MEDIUM NEUTRAL CITATION: [2002] VCAT 1051

1. The decision under review is affirmed in relation to the words in the Operation Plan referred to in paragraph 24(a) of these reasons describing the size and scale of the culling operation

2. The decision under review is set aside in relation to the words in the Operation Plan relating to security issues and describing the control techniques referred to in paragraphs 24(b) and (c) of these reasons

For the Applicant: Mr R Richter QC and Ms S Porrit instructed by Environment Defenders Office (Victoria) Ltd

1. By letter dated 12 April 2001, the applicant sought access from the respondent, the Royal Botanic Gardens ("RBG") under the Freedom of Information Act 1982 ("the FOI Act") to:

"The Flying Fox Management Strategy 2001 and the operational plan approved by the Director of the Royal Botanic Gardens, Melbourne".

2. By letter dated 31 May 2001, the Freedom of Information Officer of the respondent, Mr Renfrey, refused access to the documents, claiming exemption under several sections of the FOI Act.

3. By letter dated 4 July 2001, Dr Duretto, Manager, Plant Sciences, with the respondent, advised the applicant that he had conducted an internal review of Mr Renfrey's decision and he had decided to uphold the decision to refuse access.

4. By application for review filed with the Tribunal on 31 August 2001, the applicant sought a review of the decision of the respondent refusing access.

5. Since about 1981, the RBG has been home to a colony of Grey Headed Flying-Foxes ("bats"). It was the uncontested evidence of Mr Richard Barley, Divisional Director of RBG, which evidence I accept, that by 1990, it had become apparent that the bats were staying all year round at the RBG and doing damage to the vegetation in the gardens. In addition, the bat population had risen greatly, with increasing damage to the vegetation of the gardens.

6. During 1998, preparation of a Management Strategy document ("strategy document") was commenced by Mr Barley with the object of developing actions and strategies for the management of the bat population and with a view to protecting the vegetation within the RBG, particularly in Fern Gully. The objective was stated as being to "strategically reduce the population of the bats over time to a zero population on-site". The strategy document was co-authored with the Department of Natural Resources and Environment ("Department") and developed in conjunction with and in consultation with the flora and fauna state-wide programmes area of the Department.

7. The final draft of the strategy document is headed "GREY-HEADED FLYING FOX MANAGEMENT STRATEGY FOR THE ROYAL BOTANIC GARDENS MELBOURNE" and is dated March 2001. It was one of the two documents to which access was denied by the respondent.

8. On 23 March 2001, an authorisation was obtained from the Department under Section 28A of the Wildlife Act 1975 ("the authorisation") It was to remain in force, unless revoked, until 31 March 2002. The authorisation was granted to Dr Phillip Moors the Director of the RBG, Mr Alex Krstic, Mr Barley and other persons under their direct supervision. Mr Krstic is Director of Adventure Hunt Pty Ltd which trades within one of its divisions as Wildpro.

9. Under the authorisation, all activities provided for were required to be done in accordance with the strategy document "and the operational plan, approved by the Director of the Royal Botanic Gardens, Melbourne". The operational plan referred to in the authorisation was a document dated 28 March 2001 headed "Management of Grey Headed Flying Foxes at the Royal Botanic Gardens Melbourne - Operation Plan" ("the operation plan"). It was the other document to which the applicant was refused access. The operation plan, which was prepared by Mr Krstic, stated that an operation targeting the control of bats at RBG had been authorised. The aim of the operation plan was set out in the document in the following terms: "(t)o safely, discreetly, humanely and efficiently destroy the nominated number of Flying Foxes and to recover and destroy their carcasses". The operation was to be implemented at the direction of the director of Wildpro.

10. Under the authorisation, permission was granted for the live capture of bats using harp traps and tranquilliser darts, the fitting of radio-telemetry devices or collars or tags and release or relocation of the bats, destruction of the bats by shooting, euthanasia of the bats using lethal injection or immersion in carbon dioxide and transfer of the carcasses to appropriately authorised persons or disposal at a medical waste facility and taking blood and tissue samples and the transfer of those samples to the holder of an appropriate authorisation under the Wildlife Act.

11. Permission for these activities was given subject to a number of conditions including the restriction of the authorised activities to the RBG and for a "minimum number of animals" to be destroyed.

12. It was the uncontested evidence of Mr Barley, which I accept, that some culling of the bats took place between March and June 2001. There has been no culling since June 2001. Between March and June 2001, consideration was given to the establishment of an alternate resting site for the bats and the RBG and Department are in the process of implementing a recommendation for the establishment of an alternative site for the bats at Ivanhoe.

13. On 4 December 2001, the Commonwealth Minister for the Environment and Heritage listed the bats as a threatened species in a vulnerable category under the Environment Protection Biodiversity Conservation Act 1999 (Cth).

14. Following the filing of the application for review, the respondent released some of the exempt material in the two disputed documents to the applicant. By 29 January 2002, the respondent had released most of the material in both documents. Further, the applicant advised the respondent that it was not seeking disclosure of material likely to pose a risk to persons or property.

