Mr B Murphy QC and Mr A Burns of counsel (direct brief)

Mr Martin L Grinberg of counsel instructed by Christine Michaleas, Victoria

(Given orally at the hearing and subsequently revised.)

1 Pursuant to the Freedom of Information Act 1982 ("the Act"), the Shadow Minister for Transport, Mr Terry Mulder MP, seeks documents held by Victoria Police in relation to the thresholds that are used by police in operating speed cameras in Victoria. Certain documents were identified that are relevant to the request. However access to those documents was refused, both initially and on internal review. Mr Mulder has now made application to the tribunal to review the decision to refuse access to the documents.

2 Under section 13 of the Act, subject to the Act, every person has a legally enforceable right to obtain access to a document of an agency other than an exempt document. For the purposes of the Act the Victoria Police is an agency.

3 The Act specifies a number of circumstances in which a document will be an exempt document. One of these circumstances is where the document is a "law enforcement document" to which the provisions of section 31 of the Act apply.

4 Victoria Police rely upon the following two parts of section 31:

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

(a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance;

(d) disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;

5 Assuming that the police are able to demonstrate that the documents in question are exempt documents pursuant to section 31, another issue which arises is whether, notwithstanding that, the so called "public interest override" in section 50(4) of the Act should result in the document being released. Relevant principles in applying the public interest override are set out in Osland v Department of Justice [2005] VCAT 1648.

6 In support of its case that documents which disclosed speed camera enforcement thresholds were exempt documents, the police relied upon evidence from Raymond Neil Shuey and Robert Hastings. Mr Shuey is a former assistant commissioner of police. During the period November 1998 to July 2003 he was in charge of the Traffic and Operation Support Department of Victoria Police. He is a person with extensive experience and expertise in the field of traffic safety. Mr Hastings is currently an assistant commissioner of Victoria Police. Until a few days ago he was in charge of the Traffic and Transport Services Department of the police. He, too, has had considerable experience in the field of traffic safety.

7 The evidence of Mr Shuey and Assistant Commissioner Hastings supports a finding, which I make, that there is a significant relationship between vehicle speed and the likelihood of collisions, as well as the severity of collisions. Mr Shuey referred to research conducted at the Monash University Accident Research Centre which identified that a reduction in the enforcement tolerance from 10 kilometres per hour to 8 kilometres per hour would be expected to result in a 4.5% reduction in fatalities. The evidence also justifies a finding that a general reduction in vehicle speed would significantly reduce road trauma other than fatalities. As pointed out by Assistant Commissioner Hastings, this type of road trauma is a substantial social, economic and human problem for the Victorian community.

8 Both Mr Shuey and Assistant Commissioner Hastings gave evidence about strategies which are, and have been, applied by Victoria Police to effect a reduction in travelling speed on Victorian roads for the purpose of improving road safety. These strategies include education and other means of influencing driver behaviour by positive means; but they also include effective enforcement and sanctions to provide a disincentive to speeding and to the breach of road safety laws.

9 One of the means of enforcing speed limits is to use speed cameras. These devices use a speed measuring technology, such as radar or laser, to detect the speed of passing vehicles and then, if that speed is at a certain speed (which I will call a trigger speed) or above that speed, a camera takes a photograph of the vehicle which can then be used to enforce the law and penalise the motorist. Speed cameras can be used on roads where the speed limit is 60 kilometres per hour, or 80 kilometres per hour, or 100 kilometres per hour, or, indeed, any particular designated limit. However for a particular speed zone there is a legislative requirement that the trigger speed must be greater than a specified speed. For example, in a 60 kilometre zone, (and assuming that the detection method is radar), the number is 63 kilometres per hour. However, in addition to this mandated legislative threshold, the police have a discretion as to what speed should be the trigger speed. That is at the heart of the case. Should documents disclosing the trigger speed be released?

10 It is necessary to make a finding about community knowledge of trigger speeds. On the evidence, I find that the public is confused as to precisely what the trigger speed is in particular speed zones. This is best explained by reference to a road with a 60 kilometre per hour speed limit. Certainly motorists know that the law is breached if they exceed 60 kilometres per hour. They also know that if they are detected travelling at a speed no greater than 63 kilometres per hour then they will not get a speed camera ticket: because that threshold is mandated by law where speed cameras use radar as the speed detection method (as is the case in Victoria). Some members of the public would also believe that the trigger speed at which they will be given an infringement notice is not 64 kilometres per hour, but some higher number. They may believe this because they have been told this by media commentators or by members of parliament or by people quoting information that the police may have provided in the past. (In that category I would place the letter dated 28 January 2004 from Superintendent Alan McLean to Mr Trevor Bergman - to which I will refer subsequently as "the Bergman letter" - in which certain details were provided about the speed enforcement thresholds.) However other members of the public believe that the police do not apply any additional threshold to that which has been mandated by law. This belief has been influenced by statements from the police that are confusing and which have not revealed the full picture. For example, there is evidence that during his time as Assistant Commissioner in charge of Traffic and Transport Services, Assistant Commissioner Hastings made a statement or statements, or at least allowed an impression to develop, to the effect that the trigger speed in a 60 kilometres per hour speed zone was 64. In making this last finding I do not intend to criticise Assistant Commissioner Hastings. The police have followed the legitimate strategy of discouraging speeding by focusing the motorist's mind on the nominated speed limit; and have sought to convey the message that this is the speed limit that motorists must obey, otherwise they face the prospect of receiving an infringement notice. The communication policy that has been followed by the police, including Assistant Commissioner Hastings, has been designed to slow motorists down to the speed limit, with the intention of reducing road trauma.

