[2004] VCAT 1194

1 By letter dated 7 November 2002 Craig W J Minogue ("the applicant") sought from the Department of Justice ("the department") access to, and a copy of, every operational instruction for Port Phillip Prison ("the prison") which had been endorsed by the Office of the Correctional Services Commissioner at the date the application was received.

2 At the time the application was made, the applicant was a prisoner at Port Phillip Prison. He is now a prisoner at Barwon Prison.

3 On 14 January 2003 the department made a decision in response to the application. It decided to refuse access to certain of the documents sought by the applicant, as being exempt documents, and granting access to the balance of the documents, but in a form different than that sought by the applicant. The applicant had sought copies of the operating instructions. The department decided to offer access by way of making them available for inspection in the Port Phillip Prison library.

4 On 14 February 2003 the applicant sought internal review of the department's decision. On 23 March 2003 the review officer concurred with the original decision.

5 On 14 May 2003 the applicant applied to the tribunal to review the decision made by the department to deny the applicant copies of the non-exempt operating instructions.

6 This case does not involve the question of whether access should be given to operating instructions concerning security protocols at Port Phillip Prison. Operating instructions of this character are exempt documents under the Act. Rather the case turns on the form of access which is to be provided in relation to non-exempt parts of the operating instructions. In total there were 92 operational instructions for the Port Phillip Prison. Eight of those instructions were held to be exempt from access under section 38 of the Act; and the applicant does not contest this holding.

7 In respect of the balance of the operational instructions, the applicant seeks access by way of a copy. The department refused access in that form, but agreed to provide access by way of inspection at the prison library. This decision was made on two bases. First, it said that to grant access in the form of a copy would interfere unreasonably with the operations of the department. Second it said that to grant access in the form requested by the applicant would involve an infringement of copyright subsisting in Group 4 Correction Services Pty Ltd ("Group 4"), being a person other than the State. Subsequently the department argued that to grant access in the form of a copy would not be appropriate having regard to the physical character of the document, it being a loose-leaf document the subject of constant updating.

8 At the hearing the applicant made it clear that he would be satisfied with either a paper copy of the instructions or a CD ROM copy.

Freedom of Information Act 1982

9 The Freedom of Information Act 1982 ("the Act") is a broad ranging Act, which binds the Crown, and which may be used by any member of the public, including a prisoner.

10 It is desirable to set out certain key provisions of the Act. Section 3 sets out the object of the Act, and is relevant as to the manner in which the Act should be interpreted.

3 Object of Act

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable costs, the disclosure of information.

11 Section 13 of the Act provides that, subject to the Act, every person has a legally enforceable right to obtain access, in accordance with the Act, to a document of an agency, other than an exempt document. For the purposes of the Act, the department is an agency.

12 Section 16 of the Act provides that agencies shall administer the Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.

13 Section 23 of the Act relates to forms of access. Because this section is critical to the current proceeding, it is desirable to set it out, not fully, but in some detail.

(1) Access to a document may be given to a person in one or more of the following forms -

(a) a reasonable opportunity to inspect the document;

(b) provision by the agency or Minister of a copy of the document;

(c) in the case of a document that is an article or thing from which sound or visual images are capable of being reproduced, the making of arrangement for the person to hear or view those sounds or visual images; or

(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document; or

(2) Subject to this section and to sections 19 and 25, where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the applicant -

(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his functions, as the case may be;

(b) would be detrimental to the preservation of the document or having regard to the physical nature of the document, would not be appropriate; or

(c) would involve an infringement of copyright subsisting in a person other than the State, or, in the case of an application to a council, other than the council -

access in that form may be refused and access given in another form.

14 Section 50 of the Act essentially provides that an applicant may apply to the tribunal for the review of a decision refusing to grant access to a document in accordance with a request. Section 55(2) then provides that in such proceedings, the agency to which the request was made has the onus of establishing that its decision was justified or that the tribunal should give a decision adverse to the applicant.

15 It is apparent that section 23(2) confers a prima facie right upon an applicant who requests a document in a particular form to be given access in that form. That right is qualified by sections 19, 23(3) and 25 of the Act. But in the present case only section 23(3) is relevant. This confers a power on an agency to refuse to provide access in the form requested and to provide access in another form, in certain circumstances.

