Freedom of Information Act 1982 s 22, 36, 40(1)(d)

Waterford and Department of Treasury (No2) [1984] AATA 67; (1984) 1 AAR 1

Murtagh and FCT [1984] AATA 249; (1984) 1 AAR 419)

Chapman and Minister for Aboriginal Affairs (1996) 43 ALD 139

Harris v ABC [1983] FCA 242; (1983) 50 ALR 551 and 567 and the Full Court [1984] FCA 8; (1984) 51 ALR 581

Cleary and Treasury [1993] AATA 248; (1993) 31 ALD 214

Corr and PM&C (1993) 35 ALD 1410

Department of Finance and Administration and Herald and Weekly Times [2000] AATA 506; (2000) 31 AAR 251);

Telstra and ACCC (2000) AATA 71)

Sankey v Whitlam (1978) 142 CLR 1, 21 ALR 505

Commonwealth v John Fairfax [1980] HCA 44; (1980) 147 CLR 39 at 52[1980] HCA 44; , 32 ALR 485

ASCIC and AFP (1986) 11 ALD N184

Tilmans Butcheries Pty Ltd v AMIE (1979) 27 ALR 367 at 382

Mann and ATO (1985) 7 ALD 698

Searle Australia Pty Ltd v PIAC and another (1992) 108 ALR 163

Re Bayliss (1997) 48 ALD 443

1. The applicant applied to the respondent for access to a final report by consultants in relation to a contract for "Consultancy services of market research and reporting on community views on a variety of aspects of the personal income tax system".

2. The respondent refused access to the report on the basis "that disclosure of the documents would be contrary to the public interest". The documents were said to be "exempt from disclosure in terms of section 36 of the Freedom of Information Act 1982" ("the Act").

3. The applicant sought internal review of the respondent's decision. On review the respondent affirmed the claim for exemption under section 36(1) of the Act and refused an edited version of the document giving effect to section 22 of the Act. On review the grounds of the claim under section 36(1) were expanded so as to claim, in effect, that the document was part of the deliberative processes of the Australian Taxation Office ("ATO") and the respondent because it is concerned with policy-making and decision-making processes that relate to the administration of the taxation laws by the respondent (and the ATO).

4. At the hearing the respondent also claimed that paragraph 40(1)(d) of the Act had operation to exempt the document. That ground was raised in a directions hearing and particularised in the respondent's statement of facts and contentions lodged in the Tribunal on 20 July 2001. The essence of the reason for the claim was set out as follows:

"The respondent contends that the Report is exempt in full from disclosure to the applicant pursuant to sub-section 40(1)(d) of the FOI Act, as the release of the Report would have a substantial adverse effect on the proper and efficient conduct of the operations of the respondent."

1. The claim under section 36 of the Act raises the following provisions:

36 (1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

36 (5) This section does not apply to a document by reason only of purely factual material contained in the document.

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

36 (7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based."

1. Section 41 of the Act relevantly reads as follows:

"40 (1) Subject to sub-section (2), a document is an exempt document if its disclosure under this Act would or could reasonably be expected to:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

40 (2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

1. Section 22 of the Act provides for a circumstance where an agency has decided not to grant access to a document on the ground it is an exempt document, and it is reasonably practical for the agency to make a copy document with deletions which would not be an exempt document, then the agency may grant access to such a copy.
2. At the hearing the applicant conducted his own case and Ms Campbell appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") were before the Tribunal as the T documents. Further documents were tendered and marked as exhibits. Exhibit 1 is the subject of these proceedings and is protected from disclosure, as required by section 64 of the Act, by an order under section 35 of the AAT Act prohibiting publication to all persons except the Tribunal and the respondent.
3. Oral evidence was given by the applicant, two officers of the ATO and a director of a research company. I make the following findings of fact.
4. Ms Barnes is a project manager, Personal Tax Simplification Project, employed in the ATO. Exhibit 3 is a detailed affidavit by Ms Barnes. She is concerned with implementing the Commonwealth Government's tax reform package described as a New Tax System ("ANTS"). Included in that is the Personal Tax Simplification project including proposals for simplifying the obligations of some taxpayers by eliminating the requirement for annual income tax returns and changing provisions for deductions and rebates.
5. The Personal Tax Simplification Project has three main components:

(a) business design - which is developing alternatives to the existing annual taxpayer prepared tax return;

(b) policy review - which is conducting a review of deductions and rebates; and

(c) community consultation - involving the community in the developing and testing of new concepts.