15. On 28 January 2002, the respondent's solicitor advised the applicant that at the hearing of the matter, the respondent proposed to make an application to have the proceedings struck out or dismissed under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") on the basis that the proceeding was vexatious or otherwise an abuse of process.

16. By letter dated 30 January 2002, the Environment Defenders Office (Victoria) Ltd, acting for the applicant, advised in part as follows :

"As previously discussed and advised we are not pressing for disclosure of material likely to pose a risk to persons or property.

Our client does however have legitimate concern for and interest in the magnitude/extent/quantification of the population of the Grey-headed Flying Fox to be exterminated as well as information that would satisfy it that the actual mechanism of extermination is humane and that it does not constitute offences under State legislation concerned with the taking of wildlife and/or prevention of cruelty to animals nor under the Environment Protection & Biodiversity Conservation Act 1999 (Commonwealth).

It is clear that these are matters in the public interest.

So that there is no confusion about the ambit of what remains in dispute our client now only seeks disclosure in full of the paragraphs in the Operational Plan under the headings "Situation" and "Aim". Our client also seeks disclosure of the methods of extermination and nature of equipment to be used (but not of details identifying people or location of equipment).

We thus make an open offer that if the 2 paragraphs headed "Situation" and "Aim" and the relevant parts of the Operational Plan relating to methods and nature of equipment are provided to us in accordance with our application we will discontinue the action.

17. When the hearing commenced before me, it was agreed that I determine the respondent's application under Section 75 of the VCAT Act and I subsequently heard submissions made on behalf of the parties in that regard.

18. It was not in issue that the applicant, through its solicitors, had received a copy of the authorisation from the Department in the course of and for the purpose of Supreme Court injunction proceedings brought by the applicant. The authorisation referred to the two documents for which exemption was claimed under the FOI Act. It was argued by Mr Batskos, who appeared for the respondent, that as the authorisation was obtained in those circumstances it was the subject of implied undertakings similar to those in Home Office v Harmon [1983] 1 AC 280 not to use it for purposes other than the injunction proceedings. Further, using the authorisation for the purpose of framing a request for access to documents and an application for review to the Tribunal was or was likely to be a breach of that undertaking. Mr Batskos argued that to commence the proceeding in the Tribunal in those circumstances was vexatious or an abuse of process. He sought that the application for review be struck out or dismissed with costs.

19. It was submitted by Mr Richter QC who appeared for the applicant that the principle of law established in Harmon's case was not applicable to the present situation. He argued that Harmon's case and all cases emanating from it concerned an abuse of process or civil contempt where the court's coercive powers were invoked, whether by subpoena, directions, discovery or the requirement to deliver answers to interrogatories. None of the cases referred to by Mr Batskos involved the voluntary delivery of a document as occurred here. Mr Richter submitted that those cases involved an implied promise to a court where its coercive powers were used that the court's orders or directions would be followed. The authorisation was not such a document and no confidentiality attached to it.

20. Mr Richter submitted further that even if there had been a breach of undertaking as argued by Mr Batskos, the appropriate forum to determine that issue was the Supreme Court, not the Victorian Civil and Administrative Tribunal. Finally, Mr Richter submitted that the respondent's application pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998 was itself an abuse of process and should be struck out.

21. At the conclusion of the submissions, I found that there had been no breach of an implied undertaking to the Court by the applicant in the manner contended by Mr Batskos. I accepted the submissions made by Mr Richter and struck out the application. I then proceeded to hear the substantive issue under the FOI Act. Prior to the calling of evidence the exempt documents were disclosed to Mr Richter on the basis that he provide an undertaking that he keep the information in the documents confidential. After he had inspected the documents Mr Richter identified material in them to which the applicant did not seek access.

22. Mr Barley was called to give evidence on behalf of the respondent. During the course of his evidence he indicated that he had no objection to the balance of the withheld exempt material in the strategy document being released to the applicant. He gave this indication on the basis that it was subject to obtaining legal advice. As I understand the situation, exemption was not ultimately claimed for the document. This left the operation plan as the only document in dispute.

23. Mr Krstic was called to give evidence on behalf of the respondent. He gave his evidence by telephone link and he did not have with him the exempt documents. At the commencement of cross-examination of him by Mr Richter some of the exempt material in the operation plan was revealed. After some discussion as to how the matters should proceed, I ordered, with the consent of both parties, that the hearing be conducted in private so far as the evidence of both Mr Krstic and Mr Barley was concerned. This was to enable both counsel to ask questions of the witnesses that went to the content of the document in dispute. Whilst, in accordance with Section 101 of the VCAT Act, all hearings of the Tribunal must be held in public, the Tribunal is empowered pursuant to Section 101(2) to make such directions. Both Mr Batskos and Mr Richter agreed that in providing reasons for decision I could refer to any of the evidence save for that which disclosed the exempt material.

24. The operation plan, consisting of 2½ pages has been released to the applicant, save for the following portions :

(a) Seven words on the first page under the heading "Situation" and two words at the commencement of the second page under the heading "Risk Assessment" for which exemption is claimed under Section 30 and Section 31(1)(e) of the FOI Act. Those words describe the size and scale of the culling operation.