16 Mr Pizer and Mr Hibble of counsel, who appeared on behalf of the applicant, contended that the power in section 23(3) was both conditional and discretionary. They submitted that the power was conditional, in the sense that it could not be exercised unless the agency was satisfied that at least one of the "exceptions" in section 23(3)(a) to (c) applied. And they also contended it was discretionary, in the sense that the agency may nevertheless decline to exercise the power, even if it was satisfied that at least one of those exceptions applied. Hence they said that the respondents bore the onus of persuading the tribunal that at least one of the exceptions applied and, further, as a matter of discretion the power to grant access in another form ought be exercised.

17 The department claimed that providing the applicant with a copy of the instructions, whether in paper form or CD ROM form, would trigger the following "exceptions" and make it inappropriate that access be provided:

* it would involve an infringement of copyright subsisting in Group 4;

* it would interfere unreasonably with the operations of the department; and

* it would not be appropriate having regard to the physical nature of the document.

18 The department also submitted that if one or other of the exceptions applied there was no statutory obligation to give access to the document in the form requested by the applicant, but access could be given in another form. In this respect, the department submitted that the word "may" in the last part of section 23(3) of the Act was not used in the sense of conferring a discretion, but was used in the sense of indicating an outcome. In this respect, the department pointed out that section 45(1) of the Interpretation of Legislation Act 1984 did not apply to the Freedom of Information Act 1982. Reference was also made to Re Forster and Latrobe University (1990) 4 VAR 138, but, in my opinion, this decision was not really address the point.

19 In my opinion, there would appear to be merit in the submission made by the department concerning the existence of a discretion. Paragraphs (a) and (b) of section 23(3) ultimately turn upon a judgment, by reason of the inclusion in those paragraphs of the words "unreasonably", "performance" and "appropriate", which are all elastic words involving some form of assessment. It might be thought to be incongruous to make a judgment which would make one of the exceptions applicable and then to exercise a discretion so as to override the effect of the exception. However, for reasons which follow, it has not been necessary to finally determine this question.

20 Although the applicant was a prisoner at Port Phillip Prison at the time the request was made, at the time of the hearing he was a prisoner at Barwon Prison. He has been a prisoner for a total of about 18 years. He claims to be committed to the protection and preservation of prisoners' rights. Since he has been in prison he has written a number of articles about this topic and he has undertaken extensive studies. On the basis of his written work, he appears learned and intelligent.

21 The operational instructions for a prison are the administrative guidelines used to govern the prison. These instructions outline the processes that prison officers should follow and provide a standard expected to be followed by prisoners.

22 The prison system in Victoria has been partially privatised. Some prisons, such as Barwon Prison, are operated by the department. Other prisons, such as Port Phillip Prison, are operated by a private company, under contract (or sub-contract) with the department. Group 4 is a private company which operates Port Phillip Prison.

23 In July 1996 an agreement was entered into between the then Minister for Corrections and Australian Correctional Facilities Pty Ltd ("ACF") for the provision of correctional and related services. ACF then subcontracted the provision of these services to Group 4, by an operational deed also dated in or about July 1996. Under that deed, Group 4 is accountable to the department for the safe and secure management of the prison, in accordance with the obligations set out in the agreement.

24 One of the obligations of ACF under the Prison Services Agreement was to prepare and maintain an operational manual, to be endorsed by the Secretary of the department. As Group 4 took on the operational responsibility under the agreement it became responsible for the creation and maintenance of the manual. This manual, which is also known as the operational instructions, is required to be consistent with provisions of the Corrections Act 1986 and regulations made under that Act.

25 During 2002 the operational instructions were comprehensively redrafted by Group 4. The instructions are kept in loose-leaf form, as well as in electronic form, suited to regular updating. This task of regular review is undertaken by Group 4. For example, in 2002 and 2003, in addition to the redrafting exercise, the instructions were amended on about 56 occasions. On each occasion the amendment was required to be forwarded to the Correctional Services Commissioner for endorsement. Once endorsed, Group 4 then took steps to ensure that all known copies of the operational instructions were updated. Although the precise number of sets has changed from time to time, typically there have been about ten sets. At the time of the hearing there were two sets held by the department and eight sets held at the prison, including a copy in the library. There has also been an electronic copy of the current operational instructions, presumably on a server which is available to computers in the prison networked to that server.