1. The intended outcome of the project is that the ATO will make recommendations and proposals to Government regarding future directions for the personal income tax system.
2. To that end the ATO commissioned market research including a process that is described as "community consultation."
3. Ms Barnes described the community consultation as a two-way interaction seeking to understand the views of the community on a range of issues; to collect some specific information; to provide information in return; and to test community perceptions including reactions to possible proposals.
4. The community consultation is not generalised but is focussed on specific community groups including some very specific groups, for example, taxation academics, software developers and other government agencies.
5. To assist in this community consultation, the ATO contracted The Research Forum to conduct research into and report on community views on a variety of aspects of the personal income tax system. The tender document attached to Exhibit 3 sets out in some detail the requirements of the contract. It is clear enough from those requirements and the evidence that the contract required extensive community consultation in relation to the proposed "ANTS". The extent of the research is quantified in the fee payable of $200,000 and the proposed time span of 4.5 months. The final report was due on 24 April 2000.
6. The report is a part of a much wider study for development of the business design model and to determine whether or not possible options can be effectively implemented and maintained.
7. It seems that the development of the business design model is a matter confined to the ATO and is not a Government proposal albeit that the ANTS concept is something that has been promulgated by the Treasurer.
8. It is clear from Ms Barnes' affidavit that the research and in particular a consultation process outside the area covered by The Research Forum is ongoing. Because of that she was of the opinion that release of the report could have an adverse effect on future consultation processes by the ATO. However Ms Barnes said in her evidence that the ATO was not identified as the client until after the consultation by the Research Forum with a person or group was completed. That was a deliberate attempt to avoid coloured responses if the ATO was revealed as the client for whom the consultation was being conducted.
9. However, she was clear in her view that because the report in question was only part of a much wider process that process could be put in jeopardy if the report is released prior to completion of the whole process involved in the project. She also reaffirmed her assertion that the public may draw incorrect inferences about future government policy if the report is released.
10. In response to a question from the Tribunal Ms Barnes said:

"We're not trying to avoid public debate but what we would like is informed public debate, and I guess the release of this material in isolation of the other components of the consultation process that we will go through, will just not provide a balanced view."

1. That is somewhat inconsistent with the evidence in Exhibit 3 which includes the following at paragraph 37:

"37. ... and the participants regarded their input as a positive process. If this process is misunderstood by the public or cannot be carried out without the threat of premature exposure prior to its being considered by the Treasurer and the Government, the risk is that consultation activities of this nature will have to be curtailed or ceased."

1. It might be reasonable to infer that the informed public debate is only to take place in relation to Government decisions as distinct from a public debate seeking to influence an outcome before the decisions are made.
2. Exhibit 4 is an affidavit by Ms Vivian, Assistant Commissioner of Taxation, with responsibility for Personal Tax. It is clear from Ms Vivian's affidavit and her oral evidence that the ATO uses market research and consultation in formulating recommendations made by the ATO to Treasury and Government.
3. Ms Vivian was of the opinion to the effect that the consultation process would be compromised if the participants became aware that the manner and results of consultation undertaken for the ATO were to be disclosed then there would be a lack of candour from participants in the consultation. The consequence would be a reduction in the amount or quality of information supplied which in turn would severely restrict the ATO in its capacity to investigate and develop informed opinion.
4. Much was made of a public controversy relating to 2001 Tax Pack and in particular misinformation in the media which resulted in some people moving to tax agent prepared returns and additional work for the ATO because of public confusion.
5. The difficulties with the Tax Pack began, says Ms Vivian, when incorrect information was promulgated by the media. The ATO then had to take remedial action but found this difficult because of the limited capacity of the ATO to deal with the consequences of misinformed, unbalanced or incorrect media releases.
6. It seems, by analogy, Ms Vivian was of the opinion that:

"...if the information acquired were to be released at this stage of the project, it will create ill-informed public debate and an expectation by the community that certain proposals which are not actively being considered by the Government at this time, would actually be delivered. In my experience, the ATO does not want incorrect information to be supplied to its clients, as this would create incorrect perceptions."