(b) A sentence on the second page under the sub-heading "Shooting". Those words relate to security issues. Exemption is claimed for the material under Sections 30 and 31(1)(e).

(c) A sentence and part of a sentence on page 2 under the heading "Control Techniques". Exemption is claimed for the material under Section 34 and Section 31(1)(e). Those words describe the control techniques used by Wildpro during the operation.

"(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 opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative process involved in the functions of an agency or Minister or of the government; and

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

"(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(e) endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law."

"(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to -

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

(2) In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of sub-section (1), an agency or Minister may take account of any of the following considerations -

(a) whether the information is generally available to competitors of the undertaking;

(b) whether the information would be exempt matter if it were generated by an agency or a Minister;

(c) whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and

(d) whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls -

and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

(3) Prior to making a determination under sub-section (1) as to whether the disclosure of information would expose an undertaking reasonably to disadvantage an agency or Minister shall notify the undertaking which has supplied the relevant document or documents that the agency or Minister has received a request for access to the document and shall -

(a) seek the undertaking's view as to whether disclosure should occur; and

(b) notify the undertaking where the agency after consultation has decided to disclose the document and in such a case notify the undertaking of the right to make an application for review of the decision provided by section 50(2)(e).

29. Public interest considerations are relevant in relation to Section 30 and Section 50(4) of the FOI Act. Section 50(4) permits the Tribunal to override most of exemptions provided for in the Act (including the exemption under Section 30(1)) if the public interest requires that to be done). In Department of Premier and Cabinet v Robert Hulls [1999] VSCA 117, their Honours Tadgell, Phillips and Batt JJA considered the operation of the public interest override constituted by Section 50(4). Phillips JA concluded that the public interest override was invoked only in a case of imperative necessity. The word "requires" in the sub-section means "demands" or "necessitates" (see page 372-3). Further, the establishment of an exemption with respect to a document created a presumption against release under the public interest override (see page 381).

30. A statement of public interest grounds was filed on behalf of the respondent in the following terms:-

"1. Disclosure would not serve to benefit the public in general. There is no public interest in favour of disclosure to the world at large. There is at best merely the curiosity or interest of the applicant as a special interest group representing the interests or curiosity of an individual or some individuals. Disclosure is not in the public interest. The fact that some matter might be of interest to the public does not equate to public interest.

2. It is contrary to the public interest to disclose deliberative material that may have been overtaken by events. The documents do not represent a final position and were superseded only weeks after their preparation.

3. There is a serious risk that disclosure to the world at large under the Act would only result in further mischief and endanger the lives or physical safety of individuals and place at risk property of the RBG and others including plants, trees, equipment, etc.

4. Disclosure of the information may compromise the operations of the RBG or any contractors in dealing with the bat over population problem at the RBG.

5. One document would disclose the methodology used by the contractor engaged to deal with the bats before the limited cull was stopped. There is also other commercially sensitive information the disclosure of which would harm unreasonably the competitive position of the contractor.

6. Disclosure could impede the frank and open relationship that has developed over time between the RBG and the Department of Natural Resources and Environment and may cause damage to the deliberative processes of the RBG if disclosure occurs."

31. The statement of public interest grounds filed on behalf of the applicant is in the following terms:-

"1. The public interest in providing the public with access to the entire material forming the authorisation under s.28A of the Wildfire Act 1975 (Vic) (the authorisation).

2. The public interest in providing access to information to allow the public to assess the nature and quality of the information forming the basis of the decision of the Delegate of the Secretary of the Department of Natural Resources and Environment to give the authorisation.

3. The public interest in allowing the public to assess the basis on which the Delegate of the Secretary of the Department of Natural Resources and Environment formed the view that he was satisfied that the authorisation was necessary in accordance with s.28A(1)(c) to (i) of the Wildlife Act 1975 (Vic).

4. The public interest in providing information to the public to allow the public to assess whether the conditions set out in the authorisation have been met by assessing whether any activities carried out under this authorisation comply with the terms of:

a. the Grey-Headed Flying-Fox management Strategy for the Royal Botanic Gardens Melbourne

5. The public interest in making available sufficient information about the reasons for, methods of and manner of controlling the bat population in the Royal Botanic Gardens to enable informed debate.

6. The public interest in ensuring the Victorian Government and the Royal Botanic Gardens are accountable and open to scrutiny when making decisions relating to the welfare of the Grey Headed Flying-Fox population.

7. The public interest in ensuring the Victorian Government and the Royal Botanic Gardens are accountable and open to scrutiny when making decisions relating to the management of the public facilities at the Royal Botanic Gardens.

8. The public interest in facilitating the public consultation phase, which commenced on 4 December 2001, as part of the finalisation of Administrative Guidelines for the protection of the Grey-headed Flying-Fox, now listed as a threatened species in the vulnerable category under the Environment Protection Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).

9. The public interest in allowing public consideration of and comment on the extent to which the measures permitted by the authorisation are compatible with the protection of the Grey-headed Flying-fox as a threatened species under the EPBC Act."

32. Mr Krstic gave viva voce evidence and his written statement dated 30 January 2002 was tendered in evidence. In that statement he said that Wildpro specialised in operations providing expert services in the areas of wildlife and animal damage control. This could involve aerial reconnaissance and control operations, animal control using state of the art, safe humane and effective equipment and techniques, and humane live capture services.