26 Group 4 has asserted copyright ownership in the operational instructions. The Correctional Services Commissioner, Mr Kelvin Anderson, gave evidence that the department did not wish to infringe that copyright. Group 4 has also refused permission to the department to make a copy of the operational instructions in response to the applicant's request for access.

27 Mr Anderson gave evidence that the operational instructions could be conveniently accessed by prisoners of Port Phillip Prison in the prison library. He said that, when the applicant was in Port Phillip Prison, he had access to the library for over 20 hours a week. Apparently this was more generous access than that provided to most other prisoners. The applicant contested the convenience of the provision of access at the library. For example, evidence was put before the tribunal to the effect that the library was often closed, sometimes due to prison lockdowns. Further, it was said that more regular access to the operating instructions was necessary than could be provided by library access by reason of the important role the instructions play in prisoner welfare. More relevantly, the applicant submitted that the form of access proposed was quite inappropriate because he was no longer a prisoner at Port Phillip Prison, but was now held at Barwon Prison, so he could not access the document.

28 The first question I must address is whether the form of access requested by the applicant (that is, a copy of the document) would involve an infringement of copyright subsisting in a person other than the State. This question must be resolved by reference to the provisions of section 23(3)(c) of the Act and the Commonwealth Copyright Act 1968.

29 The parties were in agreement in relation to certain aspects of this question. It was agreed that copyright in the operational instructions (both as individual instructions and as a compilation) did subsist in Group 4. It was agreed that Group 4 had asserted its copyright over the instructions and had refused permission to the department to make a copy in response to the applicant's request for access. But it was said by the applicant that the department would not infringe Group 4's copyright in the instructions by providing a copy to the applicant as:

* Group 4 was not "a person other than the State" within the meaning of the expression in section 23(3)(c);

* the department had an implied licence to make and provide that copy; and

* section 183 of the Copyright Act permitted the department to make and provide that copy.

30 On its face, it would seem obvious that Group 4 is a person other than the State. But the applicant submitted that the word "State" should be interpreted in its context to mean "an organisation or institution of government in accordance with the conceptions of ordinary life", relying upon Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219, at 229-231. On this basis, it was said, the word "State" in section 23(3)(c) embraces not just Victorian government departments but also agencies, instrumentalities and agents of the State of Victoria.

31 I agree that the word "State" should be given a broad interpretation, not only to avoid anomalies in relation to agencies such as Melbourne Water, but also to advance the purposes of the Act. The purpose of the exception in section 23(3)(c) would seem to be to protect the copyright owned by true third parties, that is, third parties which are not State government departments, agencies or instrumentalities. In this context, I use the word "agencies" to mean organs of government, which are not necessarily part of the Crown in the right of the State of Victoria.

32 The applicant contended that Group 4, the copyright owner in the present case, was an agency of government, because it is an agency under section 9F of the Corrections Act 1986. That provision relevantly provides:

The Freedom of Information Act 1982 applies to a contractor in its capacity as a provider of services under this Act or to a sub contractor in its capacity as a manager of a prison or police gaol under a sub contract agreement as if -

(a) the contractor or sub contractor (as the case requires) were an agency within the meaning of that Act;

Group 4 is a sub contractor which manages a prison under a sub contract agreement. Hence, by reason of section 9F of the Corrections Act, the Freedom of Information Act applies to it "as if the sub contractor were an agency". But this is in the nature of a deeming provision, or a legal fiction; it does not mean that Group 4 is an agency of government or an organ of government. Rather its true character is that of a contractor (or, more accurately, a sub contractor) to government and, as such, it is a person "other than the State". The fact that it may be an agent of the government for some purposes does not make Group 4 "the State"; anymore than an estate agent, appointed to sell government land, would be "the State".

33 The applicant submitted that, statutory permission aside, a copyright infringement is only established if the conduct in question is engaged in "without the licence of the owner of the copyright" (section 36(1) of the Copyright Act). Further, he said the copyright owner bears the onus of establishing the absence of a licence: Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88. In this context the word "licence" means no more than permission or consent, which may be express or implied. In the present case, the applicant pointed to various aspects of the contractual arrangement between the department and private correctional companies in support of the proposition that it was always intended that the operational instructions be supplied to the department to ensure that they could be subjected to appropriate scrutiny.