1. It would, it was said, have the effect that groups that are still to be interviewed could be adversely influenced by media reports. That was reinforced by the oral evidence of Ms Vivian.
2. Clearly the ATO has a perception that people yet to be interviewed in the consultation processes may form certain views based on publicity about previous consultations, and therefore not have an open mind to matters which may be put to them in the consultation.
3. If I understand Ms Vivian's evidence she was concerned that a lack of open- mindedness by the participants in the consultation process would result in a reduction in acceptance of propositions put forward on behalf of the ATO. According to her evidence she has experienced such lack of open-mindedness because people have formed views prior to attending a consultation. She does not suggest that this was because of what might be called "premature release of market survey reports prior to such consultations".
4. Notwithstanding the desire of the ATO for participants in its consultations to have open minds, I think I can take official notice of what I believe is a fact ie many people in the community have very firm ideas about aspects of the taxation system; they may support the existing system, or they may think it should be modified, or they may think it should be scrapped and replaced by some other system. Equally it is likely that members of the community have views about imposition and levels of taxation which are diverse but firmly held. Ms Vivian said as much when she said that "income tax grabs people's attention".
5. It may also be the case that there are some with open minds because they are seeking new solutions or because they don't think about taxation. I would be surprised if those with truly open minds are not in the minority of taxpayers.
6. Ms Vivian acknowledged, in response to a question from the applicant, that there "is public interest in income tax, particularly during tax time when people are filling out their tax returns."
7. Paragraphs 29-31 of Exhibit 4 suggest that it is better for the public to get no information rather than get the results of market research which is yet to be provided to the Government in the context of the development of policies. The basis for this is the experiences of misinformation in the past.
8. The respondent also called a Mr Hennessy who is a director of a company that undertakes market research. His statement (Exhibit 2) includes dicta to the effect that community attitudes can and do change so that one survey in isolation does not reflect evolving community attitudes and could therefore be misleading in its findings.
9. In his oral evidence he said that he had read the part of the report in question dealing with its methodology. He said he has had no involvement in the research leading to the making of the report.
10. Mr Hennessy distinguished quantitative research capable of being precise in its conclusions and qualitative research, such as undertaken in the subject report. Qualitative research can depend on hypotheses which may or may not give a true reflection of a community attitude to the subject matter of the survey. Conclusions, at least initially, must be treated with caution.
11. Exhibit A is the applicant's statement lodged in the Tribunal on 30 July 2000 (dated 13 August 2001). The document is mostly argumentative but notes that the applicant's employer would publish the subject document in full on the Queensland Newspapers web-site. In cross-examination by Ms Campbell the applicant said that income tax reform is a matter of interest to newspapers but he could only speculate as to the prominence given to the subject report. In reply to the respondent's witnesses who had suggested the newspaper may not give a fair coverage of the report, the applicant said it was paramount that the newspaper reports such matters fairly and equitably.
12. Exhibit B is a letter dated 28 June 2001 addressed to the Tribunal by the Leader of the Opposition (Mr Beazley). The letter asserts that there is a high level of public interest in the taxation system in general and the personal income tax system in particular. The letter also urges the Tribunal to support the applicant's application. In that latter respect the letter is not relevant to the issue before the Tribunal and has not been taken into account. Mr Beazley was not called to give evidence.
13. Exhibit C is a letter dated 3 July 2001 addressed to the Tribunal by the Leader of the Australian Democrats (Senator Stott Despoja). The letter asserts that the "Australian Democrats feel that substantive research into the attitudes of Australian citizens' attitudes towards the personal income tax system is of substantial public interest" (sic). Further the Senator asserts that release of the information would be in the public interest. Clearly a matter for the Tribunal the latter assertion has not been taken into account.
14. Senator Stott Despoja was not called to give evidence.
15. Exhibit D is a minute dated 29 June 2001 by the National Tax and Accountants Association Limited asserting that it is of national importance that the ATO release the full details of its taxpayer funded research. While clearly indicating an interest in the research the letter does not assert a public interest in the document in question. In the light of Exhibit 5, I am satisfied that the company was running a media campaign opposed to tax reform.
16. Exhibit E is a copy of a letter by Dr William De Maria of the University of Queensland dated 29 June 2001. The letter is addressed to the Tribunal and deals with two separate issues. In so far as it lobbies the Tribunal for an expedited hearing it is irrelevant. It goes on to assert that tax reform is one of the most topical subjects currently engaging the attention of the public. Dr De Maria was not called to give evidence.
17. Exhibit F is a copy of a letter by TMP Worldwide Resourcing Ltd dated 10 August 2001. The company conducts surveys or polls in Australia. In essence the company asserts that the fact of publication of poll results does not result in persons who are polled being loath to discuss issues because of publication. I take publication to refer to publication of poll results and not publication of individual responses to the poll. Nor has the company found that further polling has been compromised or distorted by the fact of publication of earlier polls.
18. Exhibit H is a letter addressed to the Tribunal by the Editor-in-Chief of Queensland Newspapers dated 27 July 2001. The letter indicates that it is proposed to publish the subject documents in full by publication on the Courier Mail website. The letter is also argumentative in support of the applicant's case.
19. He goes on to describe taxation reform as a major public policy issue in Australia and also to assert that it is of major interest to the general public. In so far as he seeks to assert that taxation reform is an issue in a Federal election, I am satisfied that is irrelevant to the issues before the Tribunal.
20. The respondent relies on a bundle of copies of press summaries and releases (Exhibit 5). While the exhibit satisfies me that National Tax and Accountants Association Ltd was engaged in an irrational political campaign critical of changes to the tax system, the exhibit does not satisfy me about anything else.