33. He said that Wildpro was approached by Mr Barley in March 2001 in relation to the management of the over-population of bats at the RBG and it was appointed to carry out the operations. After the authorisation was obtained, he was requested by Mr Barley to prepare an operation plan in accordance with the requirements of authorisation for approval by Dr Moors, to put into effect the management strategy that had been developed by the RBG and the Department. When discussing the proposed plan with Mr Barley, he was informed that it was to be prepared on the basis that it be kept strictly confidential, given the sensitivities that attached to matters such as those the subject of the plan. This meant that the only persons outside Wildpro to be shown the document would be Mr Barley and Dr Moors. It would not be disclosed to the public. He said that because of the commercial and other sensitivities of some of the information in the document, he was happy to prepare it on this confidential basis.

34. Mr Krstic said that on 28 March 2001 he sent the operation plan to Mr Barley for approval. He was subsequently advised that it was satisfactory and was given the go-ahead to commence implementing the plan in relation to the control programme. The document had a further purpose, which was for it to be used internally to brief staff in relation to the operation at the RBG.

35. Mr Krstic said that references to the scale of the operation in the operation plan were statements of opinion by him. He said that :

"In the context of the fact that the culling operation has been superseded by the relocation proposal, it would be misleading to describe the operation in the terms stated in the document. The operation plan is, in effect, out of date and it would be misleading to the public to now disclose those parts of the document dealing with the size or scale of the operation."

36. Mr Krstic said that disclosure of the document would reveal confidential information provided by Wildpro to the RBG. That information was provided in relation to the administration of the law, namely, the putting into effect by the RBG of the authorisation under Section 28(a) of the Wildlife Act 1975 consistent with the obligations of the RBG under its enactment to protect the Botanic Gardens. Mr Krstic said that during the course of the conduct of the operations at the RBG by Wildpro, Wildpro received numerous threats against individuals and the business and property of Wildpro. Threats were received over the telephone and in writing. Some of the threats ranged from direct personal threats that if bats were killed, the people doing the killing would be killed, to threats to put him out of business. He had had a number of computer viruses sent to him by email by individuals who had made threats or complaints. Attached to his written statement were copies of electronic mail messages sent Mr Krstic. Three of the messages were from one person. Based on those threats, he was concerned that disclosure of the material in dispute would, or would be reasonably likely to in future endanger the lives or physical safety of himself or his staff.

37. Mr Krstic said that some of the information was of sensitive, commercial value for Wildpro and went to the heart of Wildpro's operations. The organisation operated in a market where there were not many competitors and much effort put into ensuring that the market was retained. He said Wildpro held the dominant share of the market in Victoria, and possibly Australia, and it also conducted operations overseas. It had been able to establish its position in the market through development of extensive expertise and use of cutting edge technology and techniques. This included the most sophisticated methods of lighting, weapons, capture systems and the like. He said in many cases the equipment and techniques or methodologies used by Wildpro in dealing with particular animals or situations were not generally available to its competitors. Competitors might be aware only in broad terms of what Wildpro did, but not in specific terms how it was done. In some cases, he said, the equipment used was experimental or state of the art equipment that had been provided by manufacturers overseas to enable testing and feedback on effectiveness. Sometimes that equipment had not even been patented and had been provided on a strictly confidential basis. Because of Wildpro's reputation of discretion and confidentiality in protecting such details, manufacturers placed a high degree of trust in Wildpro.

38. Mr Krstic said that if the information in the document was released to the world at large, it would be easier for a competitor to develop in a short period the degree of knowledge and expertise of Wildpro. At the present time, a competitor would not know what equipment to acquire in order to compete more directly with Wildpro for various specific situations unless they had a head start, such as by disclosure of information like that which was in the exempt material.

39. He said that if details of the equipment used for various situations was publicised, it would provide the opposition with information that would impinge on its own commercial position and erode the competitive advantage and experience Wildpro had achieved incrementally over the years.

40. Mr Krstic said that employees of Wildpro were informed that they should say nothing about the operation's equipment, methods or techniques of Wildpro. This was reinforced by Wilpro's Standard Operating Procedures issued to staff. Further, clients were requested not to disclose techniques, tactics and details of equipment used by Wildpro where those matters were not common knowledge in the industry.

41. Mr Krstic said the fact that disclosure of such information would or would be likely to cause substantial harm to Wildpro's competitive position was based on previous experience. This past experience formed the basis for his belief that it would happen again if this type of information was released. There had been a few instances in the past when clients of Wildpro inadvertently disclosed directly or indirectly to other persons what Wildpro did for them and how it was done. That disclosure of methodology resulted in competitors using those techniques and related information to erode Wildpro's competitive position. There was one instance where, based on that information inadvertently disclosed, a new business started up in competition to Wildpro.