34 The department pointed to clause 82 of the agreement between the department and ACF, which it said contained an express term which was inconsistent with there being any implied licence for the department to copy the instructions. Clause 82 is in the following form:

If this Agreement is terminated by the Minister then the Contractor shall with effect from the date this Agreement is terminated grant to the Minister and all persons authorised by the Minister a licence to use and reproduce in the operation of the Facility (including any requisite refurbishment, reconstruction or extension of or to the Facility) all of its rights (including without limitation all copyright and future copyright) title and interest in and to all the approved or endorsed documents or other materials or information prepared by or on behalf of the Contractor pursuant to this Agreement provided however that the licence granted pursuant to this clause 82 shall not apply where this Agreement is terminated as a result of a Part 1 or Part 2 Default and the Contractor removes the Works or the Facility as the case may be, within a reasonable time after the termination of this Agreement but in no event more than six months after the date of such termination.

35 For present purposes, clause 82 amounts to this: if the agreement is terminated the department may reproduce documents that are the subject of copyright. Thus it covers documents other than the operating instructions. It is also directed at different circumstances than those currently under consideration. It is directed at a time when the contractual relationship has ceased. It is not directed at the copying of Group 4 documents whilst the contractual relationship subsists. In my opinion, it is not inconsistent with there being an implied licence of the type contended for by the applicant.

36 I also regard the fact that Group 4 has refused permission for the operational instructions to be copied to be irrelevant to the question of whether there was an implied licence. That refusal might be a matter of common convenience between the department and Group 4 in the present case. Whether or not there is an implied licence must be determined by reference to the contractual relationship which operated at the time the relevant document was created, not at a later time when it was subject of a request. Further, applicable contractual provisions must be interpreted in the political, social and legal context in which they were made and were intended to operate.

37 In Beck v Montana Constructions Pty Ltd (1963) 80 WN(NSW) 1578 Jacobs J enunciated a principle concerning the circumstances where an implied licence would arise in relation to a document the subject of copyright. This principle has been followed and applied in Australian courts since that time and ought be regarded as settled. Indeed, in Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 37 IPR 542, Merkel J of the Federal Court of Australia expressed the view that the licence considered in Beck is one which is now implied by law to a particular class of contract.

38 The principle enunciated in Beck is best encapsulated by the following passage of Jacobs J, at pages 1581 to 1582:

It seems to me that the principle involved is that the engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission or consent or licence in the person making the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement.

Of course, as pointed out by Beaumont J in De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292, at 304, the application of the Beck principle will depend upon the particular circumstances.

39 It is to those circumstances that I now turn. The prison services agreement entered into by ACF states that it is entered into for the benefit of the public and prisoners. Objectives of the agreement include providing proper care, treatment and rehabilitation to prisoners and providing the public and prisoners with prison services that meet the requirements of government policies. Clause 4.2 of the agreement requires the contractor to prepare an operating manual, to be endorsed by the secretary of the department. Clause 42.1 then requires that the operating manual must be complied with. It seems clear enough that it was the intention of the parties, at the time the agreement was entered into, that the operating manual would be subject to scrutiny by the department.

40 Not only is the provision of correctional services a core function of government, but also it is a notoriously controversial one. No private contractor entering an agreement with a government to operate a prison could reasonably contemplate that the performance of the contract would not be subject to considerable public scrutiny. By "public" scrutiny I do not just mean departmental scrutiny; I also include scrutiny by members of the public, the media, members of parliament, legal groups and prisoners. Section 9F of the Corrections Act 1986, which deems a prison contractor or sub-contractor to be an agency for the purpose of the Freedom of Information Act underscores this point.

41 Applying the principle enunciated in Beck, the engagement of ACF (and, subsequently, Group 4) for the purpose of managing the prison and, inter alia, preparing the operating manual implies a permission that the department may use the operating manual, including making copies, for the purpose of carrying out its powers and fulfilling its duties as a department. I find that if a question had been raised during the negotiation of the agreement along these lines: "will the department be permitted to make a copy of the operating instructions to fulfil any duties it may have to provide access to non-exempt documents under the Freedom of Information Act 1982", then the answer would have been "yes".

42 In my opinion, the department has not satisfied the onus of establishing that the department's decision to refuse to provide a copy of the operational instructions, because this would involve an infringement of copyright subsisting in Group 4, was justified. Rather, I accept the contentions put forward on behalf of the applicant that the purpose and nature of the instructions, as well as the contractual requirements that they be subject to the endorsement of the department, carries with it the necessary implication that the department could make a copy of the instructions for the purpose of carrying out its statutory powers and obligations, including obligations under the Freedom of Information Act.