1. Ms Campbell made written and oral submissions.
2. A document is an exempt document if its disclosure under the Act would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ATO (S 40 (1)(d)).
3. Something which is reasonably expected is an expectation that is based on reason, one for which real and substantial grounds exist when looked at objectively Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163).
4. A substantial adverse effect simply means that there must be a real adverse effect and not something insubstantial or nominal (Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 applying ASCIC v AFP (1986) 11 ALN N184).
5. Proper and efficient conduct of the operations of the ATO is a reference to the effect that disclosure would have on the way the ATO operates and that effect would be to the ATO's disadvantage. Such operations include consideration of possible reform to the Taxation System. To do so the ATO must be able to undertake market research in an "environment which has not been polluted or manipulated by misleading information prematurely disclosed to the public".
6. Public co-operation is likely to be adversely affected by publication of misleading information and that would have a substantial adverse effect on the operations of the ATO. That co-operation may also be adversely affected by the premature release of information that has not been considered at appropriate levels.
7. As to section 36, the respondent claims that the documents comprise matters of opinion, advice or consultation and in the course of the deliberative processes of the ATO. Those deliberative processes are its thinking, reflecting, deliberating, consultation and recommendations that may occur prior to a decision or before or during a course of action (Re Waterford and Department of Treasury (No2) [1984] AATA 67; (1984) 1 AAR 1, re Murtagh and FCT [1984] AATA 249; (1984) 1 AAR 419). The consultation process by way of market research reflects the active deliberative process of the ATO.
8. The information contained in the report is not confined to purely factual material so that sub-section 36(5) does not operate to deny exemption. In this regard the document is to be considered as the whole document and not by a disjunctive reading of selected passages. In so considering the document account must be taken of the surrounding circumstances. That would be sufficient, given the pattern of facts to determine that the report is part of the ATO deliberative processes. (Re Chapman and Minister for Aboriginal Affairs (1996) 43 ALD 139 refers).
9. As to the public interest tests the respondent says that while taxation is a matter of serious concern to the Australian public the test is not whether a document is of interest to the public. The test is whether release is in the public interest.
10. In the light of Harris v ABC [1983] FCA 242; (1983) 50 ALR 551 and 567 and the Full Court [1984] FCA 8; (1984) 51 ALR 581, there needs to be a weighing up of the right of citizens being informed of the processes of government (including agencies) on the one hand and the public interest in the proper working of government on the other hand.
11. The following should be taken into account in weighing up the respective public interests:

