Consideration
58The tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) is to make the correct and preferable decision having regard to the material before it and any applicable "written or unwritten law" (meaning legislation or common law). It is well established that in considering an application for review, the tribunal is not confined to the material that was before the deciding agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
59The Act adopts a structured approach that requires decision-makers to:
(i) identify relevant public interest considerations in favour of disclosure,
(ii) identify relevant public interest considerations against disclosure,
(iii) attribute weight to each consideration for and against disclosure, and
(iv) determine whether the balance of the public interest lies in favour of or against disclosure of the government information (Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29].
60The public interest test must be applied in accordance with the principles set out in s 12 and s 15 of the GIPA Act. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. The test to be applied in regard to requests for access to government information is set out in s 13, which provides that "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". While s 12 establishes a general public interest in favour of disclosure and declares that there is no legal limit to any other public interest considerations favouring disclosure, the public interest considerations against disclosure are limited to those set out in the table to s 14 of the Act. Further, the Act contains provisions, such as ss 72 to 78, that mitigate the considerations against disclosure.
61From the list in the table, the respondent has relied throughout on two considerations: (1) that disclosure could reasonably be expected to prejudice the effective exercise by the department of its functions (item 1(f)), and (2) that disclosure could reasonably be expected to prejudice the conduct, effectiveness and integrity of the OC placement test conducted by or on behalf of the department by revealing its purpose, conduct or results, whether or not commenced and whether or not completed (item 1(h)).
62The requirement that disclosure "could reasonably be expected" to have the effect prescribed in one or more of the paragraphs in each clause is to be given its ordinary meaning and "require[s] a judgement be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous": see Nature Conservation Council at [146]. It does not require that the occurrence of certain events be likely in terms of any particular degree of likelihood, such as the balance (preponderance) of probabilities. It is a question of whether the expectation claimed is reasonably based: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252, [57].
63Ultimately, determining where the balance lies between the competing interests is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70]. The Act provides no set formula for calculating the weight of considerations, or for determining if one set of considerations outweighs the other. Any reasonable approach that follows s 15 principles seems to be acceptable. For while s 13 is expressed in terms of outweighing, any concept of weighing in this context can only be a metaphor, one that perhaps gives the process a greater aura of scientific measurement than it actually possesses. It is really a matter of placing identified considerations in order of priority or importance.
64In favour of the disclosure of the 2012 OC placement test is the general public interest consideration in favour of the disclosure of government information enacted in s 12(1), and specifically those set out in s 12(2)(a), "Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance", and s 12(2)(b), "Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public". The general public interest referred to in s 12(1) is a weighty consideration as it supports the presumption in favour of disclosure and the stated objects of the Act.
65The education of the young is undoubtedly an issue of public importance and one of the central concerns of State government. In the context of entry to OCs and SHSs, the competitiveness of the prescribed tests today is a matter of public concern, as are the test outcomes. At one stage DEC published, as a result of a GIPA request, statistics showing the first language background of children who were successful in such tests and that the majority were from non-English-speaking backgrounds. Ms Pollak said the department had ceased asking for that information. The explosive growth in the number of coaching colleges, for the most part operated by persons of Chinese or Indian background, it is also much discussed, raising equity issues in relation to parents who cannot afford the fees charged by the colleges. Research by Professor Kenny and others showed that while many of the claims made by the colleges for the results of coached students in tests were greatly exaggerated, there is a clear correlation between coaching and test outcomes for younger pupils, specifically those taking the OC and SHS tests. Researchers had concluded that coaching compromised the integrity of student ability tests and could have the result of placing pupils in classes where the more advanced material taught might surpass their abilities. More research was thought to be necessary on that point. Also of concern has been the effect of the hours spent in coaching in depriving children of opportunities for other developmental activities.
66The applicant and the respondent substantially agreed that the coaching explosion was undesirable and that anything that undermined the industry should be encouraged, especially in view of the misleading and deceptive advertising in which it engaged. As the tribunal has not heard the other side of that argument, however, it could not adopt such a sweeping proposition. Suffice it to say that coaching for student ability tests is a matter of public debate and controversy.
67How far publishing the 2012 OC question paper would advance that debate is a different matter, however. The respondent has already published three OC placement test question papers on its website and the methods it uses to prepare and administer tests is information that is in the public domain. The applicant submits that the publicly available test papers are too old to constitute useful guidance about current practices, but Ms Pollak's uncontradicted evidence is that the mathematics and general ability sections of the test paper do not change significantly in form and content over time and the main variations are in the English section, where there is some adaptation to take account of current topics.
68Ms Pollak also testified that on the basis of experience that if the 2012 paper were released, the colleges would claim that they had obtained them through their special links with the department; but that prediction is necessarily rather speculative. The applicant in her submissions discounted that possibility in any event, saying it was well known that the colleges asked pupils taking the test to memorize the paper and report back to the college on its contents. There was no evidence to support that submission, however.
69The tribunal is required by s 55 to take into account the applicant's personal circumstances as factors that may support disclosure. In this case Mrs Mannix's concern for her school-age children is relevant and clearly an important part of her motivation for bringing the present application. The respondent had, however, already supplied the applicant with a copy of the twins' 2012 OC test and is booklets, screenshots showing the raw marks Mark had received, guidance on how to interpret the screenshots, reasons why the question booklet could not be made available to her and other information about the difference between the OC test and curriculum-based tests.