Section 183 of Copyright Act

43 Section 183(1) of the Copyright Act relevantly provides that the copyright in a work is not infringed by a State doing any of the acts comprised in the copyright if this is done "for the services of the ... State". That expression is not defined. The applicant contended that it should receive a wide interpretation so as to cover any activity related to the purpose of government, including the activity of providing a copy of a document to a member of the public in response to a request.

44 In Pfizer Corporation v Ministry of Health [1965] AC 512, at 535, Lord Reid said:

It appears to me that the natural meaning of use for the services of the Crown is use by members of such services in the course of their duties. Sometimes, as in the case of the armed services, that use will or is intended to benefit the whole community: sometimes such use will benefit a particular section of the community: and sometimes it will benefit particular individuals. I cannot see any good reason for making a distinction between one case and another. It is true that the proliferation of government services may have impaired the protection given to inventors by patents, by increasing the number of cases in which patents can be used by the government without the consent of the patentee. But if that has created any legitimate grievance it is for the Parliament to provide the remedy.

In this case a minority view was that the expression had a narrower meaning. Lord Wilberforce thought the majority view was "alarmingly wide" and "made a formidable incision into the supposedly valuable monopoly right to which the Crown has granted the patentee" (at 567). He thought the expression was confined to use by the Crown or its servants and it must be for the benefit of the Crown or its servants (at 568).

45 There appears to be no definitive view as to whether the decision in Pfizer applies in Australia. The matter was considered, but not decided in Australasian Performing Right Association; re Australian Broadcasting Commission [1982] FCA 255; (1982) 45 ALR 153, at 160, a case in which it was concluded that the Australian Broadcasting Commission was not the Crown. In Stack v Brisbane City Council [1995] FCA 1427; (1994) 32 IPR 69, at 84, Cooper J of the Federal Court of Australia said that the law in Australia is no narrower than the minority view expressed in Pfizer. This approach was sufficient to determine the case before Cooper J. Sam Ricketson and C Creswell in The Law of Intellectual Property: Copyright, Designs and Confidential Information at [12.275] express the view that there seems no reason why the words "for the services of the Commonwealth or State" should not receive a wide interpretation so as to cover any activity related to the purpose of government. And J McKeough and A Stewart expressed the view in Intellectual Property in Australia (2nd ed, 1997), at page 188, that the expression "for the services of" the Crown covers, at the very least, activities by government employees performed in the ordinary course of their employment. The authors give a number of examples which would fall within this class, including "copying in response to requests from members of the public for information".

46 The department clearly falls within the concept of "the State". The correctional function of government is obviously, as well as historically, a foundational aspect of government. But it could be said that the copying of a document to be given to a member of the public is not in the same category as the copying of a document for use by departmental officers, for example in the course of scrutinising whether an operational instruction is appropriate. But, on reflection, I have concluded that the copying of such a document is for the services of the State whether it is for either purpose.

47 Freedom of information legislation is essentially legislation about governance and governance practices. It now forms an important part of our democratic framework, by promoting knowledge about the affairs of government and about governance practices. I am sure that many government agencies would question whether the copying of a document to satisfy a freedom of information request serves the purposes of their agency or of government, or, to use Lord Wilberforce's language, provides a benefit to government. But I think it can now be said that freedom of information legislation serves the purpose of good governance. It is in this sense that it also serves the State, which has a legitimate and proper interest in good governance.

48 The department submitted that if section 183 of the Copyright Act was to be interpreted in this way, it would render section 23(3) entirely otiose; and that result cannot have been intended. This is not strictly correct, as Mr Pizer observed in oral argument, as some bodies the subject of freedom of information requirements will not be the State for the purpose of section 183. Nevertheless it remains true that the operation of section 23(3)(c) of the Act would be largely negated by giving a broad interpretation to section 183 of the Copyright Act.

49 Section 23 of the Act seems to be based upon section 20 of the Freedom of Information Act 1982 (Commonwealth). The Commonwealth provision equivalent to section 23(3)(c) enables access in a particular form to be refused if the giving of access in that form:

(c) would, but for this Act, involve an infringement of copyright (other than copyright owned by the Commonwealth, an agency or a State) subsisting in matter contained in the document, being matter that does not relate to the affairs of an agency or of a department of State. [My emphasis.]