• taxation is clearly a matter of serious concern to the Australian public. There is clearly a public interest in possible reforms to the system. However, it is submitted that just because there is a public interest on the topic, that the public interest lies in disclosure of every document concerning taxation reform;
• there is a public interest in people getting access to government held information. There is also a public interest in being able to scrutinise the operations of the ATO and to make critical observations;
• disclosure could lead to confusion and unnecessary debate resulting from disclosure of possibilities not yet considered at an appropriate level and where it would not fairly disclose the reasons for decisions which will subsequently be taken (Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139;
• disclosure would confuse the public or create potential public misunderstanding leading to unnecessary debate which would be contrary to the public interest (Cleary and Treasury [1993] AATA 248; (1993) 31 ALD 214);
• there is a public interest in maintaining processes of effective policy development and in avoiding uninformed debate (Corr and PM&C [1994] AATA 229; (1994) 35 ALD 141);
• it would be contrary to the public interest if selected parts of the report were to be published so that only the most sensational and provocative material will come to the attention of the public (Department of Finance and Administration and Herald and Weekly Times [2000] AATA 506; (2000) 31 AAR 251);
• it would be contrary to the public interest if the ATO were no longer able to obtain the whole hearted cooperation of the business community in future market research or to be able to obtain rational, properly considered responses to market research to the general public (Telstra and ACCC (2000) AATA 71);
• there is a public interest in the ATO being able to carry out its operations in a timely, efficient and effective way at a reasonable cost to the community (Telstra and ACCC (2000) AATA 71).

1. The respondent relies in particular on the evidence of Mr Hennessy to show that publication of the subject document would be misleading because it is exploratory research involving focus groups, and likely to be subject to sensationalist reporting.
2. The applicant did not make submissions as to the law. He submitted that the media could only give reasoned reporting if the report is released. It was for the respondent to show why the report should not be released. The balance of public interest factors is that the report should be released because there is a high level of public interest in taxation matters.
3. The report is not a government report and does not purport to define the government's position in relation to income taxation. In so far as the respondent relies upon its experiences with the Tax Pack that is irrelevant to the present case.

63. In Austin v ABC (supra) the applicant claimed that reports by a special investigator to be released by the ABC to a third party were exempt documents within the terms of sections 36, 40 and 43 of the Acts. She sought an order for review under the Administrative Decisions (Judicial Review) Act 1977.

64. An enquiry had been conducted into the affairs of the Legal Department of the ABC. Two interim reports had been submitted to the ABC by the special investigator.

65. At first instance Beaumont J considered the reports in the context of section 36 of the Act. His Honour characterised the reports by their contents but in the context of the terms of reference of the enquiry. He said that the reports which he found to include factual material were within the terms of reference of the enquiry and to be characterised accordingly. The reports were in the nature of opinion, advice or recommendation prepared for the purpose of the deliberative processes involved in the functions of the ABC and within the terms of section 36(1)(a) of the Act.

66. As to whether a grant of access would be contrary to the public interest Beaumont J said (50 ALR 561) that in evaluating where the public interest ultimately lies it is necessary to weigh the public interest in citizens being informed of the processes of government on the one hand against the public interest in the proper working of government on the other. His Honour cited the judgments in Sankey v Whitlam (1978) 142 CLR 1, 21 ALR 505 and Commonwealth v John Fairfax [1980] HCA 44; (1980) 147 CLR 39 at 52[1980] HCA 44; , 32 ALR 485.

67. While it must be accepted that concepts of public interest are necessarily flexible in the particular circumstances of the case it is relevant to note the following extract from the judgment of Gibbs ACJ in Sankey at 21 ALR 527 where his Honour was considering production of documents in the context of the frank and candour advice arguments:

"However, this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind. Another reason was suggested by Lord Reid in Conway v Rimmer, at 952: 'To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind.'

Of course, the object of the protection is to ensure the proper working of government, and not to protect ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal."

68. After referring to a Senate Committee report and decisions in the United States of America Beaumont J concluded that full disclosure of the reports would, on balance, be contrary to the public interest because the reports were interim reports, the applicant had not been interviewed and the possible consequence of disclosure would be either a misleading or unfair impression in the minds of readers who would be without the benefit of any response of the applicant. His Honour was of the opinion that section 36(1) of the Act was satisfied so far as any opinion, advice or recommendation was expressed in the interim reports.