70Ms Pollak's evidence was that the OC test is diagnostic and does not show strengths or weaknesses in various subject areas. As it measures ability, pattern recognition and inferential aptitude rather than performance, having the 2012 question paper would be of little assistance to the applicant because little is gained from knowing whether an answer is correct or not.
71The above remarks also apply to the public benefit example in s 12(2)(b), as in the present context the two subjects are largely co-extensive. The applicant also relied, although not strongly, on the consideration in s 12(2)(e), which deals with the revelation of official misconduct. There is no significant evidence to support that ground, however.
72With respect to the public interest considerations against disclosure, the respondent relies, as was noted above, on item 1(f) and item 1(h) in the s 14 table. The latter focuses on whether disclosure could reasonably be expected to prejudice the conduct, effectiveness and integrity of the OC placement test by revealing its purpose, conduct or results, whether or not commenced and whether or not completed. In the present context, that item covers the same ground as item 1(f), which accordingly need not be discussed separately.
73The main thrust of DEC's argument was that the 2012 OC test questions remain an important part of the contingency pool of questions from which a backup OC test could be assembled in the event of a pre-test security breach in relation to an OC test in the future. Disclosing the 2012 questions would not only diminish the contingency pool for a backup test, thereby prejudicing the department's risk management measures and its functions in operating effective and robust OC tests, but it would also prejudice the effectiveness and integrity of the OC tests as perceived by the general public. It could be seen as an indication that the respondent is unable to safeguard confidential information, which could cause loss of public confidence in the validity of the OC test results.
74The evidence showed that the preparation of the test question papers each year takes approximately 6 months of extensive work, trialling and checking in close collaboration with ACER at a cost of approximately $180,000. The applicant challenged that cost estimate, pointing out that the Department expended a total of over $2.2 million on the OC and SHS tests over a year, but there need be no necessary inconsistency between those two figures, depending on what they included, and nothing in the evidence showed that either one was incorrect. Nor does that evidence establish that funds are available to develop a new test if a leak should occur or that a new test paper could be prepared in less than 6 months.
75Ms Pollak said that the question papers had to remain confidential after the test because items might be reused in the case of a leak, in which event the administration of the test might be delayed by only about a month. Otherwise a new test paper would take six months to prepare. There were no resources to pay for a replacement paper in that situation or for a standby paper to be kept on hand in case of a leak. Post-test confidentiality also had to be maintained because the test measured ability, not performance. It is for that reason that no IQ test papers are published. Further, the respondent wanted to keep as much material as possible out of the hands of the coaching industry, which would use it to mislead the public. There were also copyright licensing problems relating to the English section of the paper that would make it impracticable to release more recent papers.
76The applicant submitted that if the nature of the test was such that it could not be studied for, releasing the 2012 questions would not influence outcomes even if the colleges made use of them. There was indeed a touch of ambivalence about the respondent's evidence on that point. But it is relevant that the applicant's own case relied on the research of Professor Kenny, which showed that coaching had a significant effect on success in OC and SHS tests and that intensive training in test-taking skills had compromised the integrity of some selective entrance examinations, particularly for younger pupils. The studies showed that test designers needed to note that effect and take it into account in test design. The respondent did not dispute those findings but cautioned that it is difficult to obtain reliable evidence on the subject because parents are not truthful about whether or not their children have been coached, and the fact that today even the brightest children are coached tends to skew the results in such a way as to suggest that coaching is more effective than it is in reality.
77The applicant contended that risk management needs could be handled in other ways and that the respondent had not shown why it needed to retain 10 years of tests. Items 1(f) and 1(h) were not about risk management in any event, and publication of the 2012 test would not prevent the department from conducting the test in the future. Any necessary copyright licences could be negotiated.
78The respondent did, however, explain that 10 years of tests were needed so as to enable questions to be sourced from different years, for security reasons. With a sufficient bank of past questions from which to prepare a substitute paper, the discovery of a pre-test leak might delay the holding of the test by only about a month. There were no resources available to prepare a standby paper. The argument that copyright problems could be overcome by negotiation is necessarily speculative.
79The applicant further submitted that item 1(h) could not apply because the test could still be conducted if a leak had occurred and mere administrative convenience carried little weight. The word "prejudice" in item 1(h) does indeed mean more than making something more difficult. It has been found to mean "impede or derogate from" or "to cause detriment or disadvantage": Hurst at [60]. But the evidence shows that if the established reserve of past questions was not available, a leak could result inter alia in a delay of six months in applying the test, even if the resources for preparing a new question paper were available, and would be likely to undermine public confidence in the OC and SHS testing process. Those and related consequences would indeed "impede or derogate from" the test and so constitute a significant detriment . They would thus amount to "prejudice" within item 1(h).
80The applicant rejected the respondent's argument that the 2012 question paper would give her little assistance over and above that which the material already released to her would provide, by submitting that s 15(d) made the possibility that she would misunderstand or misinterpret the significance of the question paper irrelevant. That appears to be correct, but the other limb of DEC's argument on that point was that the coaching colleges would make misleading or deceptive use of the information by, for example, claiming that they had obtained it through inside links with the department. That prediction was based on experience, but was also necessarily partly conjectural. But in such a case it would not be the test questions themselves that caused parents to be misled, but the additional "information" supplied by the colleges. The respondent's argument on that point is thus not made irrelevant by s 15(d).