It can be seen that the Commonwealth provision is narrower than that which was included in the Victorian Act.

50 I am not aware why the Victorian provision did not faithfully follow the Commonwealth provision. It is possible that the different wording may have had something to do with a different appreciation of the role of section 183 of the Copyright Act; but this is no more than speculation.

51 Ultimately I think the answer must be found in the words used in section 23(3)(c) of the Act and in section 183 of the Copyright Act: in particular the reference in the former to "an infringement of copyright" and in the latter to "the copyright in a ... work ... is not infringed by ... a State ... doing any acts comprised in the copyright if the acts are done for the services of the ... State". Thus if a document, in which copyright subsists in a person other than the State, is copied for the purpose of satisfying a freedom of information request this act, being an act done for the services of the State, does not attract the exception in section 23(3)(c) because it does not involve any infringement of copyright.

52 My conclusion could be regarded as being consistent with the minority view in Pfizer, if a broad view is taken as to what is for the benefit of the State. But, in my opinion, the majority view expressed by Lord Reid in Pfizer is correct. The minority view seems to overlook the requirement in section 183 that the State enter into terms for doing the act comprised in the copyright. In some cases this may mean that substantial compensation must be paid to the copyright owner. Where a provision in an Act infringes a private right, but requires compensation to be paid, it is not to be read down in the same way as it would be if no compensation is provided for: compare Coco v R [1994] HCA 15; (1994) 179 CLR 427, 435-6 and Hutchison 3G Australia Pty Ltd v Director of Housing [2004] VSCA 99. Further, the minority view in Pfizer relies upon an old-fashioned and fixed notion as to what is truly a government function; a notion that seems inconsistent with the ebb and flow of government involvement in the economy and society and the moving tide of governance practices. It is also inconsistent with cases such as Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219.

53 The department also relied upon the decision of the High Court of Australia in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1. But this was a case about the provision of a service, in the context of anti-discrimination legislation, and does not assist in the interpretation of the words "for the services of the State".

54 The department contended that the provision of a copy of the operating instructions, whether in paper form or on CD ROM, would interfere unreasonably with its operations.

55 I agree with the submission made by the applicant that, for the exception in section 23(3)(a) to apply, both of the following must be satisfied, namely:

* first, the form of access requested by the applicant would interfere with the operations of the agency; and

56 However I do not agree with the applicant's submission that the interference must be caused by the actual provision of access in the form requested by the applicant (that is, by the work involved in providing access in that form) and not by any feared future consequences of providing access in that form. There is no doubt that the interference contemplated by section 23(3)(a) would include the burden of providing access in a particular form, but, having regard to the language used, there is no reason to draw the line at that point. The argument that a narrow interpretation would further the objects of the legislation is not sufficient to overcome the broad nature of the actual words used.

57 The word "unreasonably" requires one to look at the extent and nature of the interference with the operations of the agency and, also, the extent to which such interference is appropriate having regard to other considerations, including ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices. In other words, to determine whether interference is unreasonable requires one to look at both disbenefits and benefits. This will involve the balancing of interests: compare Page v Metropolitan Transit Authority (1988) 2 VAR 243, albeit in a different context.

58 The department led evidence of a number of perceived disbenefits which would arise if paper or electronic copies of the operating instructions were provided to the applicant. But it also pointed to the lack of any real benefit to the applicant, bearing in mind that he was no longer located at Port Phillip Prison and was not likely to return there, and thus was not a person likely to be affected by the operating instructions. There is force in this contention. The applicant is now in no different a position than a general member of the public or a prisoner advocacy service. He cannot say that his day to day life is governed by the operating instructions.

59 On the other hand, the matters advanced by the department in support of its contention that the provision of a copy of the instructions would interfere with its operations were not overwhelming, at least in respect of the provision of a CD ROM copy of the instructions. In this respect, it would be possible to make a CD ROM copy of the instructions, in PDF form, which could not be readily altered and which could be clearly marked, on each page, that it was applicable only on a certain date and was unlikely to be current.