42. During cross-examination, when asked how many bats were to be killed under the authorisation he said that "we were going to be advised as to what that number could be, depending on the behaviour of the bats" once the culling commenced. He said the idea was not to destroy large numbers of bats. The culling was to be used as a method of stopping other bats roosting in that area. The RBG never advised him as to the number of bats to be killed. He began culling without any idea as to how many were to be killed, but it wasn't going to be all the bats. The purpose of the exercise was to conduct a controlled cull and to keep the culled numbers to an absolute minimum in order to achieve the removing of the other bats from the RMG of their own free will. He agreed that to have a controlled cull it was necessary to know what proportion of the bat population of 20,000 was to be culled. He was not advised however what that proportion would be.

43. When asked by Mr Richter how disclosure to the public of the size or scale of the operation would now cause danger to any one, he said that release would provoke some extremists to cause him or people under him harm. He said that significant threats had been made by people he had every reason to believe would carry out the threats. Release would provoke some people into unlawful activity against him and his personnel or their property. He agreed with Mr Richter that the past threats and damage had occurred at a time when the public had not been told what was in the operation plan.

44. Mr Krstic agreed further that the material under the heading "Shooting"( paragraph 24(b)) was a matter of common sense. However, if that information had come to the knowledge of those who sought to disrupt the operation, they would have been able to effectively stop it and the operation may not have been successful. He said that should a similar operation be conducted in the future, people armed with this information could disrupt his company's operations. Further, release of the material referred to under the heading "Control Techniques" in paragraph 24(c) would cause some radical people more angst and to behave in an irrational manner. He conceded that it was not particularly bad to advise people that accurate and humane methods of destroying the bats were used.

45. When asked specifically what material if released would affect the commercial operations of his business. Mr Krstic said he did not want to advertise the type of equipment, ammunition, tactics and specifications used by Wildpro or the way it was used.

46. In his written statement of evidence dated 14 January 2002, Mr Barley said that the respondent was concerned not to disclose the withheld information to the public as a result of incidents of violence or threatened violence which had occurred in recent times in relation to the management of the bats. He provided examples of such incidents which included the following :

"* There have been threats of death and injury made to individuals associated with the management of the RBG.

* There have been a number of individuals turning up at the home of at least one member of the management of the RBG.

* On one occasion specific equipment at a specific location within the RBG was unlawfully damaged to such an extent as to make it inoperable and at a cost of in excess of $5000 to repair.

* There has been a threat to kill one tree on the RBG site for every bat culled.

* There have been threats to destroy particular plant collections at some time in the next 2 years.

* There have been night time trespasses on the site of the RBG."

"As a result of these threats there has been significant police involvement in investigations and the RBG has obtained specialised security advice resulting in significantly increased security and associated costs to secure the site and also for the protection of individuals against whom threats were made.

In these circumstances of threatened violence, and bearing in mind that disclosure under the Freedom of Information Act is to the world at large, the RBG is concerned that disclosure of the remaining information in the management strategy document would impede the ability of the RBG to properly implement management strategies without endangering the lives or physical safety of RBG staff and staff associated with Wildpro or putting in jeopardy the security of the RBG site in terms of risk of damage to trees and plant collections as threatened."

"To the extent that there is any reference to the scale of the proposed operation, it would be misleading given that the relocation proposal currently being investigated and implemented by the RBG and the Department has gained momentum. The operation plan is, in effect, out of date and it would be misleading and dangerous to now disclose that document.

To the extent that the services of Wildpro were used or may be required in future, disclosure of the document would disclose confidential information provided to the RBG in relation to the administration of the law, namely, the putting into effect of the authorisation under section 28A of the Wildlife Act 1975.

In the circumstances of the incidents and threats of violence referred to earlier, it is expected that there is a risk of endangerment of the lives or physical safety of persons who have provided this confidential information or other persons or employees associated with the provider of this confidential information. There is also a concern by the RBG that the lives and physical safety of any potential protestors or other activists that may seek to take action to put a stop to the implementation of certain operations could arise as a real risk if this operational plan is released".

49. A chart setting out details of 23 instances of vandalism in the RGB between 20 March 2001 and 11 July 2001 was attached to Mr Barley' s statement. It indicates that there were two occasions in July 2001 of vandalism in the RBG and an occasion in October 2001 of damage caused to a harp trap with an estimated repair bill of $5,000.

50. In his viva voce evidence before the Tribunal, he said in relation to the reference to the scale of the proposed operation in the operation plan that the opinion expressed was that of Mr Krstic. It would not have been how he would describe the programme. Whilst he approved the plan the contractor was not determining the scale of the operation. He discussed the extent of the culling of the bats (in round figures in terms of actual numbers) with Mr Krstic. These discussions were not minuted or noted in writing.

51. He had several concerns if the information was released. It could be misused in that people who had already made threats of damage might "spring into action" and it could mislead public debate. Some of the threats were long term and if further information was released the threats might be carried out. Further, there was information in the operation plan, consistent with an approach taken for live captive for re-location, and therefore potentially the management plan for capture and relocation might well be interfered with by people who did not wish to see anything happen to the bats. Any information they may have that made it more clear as to the nature of that activity could potentially put those sorts of activities and the people involved at risk.

