that proceeding. Subs(5) defines the court's powers as follows:
- "(5)
- The Supreme Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision including, without limiting by implication the generality of the foregoing--
- (a)
- an order affirming, varying or setting aside the decision of the Tribunal; and
- (b)
- an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Supreme Court."
From the decision of the single judge the appeal comes to this court pursuant to s10(2) of the Supreme Court Act 1986.
The question of law which justifies the appeal is the proper interpretation of s31(1) of the Freedom of Information Act and in particular the proper interpretation of the phrase "reasonably likely". I agree with Marks J that the Administrative Appeals Tribunal and the learned judge were mistaken in the interpretation that they gave to the phrase. I further agree with his Honour in the meaning which he attributes to "reasonably likely". It is the qualifying adverb "reasonably" which requires that the word "likely" be given a meaning less definite than probable. "The difficulty is to state the degree of certainty which is required before it can be said that the document in question will be an exempt document for the purposes of the section. The application of the words to a given case will usually involve an exercise of judgment and not give rise to a question of law": see per Sheppard J in Attorney-General's Department v Cockcroft (1986) 64 ALR 97 , at 109.
Having answered the question of law the court has to consider which of the courses prescribed by s52(5) of the Administrative Appeals Tribunal Act it should follow. I agree with Marks J that in the circumstances the appropriate course is to substitute the order which the Administrative Appeals Tribunal ought to have made. I also agree that the decision of the tribunal dated 20 March 1987 should be varied as suggested and substantially for the reasons given.
The persons whose physical safety might be endangered might include persons other than the actual persons conducting the experiments, but it is, of course, only those persons "engaged in or in connexion with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law " (emphasis added) with whom s31(1)(e) of the Freedom of Information Act is concerned. The paragraph, however, goes beyond or may go beyond those who actually conduct the experiments. In the present case we have no information as to any persons, other than the experimenters, engaged in connection with the administration of the law or persons who have provided confidential information in relation to the enforcement or administration of the law whose physical safety might be endangered. It is not therefore possible to consider the position of any persons other than the experimenters.
It may, however, be observed that once the institutions in which experiments may be conducted were identified it would be reasonably likely that physical violence would be inflicted upon people in the vicinity of--possibly those entering or leaving--some institution. It is notorious that in these days those who consider it permissible to achieve their objects by the infliction of personal violence or by destroying or attempting to destroy public or private property often inflict violence and destroy property quite indiscriminately. In these circumstances, the topic experiments on animals being one which often generates high emotion reactions, it must be reasonably likely that persons other than those actually conducting the experiments will have their physical safety endangered. Whether any such persons could fall within the relevant description is a question which might receive attention on some other occasion.
I agree that the appeal should be allowed.