60 The Correctional Services Commissioner gave evidence that providing access to the operational instructions by way of a personal copy would be reasonably likely to have a deleterious effect on the good order and management of Port Phillip Prison and could add a potential risk to the welfare of prisoners. Some of the reasons he advanced for this opinion related to the provision of a paper copy of the operational instructions: for example, he pointed out the risk of combustible material in the applicant's cell and a commensurate fire hazard risk. But other contentions are equally relevant if the form of the copy provided is a CD ROM. For example, he said that if the applicant were to be granted his own set of the operational instructions, it would be difficult to deny the same to any other prisoner at the Port Phillip Prison who wanted them. This seems inherently probable, having regard to the strong notion of comparative justice that pervades the criminal law and the correctional system.

61 The Correctional Services Commissioner also pointed out that the operational instructions would quickly become out of date and unreliable. It was said that this could lead to prisoners being given unreliable information as to the content of the operational instructions, which may cause prisoners to act inappropriately when given orders by prison officers that were in accord with the operational instructions. In this respect I accept his evidence that it would be impractical to provide a personal copy of the operational instructions to every prisoner and to keep the instructions updated from time to time. But, given this, I suspect that the degree of interference to the operations of the department that is likely if an outdated CD ROM copy of the operating instructions is provided to the applicant would be minor.

62 In another context I once commented that the fear of creating a bad precedent may be a relevant consideration in the making of an administrative decision: see Zerbe v City of Doncaster and Templestowe (1984) 2 PABR 101. However I pointed out that the principle would only operate if the decision would act as a precedent and if the decision would create a bad precedent.

63 In the present context, I hold that the impact of providing access in a particular form upon the making of future requests for documents under the Act, the handling of such requests, and the implications which flow from that, are relevant considerations in determining whether the form of access requested by an applicant would interfere unreasonably with the operations of an agency.

64 In their submission Mr Pizer and Mr Hibble argued that a decision to provide the applicant with a personal copy of the operating instructions was unlikely to create a precedent. They pointed to the lack of a "flood" of requests following the decision of the tribunal in Re Coburg Brunswick Community Legal and Financial Counselling Centre and Department of Justice (1999) 15 VAR 208 to grant access to contractual documents between the government and private correction companies. They also argued that, although the Correctional Services Commissioner may have a concern about the precedent effect, this has no factual basis. From my part, I must confess some difficulty in reaching a conclusion on this matter. It may depend upon having a deep understanding of prison culture. However the present circumstances, which relate to the operating instructions which govern day to day prison affairs, are not the same as those considered in the Coburg Brunswick case, which concerned contracts in relation to the privatisation of prisons. Popular culture has it that word passes quickly through a prison system and that concerted action by prisoners occurs from time to time, notwithstanding security protocols. Indeed, it was reported (but I must point out I have no evidence in relation to this) that when the position of Chief Justice of the Supreme Court of Victoria was advertised in the press last year there were some 300 odd applicants, most of whom were prisoners. Ultimately I have concluded that I should rely upon the evidence given by the Correctional Services Commissioner in this regard, having regard to his senior position and obvious knowledge of the prison system. This approach is consistent with the decision of Judge Fricke in Re O'Sullivan and Police Force of Victoria (1986) 1 VAR 171, at 178. Thus I find that, should the present application succeed, it is likely that a substantial number of prisoners would request their own personal copy of the operating instructions for the prison in which they are accommodated. It is also likely that they would repeat these requests from time to time to ensure they continued to receive updated copies. The present decision is likely to create a precedent.

65 If this application is allowed, but other subsequent applications are disallowed, this would unreasonably interfere with the operations of the department by impacting, in a negative way, on the perception of prisoners that the department dealt with inmates in an even handed way. On the other hand, if the effect of granting the present application was to require the department, in the interests of even handedness, to provide all prisoners who made a request with their own personal copy of the operating instructions, this would have a potential impact upon authority and discipline within the prison. Once again I accept the evidence of the Correctional Services Commissioner on this matter.

66 The Correctional Services Commissioner also gave evidence that he was concerned that if prisoners had their own set of the operational instructions this would have an adverse impact upon the good order of the prison. He gave as an example the possibility that a prisoner, having been duly directed to do some act, would refuse to comply with that direction, possibly on the basis of an out of date copy of the instructions. He said that some prisoners could be expected to use the operational instructions to try to intimidate or obfuscate prison officers in the performance of their duties, for example by engaging in arguments about the proper interpretation of them. He said this would undermine the authority of prison officers and damage relations between prisoners and prison staff. This evidence is difficult to prove empirically - or for that matter to disprove empirically - but I cannot ignore the qualifications and experience of the Correctional Services Commissioner. In the circumstances, I accept his evidence on these matters.