52. When asked by Mr Richter whether the public had some right to know the scope of the operation, Mr Barley replied that the respondent's accountability was set out in the authorisation. He said he was no longer concerned to withhold the material under the heading "Shooting" on page 2 of the operation plan. Further, the material under the heading "Control Techniques" on page 2 was a matter for the operator.

53. When asked how long his concerns regarding threats of damage to property and to individuals would continue, he said the nature of some of the threats was such that they were going to last for a long time in that even if the culling stopped certain things would happen to him and his staff in the next couple of years. They were made by people who were opposed generally to managements of the bats. He did not think that he personally or others had received new threats since the culling stopped. However there had been damage to the RBG since the culling stopped including damage to the harp trap. There had also damage to signs, and signs had been thrown in the lake.

54. Ms Julie Hughes in her written statement made on the 7th of January 2001 and tendered in evidence said that she was the Animal Welfare Campaigner for the applicant. She said she had monitored issues relating to the authorisation and the culling of bats and she was aware that there had been considerable interest in the fate of the bats from both the general public and the scientific community. Attached to her statement was a copy of a letter dated the 26th of April 2001 from Ms Nicola Markus to the Premier on behalf of several members of the scientific community. Ms Hughes said that some indication of the level of public interest could be seen from a search of the Fairfax internet site showing 38 relevant articles.

55. The letter from Ms Markus to the Premier expressed concern and dismay at the culling of bats at RBG and requested urgent and immediate intervention in the matter. In particular Ms Markus, on behalf of the Australasian Bat Society, requested that Mr Bracks "effect the immediate and permanent cessation of culling and instruct Minister Garbutt to accept the recommendations of her Scientific Advisory Committee to list the [bats] as threatened under the Flora and Fauna Guarantee Act 1988".

56. I turn first to the words describing the size and scale of the operation (see paragraph 26(a) above). In relation to Section 30, I accept that Mr Krstic is an officer within the meaning of a definition of "officer" in Section 5 of the FOI Act (see Proudfoot v Melbourne University (1997) 11 VAR 482-489 and Re Mildenhall v VicRoads (1996) 9 VAR 362). I am also satisfied that the material falls within Section 30(1)(a) as it expresses Mr Krstic's opinion in relation to the operation.

57. In relation to Section 30(1)(b) and the public interest, I do not accept the evidence of Mr Krstic and Mr Barley that it would be misleading to release the material. Release will reveal Mr Krstic's opinion at a particular time concerning the scale and size of an operation which was to be carried out at his direction. The fact that the operation plan was not fully implemented, or that Mr Barley did not necessarily share Mr Kristic's view, does not in my view make Mr Kristic's opinion misleading.

58. In this regard I accept the applicant's submission that there is a public interest in providing the public with access to information to enable it to assess the nature and quality of information forming the basis of the Department's decision to give the authorisation.

59. Balanced against that public interest consideration is the public interest against disclosure where such disclosure might endanger the lives or physical safety of individuals and place at risk property of the RBG and individuals. In my view, the uncontradicted evidence of death threats and threats of physical violence against Mr Barley, Mr Kristic and others working with them are of real concern. A perusal of some of the electronic messages sent to Mr Kristic reveals the menacing nature of some of the threats

60. It was argued for the applicant that there was no basis, other than assertion by the respondent, for concluding that any damage to persons or property would follow release. There is no evidence that there have been any threats to people's lives or personal safety since the culling ceased. The evidence of Mr Barley indicates however that there have been acts of vandalism in the RBG since it announced that the culling had ceased and that it had no immediate plans for culling operations. Such acts lend some support to Mr Barley's fear of further threats or possible danger if the material is released. In this regard I accept Mr Barley's evidence as to the ongoing nature of some of the threats and his concern that release of the material might cause some people to "spring into action ". The nature of the withheld material is such that it might, in my view have this effect .

61. I have formed the view that on balance the public interest in favour of disclosure is outweighed by the public interest in protecting people whose lives or physical safety might be endangered if the material is released. Whilst the people responsible for threats and vandalism are no doubt small in number I am mindful that disclosure is to the world at large and not just those people opposed to culling of the bats who have behaved in a law abiding manner.

62. I turn to the material referred to in paragraph 26(b) of these reasons which provides details of the controls techniques and methodology used by Wildpro during the operation. In his evidence before the Tribunal Mr Barley indicated he no longer sought to withhold the material. Mr Krstic continued to oppose release. In relation to Section 30(1)(a) of the FOI Act the words in questions do not, in my view disclose matter in the nature of opinion, advice or recommendation prepared by Mr Krstic for the purposes of the deliberative process. Rather, the material is in the nature of an instruction by him in the event that certain circumstances exist. Accordingly the document is not exempt under that section.

63. If I am wrong, and the material does fall within Section 30(1)(a) I am not satisfied that it would be contrary to the public interest to release it. Mr Barley did not appear to have any concerns in relation to the release of the material. It does not appear to be controversial and is in the nature of a commonsense instruction regarding the conduct of the culling operation. In my view the public interest factors advanced on behalf of the applicant in relation to the material to which I earlier referred outweigh any public interest considerations in withholding the material.

64. I turn to the material referred to in paragraph 26(b) for which exemption is claimed under Section 31(1)(e) of the FOI Act.