69. A distinction was drawn in relation to purely factual material in the interim reports. Beaumont J was of the opinion that the public interest would not suffer on balance, because of any disclosure of such matters. His Honour also held that section 36(5) had the effect of directing disclosure. In the result his Honour found that access should be allowed to the document after deletions of exempt material in accordance with section 22 of the Act ie access to the purely factual material was allowed.

70. His Honour was called on to further define what was "purely factual material" ((1983) [1983] FCA 281; 50 ALR 567). Two broad categories of material were discerned in the first interim report:

(a) investigative material consisting of the underlying facts as perceived by the investigator at that stage of her enquiry; and

(b) material in the nature of recommendations to the ABC.

71. The material under (a) was, his Honour said, to be properly characterised as purely factual for the purpose of the order made. The fact of there being some fact finding did not alter the essential character of the material, even if those findings were provisional. Excluding the material in the nature of recommendations his Honour found the rest of the report to be purely factual material.

72. In relation to the second interim report Beaumont J found that the introduction and two annexures were purely factual material. The body of the second interim report consisted in the main of recommendations to the ABC. There was some factual material which was not severable from the context and was not therefore purely factual material.

73. The applicant appealed the decisions of Beaumont J ((1984) [1984] FCA 8; 51 ALR 581). The appellant appealed on the basis that the interim reports were exempt documents within the terms of section 36(1) of the Act but conducted the appeal on the basis that the Full Court should determine what parts of the report were purely factual material.

74. In the course of judgment the Full Court said (at 51 ALR 585) that the wording of section 36(1) makes it clear that it extends to documents of the kind specified which originate outside the agency but which are supplied for use in its deliberative processes.

75. Referring to the notions of primary facts and ultimate facts the Full Court said at page 596 that a statement of ultimate fact may be a statement of purely factual material notwithstanding that it involves a conclusion based on primary facts. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt. But section 36(5) only operates where section 36(1) would otherwise operate to make the document exempt (51 ALR 586).

76. The Full Court concluded that the interim reports came within the terms of section 36(1) subject to section 36(5) excluding from exemption purely factual material. After considering the contents of the interim reports the Full Court dismissed the appeal.

77. In relation to the claim that section 40(1)(d) applies to exempt the subject document that issue also arose before Beaumont J in Harris (but not on appeal). It is relevant to note that the present form of section 40 is different to the provision as enacted when the section was considered in Harris.

78. Beaumont J rejected a submission that there would be an adverse effect on the proper and efficient conduct of the operations of the ABC. At 50 ALR 564 his Honour said that the insertion of a requirement that the adverse effect be "substantial" is an indication of the degree of gravity that must exist before this exemption can be made out.

79. Section 40, as it then was, was also considered by Muirhead J in Re ASCIC and AFP (1986) 11 ALD N184. Where his Honour expressed disagreement with "substantial" being an indication of the degree of gravity that must exist before the exemption can be made out. After referring to dicta of Deane J in Tilmans Butcheries Pty Ltd v AMIE, (1979) 27 ALR 367 at 382, his Honour said in effect that the word "substantial" did not import a concept of gravity.

80. In _Tilmans c_ase Deane J preferred a concept of "real or of substance and not insubstantial or nominal". Bowen CJ preferred, in the context of the case, "loss or damage that is more than trivial or minimal" so as to import a notion of "relatively" in the circumstances of the case (27 ALR 374).

81. In the light of those authorities I am not satisfied that a concept of degree of gravity is to be imported into section 40(1)(d). It follows that I am in agreement with dicta of Deputy President Forgie in Re Bayliss (1997) 48 ALD 443 in so far as the Deputy President says that what is required by the exemption in section 40(1)(d) is an adverse effect that is real or of substance and which is not insubstantial or nominal.

82. It is necessary to determine what effect a grant of access to the report will have on the proper and efficient operations of the agency. There is nothing before me that shows a direct adverse effect on the operations of the ATO but the material does indicate secondary adverse effects as to future surveys that may be conducted on behalf of the ATO. The material also satisfies me that public controversy could follow from the grant of access and publication of the subject report. In so far as it is suggested that misleading publicity and ill-informed debate may result, I am not satisifed that I could find that as a fact as distinct from a possibility. In other words I am not satisfied, on the balance of probabilities, that misleading publicity and ill-informed debate would result from a grant of access. It might be reasonable to infer that the grant of access would have the opposite effect but it is not necessary for me to decide this.