67 Mr Pizer emphasised the word "would" in section 23(3)(a) of the Act. He contrasted the use of this word with the use of the word "likely" in sections 31, 34 and 35(1)(b) of the Act. But too much can be made of the distinction. In both cases it is necessary for facts to be found, or inferences drawn, on the basis of some degree of probability. I doubt whether the degree of probability, or the standard of proof, is any different if the word "would" is used instead of the expression "is likely to". Certainly the use of the word "would" does not require the tribunal to be certain that the provision of a copy of the operating instructions to the applicant would interfere unreasonably with the operations of the agency. After all, "in this world nothing is certain but death and taxes" (Benjamin Franklin). It is sufficient to say that I am satisfied that the department has discharged the onus upon it to establish that the provision of a copy of the operating instructions to the applicant would interfere unreasonably with its operations.

68 Thus to allow the present application would be to create a bad precedent.

69 For these reasons, I find that the form of access requested by the applicant would interfere unreasonably with the operations of the department.

70 The department also relied upon section 23(3)(b) of the Act and contended that the form of access requested by the applicant, having regard to the physical nature of the document, would not be appropriate. Counsel for the department referred to the fact that the applicant was now accommodated at Barwon Prison, but I cannot see how this is relevant in this regard. The exception in section 23(3) turns upon the "physical nature" of the document, not circumstances concerning the person who seeks access.

71 The physical nature of a document obviously includes the type of document in issue, as well as its size. The definition of "document" in section 5 of the Act is broad and includes books, maps, plans, photographs, discs, tapes, and film. Indeed, it includes anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them.

72 The argument that was put forward by the department, that could properly be brought within the constraints of an argument about the physical nature of the document, amounted to the fact that it was a loose-leaf document and would quickly become misleading as it would not be updated. In this regard, if the form of the document was a CD ROM, containing images of pages in PDF form, rather than a paper copy, the same would apply.

73 The applicant contended that the fact that the document was a loose-leaf document was not a relevant consideration, as the question of the appropriateness of the form of access must be answered by reference to the time that access in the relevant form is to be granted. It was also said that the physical nature of the document only arose as a relevant consideration at the time that access is to be granted.

74 Ultimately the test posed by section 23(3)(b) is whether or not the form of access requested by the applicant would be, or would not be, appropriate. Such a test necessarily involves a judgment. The judgment must be made "having regard to the physical nature of the document". It would be unreal if the context of the matter could not be considered in deciding whether or not the form of access requested was appropriate.

75 But even considering the context, I am not satisfied that the department has demonstrated that, having regard to the physical nature of the operating instructions, it would be inappropriate to provide a copy, particularly a copy by CD ROM. All documents date. In the case of legal books it is common for the author to state, commonly in a preface, the date at which the book is current. In the case of loose-leaf publications, it is common for the relevant date to be stated on each page. Thus I do not conclude, having regard to the physical nature of the document and the context, that it would not be appropriate to provide the applicant with a CR ROM copy.

76 Assuming that there is a discretion to provide access to a document in the form requested by the applicant, notwithstanding that paragraphs (a) of section 23(3) has been established, I decline to exercise that discretion. I agree with the observation made by Justice Kellam and Deputy President Galvin in Re Coburg Brunswick Community Legal and Financial Counselling Centre and Department of Justice (1999) 15 VAR 208, at 230:

It is inherent in the democratic system that important issues of the nature of prisons and their management be publicly transparent so that there can be the best possible public understanding, awareness and if need be, debate.

But in this case the operating instructions were provided to the applicant whilst he was a prisoner at Port Phillip Prison, except for certain exempt instructions which are not in issue before me. I cannot see how the provision of a copy to the applicant, although possibly more convenient to him, will have any real impact upon the public transparency of Port Phillip Prison or its management.

77 In any event, the only ground in section 23(3) that I have found in favour of the department is the ground that the form of access requested by the applicant would interfere unreasonably with the operations of the department. Having reached that conclusion it would be incongruous to then exercise a discretion to require access to the document in the form requested by the applicant. This incongruity may not arise in the context of section 23(3)(c), but that is a matter for another occasion.