65. In Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322 at 328 O'Bryan J said:

"A careful examination of all the paragraphs in Section 31 indicates to me that for a document to fall within one of the exemptions it should have a connection with the criminal law or with the legal process of upholding or enforcing civil law."

66. In Re Binnie v Department of Agriculture and Rural Affairs (1997) 1 VAR 361, 365 the Administrative Appeals Tribunal adopted the following quotation from Bayne, Freedom of Information (1984) page 151 in relation to the expression "administration of the law":

"The concept of `the administration of the law ... in the particular instance' is more extensive than the concepts of `investigation' and `enforcement' and is not limited to activity which contemplates a particular proceeding concerning a (possible) past or (possible) future breach of the law. `Administration' would clearly embrace preventive activity ... but more generally could embrace activity which simply collects information in documentary form in order to monitor whether a particular person is complying with the law."

67. In my view the activities of the RBG do not have a connection with the criminal law or with the legal process of upholding or enforcing the civil law or entail monitoring compliance with the law. In this regard Section 1 of the Royal Botanic Gardens Act 1991 sets out the main purposes of the Act as being to:

"(a) to establish the Royal Botanic Gardens Board and define its functions;

(b) to establish a position of Director, Royal Botanic Gardens;

(c) to provide for the management of the Royal Botanic Gardens, Melbourne and the National Herbarium of Victoria;

(d) to make consequential amendments to Drugs, Poisons and Controlled Substances Act 1981."

68. The objectives of the Royal Botanic Gardens Act 1991 are set out in Section 5. They are as follows:

"(a) to conserve, protect and improve the botanic gardens and managed land and their collections of living plants;

(b) to conserve and enhance the State botanical collection and National Herbarium;

(c) to provide for the use of the state botanical collection or plants or plant specimens at the botanic gardens or managed land for scientific or reference purposes, consistent with accepted international practice;"

69. The functions and general powers of the Royal Botanic Gardens Board which was established by the Royal Botanic Gardens Act include conservation, protection, management and improvement of the RBG and plants and the State botanical collection and the National Herbarium, the carrying out of botanical and horticultural research and surveys of vegetation, increasing public knowledge and awareness of the RBG and the State botanical collection and of plants and plant communities, the promotion of public enjoyment of the RBG, conservation of threatened plants and provision of advice and assistance to managers of other botanical gardens and public gardens in Victoria.

70. The specific powers of the Board for the carrying out of its functions are set out in Section 14 of the Royal Botanic Gardens Act. Again, in my view they do not relate to activities connected with criminal law or with the legal process of upholding or enforcing civil law or monitoring compliance with the law.

71. The Royal Botanic Gardens Regulations 1994 has as an objective to make provision for the care, protection, management and improvement of the Botanic Gardens, Melbourne and Cranbourne and other land managed by the Royal Botanic Gardens Board. It enables the Board to set aside areas of the RBG for certain purposes and to regulate entry and the parking of vehicles and to request persons who it believes have committed an offence against the Regulations to leave the Gardens. The Regulations also set out a number of offences connected with such matters as use of amenities, protection of flora and fauna and general offences, and the penalties for those offences. Again, in my view, such activities do not relate to the administration of the law.

72. I have considered whether the authorisation obtained from the Department under Section 28A of the Wildlife Act authorised Dr Moors or Mr Krstic, Mr Barley and other people under their supervision to engage in or in connection with law enforcement or in relation to the enforcement or administration of the law. In my view it did not.

73. In view of my findings the material is not exempt under either of the sections claimed, Section 30 and Section 31(1)(e).

74. For similar reasons the material referred to in paragraph 26(c) of these reasons, for which exemption is claimed, does not fall within Section 31(1)(e). Exemption is also claimed for that material under Section 34(1)(b). Section 34(1) applies if the disclosure of the material in question would disclose information acquired by an agency of the relevant nature from the relevant source, whether or not the document originated from the agency or the commercial undertaking (see Re Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106). I accept that the material constitutes information acquired by the RBG from Mr Krstic. I am also satisfied that the information relates to matters of a business or commercial nature. I not satisfied however that disclosure of the information would be reasonably likely to expose Wildpro to disadvantage. On its face the material does not appear to be of the commercially sensitive which was of concern to Mr Krstic in his evidence. In particular, it does not reveal the type of equipment, technology, ammunition tactics or specifications used by Wildpro. Release of the material would not, in my view, erode the competitive advantage and expertise of Wildpro. Accordingly the material is not exempt.

PUBLIC INTEREST - SECTION 50(4)

75. In written submissions filed on behalf of the applicant, Mr Richter stated that the primary purpose for which release was sought was to allow the public and, in particular, the scientific community, to assess the impact of the proposed reduction in bat population on the species' existence and to be satisfied that the proposed procedures did not involve unjustifiable cruelty to the bats or a breach of any State or Commonwealth legislation which regulated the treatment of animals. Release of the material which I have found to be exempt will not in my view assist this purpose.