83. I am not satisfied, on the material before me, that the grant of access would be likely to result in a lack of frankness and candour in responses by participants in future surveys. That is not (and probably could not be) established in the material before me. Any fears in that regard are in my view ill-founded, lack a basis in fact and, with respect, indicate a somewhat jaundiced view of Australian taxpayers in particular and the Australian community in general.

84. I turn now to the public interest issues. In Re Mann and ATO (1985) 7 ALD 698 the Tribunal discussed the various public interest tests in the Act. In relation to section 36(1)(a) it must be shown, quite independent of that paragraph, that the grant of access would be contrary to the public interest. However in section 40 the satisfaction of grounds in sub-section (1) would ordinarily be enough, by itself, make grant of access prima facie contrary to the public interest. However that prima facie position may be displaced in a particular case by something more than the general policy of the Act as expressed in section 11 and, I might add, section 3 of the Act. That is not to suggest that an onus lies with the applicant to show that the prima facie situation is overcome by making out a positive case with respect to public interest.

85. That proposition was rejected by the Full Court in Searle Australia Pty Ltd v PIAC and another, (1992) 108 ALR 163. In that case the Tribunal had weighed up the public interest in the public knowing from whom the agency received information when it was evaluating therapeutic goods with the agency's ability to receive sound advice to enable it to fulfill its responsibilities. In the result the Tribunal found that the documents should be released with deletions so as not to identify the evaluators.

86. That conclusion was not set aside by the Full Court. Although the Court did not accept aspects of the Tribunal's reasoning it did accept that there had been a weighing up of the effect of granting access.

87. Exhibit 1 is a copy of the subject report consisting of two volumes. A report, in general terms that discusses outcomes from the survey and detailed analysis of survey results in a form that does not identify participants in the surveys. In the light of section 64 of the Act I have taken time to read the report. While the survey has been conducted by a private company prima facie at arms length from the ATO, the survey was conducted, with some exceptions while ATO officers were present although without the knowledge of the persons being surveyed.

88. Although the report categorises participants by locations, incomes, etc they remain anonymous throughout the report.

89. My consideration of the report has lead me to the following conclusions in the light of sections 36, 40 and 22 of the Act:

(a) the report deals with a sample survey of the public's reaction to the taxation system;

(b) the report discusses possible changes to the system and public reaction to those possible changes;

(c) the report was not prepared by and clearly does not reflect input by the ATO;

(d) the report is not only dealing with public interest in the taxation system and possibilities for change, but is a document of overwhelming public interest;

(e) the material before the Tribunal establishes that the document is not part of the deliberative processes of the ATO except that it forms a possible factual basis for such deliberative processes;

(f) the deliberative processes of the ATO would not be adversely affected by granting access to this report and the material before the Tribunal suggests that those deliberative processes may be enhanced by any public debate that may arise as a result of publication of the report;

(g) the fact that the report may reflect on the ATO is not, in my view, a factor that changes the balance of whether it is in the public interest to grant access or refuse access;

(h) the fact that the report may reflect on the ATO is not, in my view, something that would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ATO because on the evidence of Ms Vivian, any short term adverse effect would be minimal and any long term effect might be expected to be a positive effect and not an adverse effect;

(i) the report is a report that comes within the terms of section 36(1) of the Act because it is a document that would disclose matter in the nature of opinion and advice arising out of consultation for deliberative purposes involved in the functions of the ATO;

(j) the content of the report relates to purely factual material to which section 36(5) would be applicable;

(k) I am satisfied that disclosure of the document would not be contrary to the public interest because the very nature of the document is that it arises out of and reports on consultations with the public by a contractor otherwise at arms length from the ATO for the purpose of gauging public opinion through community consultation - it is, in simple terms - the public's document;

(l) on my reading of the document there is nothing that could be said to be likely to confuse or create misunderstanding or lead to debate which would be contrary to the public interest; and

(m) whether the report is likely to create public controversy is difficult to assess but it is clear that the report would lead to more informed debate but without any perceivable adverse effect on future community consultations that may be undertaken for the ATO.

90. For these reasons the decision under review will be set aside and a decision made that the subject report (Exhibit 1) is not an exempt document within the terms of the Act.

I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: .....................................................................................