11 If it was not for the Bergman letter, I would regard the question of whether the documents are exempt documents as straightforward and admitting only one answer. The disclosure of the documents would disclose the method used by Victoria Police in dealing with matters arising out of the breach of laws in relation to speed limits; and the disclosure of that method would be highly likely to prejudice the effectiveness of the method of dealing with breaches of speed limits. I accept the evidence given by Mr Shuey and Assistant Commissioner Hastings which, to me, seems highly probative: if motorists are aware of the trigger speeds used by the police then many motorists will drive to those speeds, even though they are above the speed limit.

12 The evidence discloses that before speed camera trigger speeds were reduced in 2002, the 85th percentile speed in a number of 60 kilometre per hour zones was 69 kilometres per hour. The 85th percentile speed has now been reduced significantly. This reduction in speed has made a substantial contribution to road safety, for the benefit of the public. To give up that gain would be a significant loss to the community; and would be contrary to the public interest. And I conclude that it is likely that some of this gain would be given up if the documents in question in this proceeding were disclosed.

13 What of the Bergman letter? The answer to that question is that it does make a difference; but I am not persuaded that it makes such a difference that produces a different result. If the public had the perception that the trigger speed in a 60 kilometre zone was, say, 67 (whether or not that perception was based upon the widespread circulation of the Bergman letter), then the release of a document that confirmed that would not be to release information that would prejudice the effectiveness of the methods used by the police. However that is not the case. As I have earlier found, the public is confused as to the position being adopted by the Victoria Police as to the trigger speeds used in enforcement. The release of the documents now sought would, I think, significantly change the status of the information that is available to the public: not just by reason of the nature of the documents, but also by reason of the important role of the applicant in our polity and the manner of release (by the tribunal). Notwithstanding the public availability of the Bergman letter, the effect of disclosing the documents now sought would give motorists greater confidence to drive in excess of nominated speed limits. Thus although the Bergman letter is clearly a relevant and influencing factor, it does not alter my conclusion that the disclosure of the documents in question would be reasonably likely to prejudice the effectiveness of the method of enforcing speed limits.

14 Hence the documents that are sought are exempt documents pursuant to the section 31(1)(d) of the Act. It is unnecessary to consider whether the documents are also exempt under section 31(1)(a) of the Act.

15 That then raises the question of whether the documents should be released pursuant to section 50(4) on the basis that the public interest requires that access to the documents should be granted under the Act. To meet this test the public interest in providing access must be substantial and must outweigh the public interest in maintaining the exemption. The word "requires" in section 50(4) is a significant word as explained by the Court of Appeal in cases such as Director of Public Prosecutions v Smith[1] and Secretary to the Department of Premier and Cabinet v Hulls[2].

16 Based upon the factors I have already discussed in relation to whether or not the documents are exempt documents, clearly there are strong public interest factors against providing access to the documents. What then of public interest factors in the other direction?

17 As I observed during submissions, there is a public interest in members of the public knowing the circumstances in which laws are likely to be enforced. That public interest has its roots in the concept of justice. Justice is enhanced if similar circumstances are dealt with in a similar manner. Justice is also enhanced if citizens know what they can and cannot do without incurring a penalty. It is unfair to require people to act in a particular way if they are not reasonably aware of what is expected of them.

18 Although these public interests are significant, I am not persuaded that they require access to the documents the subject of this proceeding. In the first place, the public is aware of the nominated speed limits which apply on any particular road. Second, the public is aware that it is contrary to the law to travel at speeds greater than those nominated speed limits. This is not a case where the law is vague and to effectively know what you can or cannot do you need to know what will be the practical application of the law. (I gave an example during argument of the environmental law in relation to pollution which, if taken literally, would mean that many things that people do in their everyday lives would constitute pollution. In that case it might be in the public interest for the circumstances in which enforcement will be taken to be widely known. But I cannot see that as applying to speeding.)

19 As to the question of consistency, I do not see that as an argument whereby there is a public interest in requiring access to the documents. As Assistant Commissioner Hastings explained, the law is applied consistently, in the sense that any motorist, regardless of their vehicle type or social or economic status, is the subject of an infringement notice if they exceed a certain speed. To my mind that is a consistent approach.

20 I find that the documents that have been sought are exempt documents. Further, this is not a case where the public interest requires that access to the documents should be granted under the Act.

[1] [1991] VicRp 6; [1991] 1 VR 63.

[2] [1999] VSCA 117; [1999] 3 VR 331.