76. It was contended for the applicant that there is a public interest in ensuring that the Victorian Government and the respondent are accountable and open to scrutiny when making decisions relating to the welfare of the bats. However, as Deputy President Macnamara observed in dealing with a similar submission in Birneauer and Davey v Inner and Eastern HealthCare Network (unreported 1998/08205 24 August 1999 at page 23), if such a submission was accepted:

"the whole of the rest of the Freedom of Information Act including all the exemptions except those specifically excluded from the operation of s.50(4), namely the Cabinet exemptions and the personal affairs exemptions would become irrelevant. The Freedom of Information Act as a whole represents an attempt to balance competing policies. A primary commitment to disclosure of information generated by public agencies tempered by a right to retain certain (exempt) material controversial with the ultimate gloss of an ability vested in this Tribunal to override most of the exemptions in the public interest".

The following passage from the judgment of Phillips JA in Hulls case is also relevant (at p.381):

"Now, while there may well be a public interest in the disclosure of documents held by Ministers and agencies (as was recognised by Mason CJ in Esso Australia Resources at 31-32), it is the FOI Act which is Parliament's express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight. Section 50(4) contains `an override' in specific terms and, as already mentioned, that sub-section cannot be construed as authorising the Tribunal to grant access to a document which is otherwise exempt merely if the Tribunal is of opinion that it is in the public interest that the document be released".

77. Whilst I recognise the need for the accountability of the RBG and the Victorian Government and the public interest in the dissemination of information, I am not satisfied in the present case that the public interest in favour of disclosure of the exempt material is so strong as to demand that access be granted.

78. Mr Richter sought an order for costs on behalf of the applicant pursuant to Section 109 of the Victorian Civil and Administrative Tribunal Act. He made the following submissions in support of that application:

"(a) The Respondent has engaged in a course of staged release of the documents sought which has resulted in a climate of distrust which has required the Applicant to continue to pursue this Application for Review in circumstances in which the timely and open release of documents might have allowed this matter to be resolved well prior to the hearing date.

(b) The chronology of events and the staged release of material is set out in Appendix A to these submissions. In particular, it was not until 18 January 2002 that an edited version of the Operational Plan was released.

(c) The making of a threat of an application to strike out the application for review on the basis of an alleged contempt is vexatious and intimidatory and necessitates vigorous pursuit of the application for review.

(d) By its letter of 30 January 2001, the Respondent offered to settle this matter if a limited amount of further information were released to it. This offer was made without the benefit of knowing what was contained in relevant documents and in the climate of distrust created by the Respondent's conduct. That request was rejected.

(e) In view of the conduct of this matter, including the clear failure to comply with the Tribunal's orders relating to the filing of documents as well as the Respondent's attempt to intimidate the Applicant, it is submitted that the Applicant is entitled to recover its costs incurred in this maters whether or not further information is ordered to be released by the Tribunal."

79. Section 109 of the Victorian Civil and Administrative Tribunal Act states as follows:

(1) Subject to this Division, each party is to bear their own costs in the

(2) At any time, the Tribunal may order that a party pay all or a specified

part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under sub-section (2) only if satisfied

(a) whether a party has conducted the proceeding in a way that

unnecessarily disadvantaged another party to the proceeding by conduct such as-

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties,

including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

80. Having regard to the matters set out in Section 109(3) of the Victorian Civil and Administrative Tribunal Act I am not satisfied that an order for costs in favour of the applicant should be made in these proceedings. The release by the respondent of most of the withheld material over a period of time is not a matter which, in my view, justifies an order for costs against the Respondents in the circumstances of this case. I accept that if the Respondent had released that material at the time of its initial decision, or at the internal review stage, the applicant may not have incurred the costs it did.

81. In this regard I have had regard to the fact that Section 16 of the FOI Act states that agencies "shall administer this Act with a view to making maximum amount of Government information complete and inexpensively available to the public". However, an adjudication of the matter was still required (and costs incurred) concerning portions of the withheld material, and the Respondent's decision was ultimately upheld in relation to some of that material.

82. In my view, the open offer made on behalf of the applicant on the 30 January 2002 is not of great relevance to the issue of costs having regard to the fact that the applicant was not totally successful in its application for review. In particular, the tribunal maintained the exemption in relation to part of the material sought in the open offer.

83. The making of an application by the respondent under Section 75 of the Victorian Civil and Administrative Tribunal Act was not, in my view vexatious, notwithstanding it was unsuccessful. Whilst it is arguable that the application was contrary to the spirit of the FOI Act I am not convinced that it intimidated the applicant. Neither do I accept Mr Richter's submission that the seriousness of that application was such that it required that the applicant be represented by senior counsel.

84. The application was disposed of relatively quickly and easily. The time spent by the parties and the Tribunal in relation to the application did not seriously prolong the hearing of the application for review in that the application and the application for review were heard in less than one day, notwithstanding that two days had been originally allocated for the hearing.

85. In relation to Mr Richter's submission that the respondent's failure to comply with the Tribunal orders as to the filing of documents justified an order for costs, I did not form the view, on the material before me, that the applicant was unnecessarily disadvantaged as a result of that failure as required by s.79(3)(a) of the VCAT Act.

86. There are no matters in this case which persuade me that the provisions of s.109(1) of the VCAT Act should not be applied. Accordingly I make no order as to costs.