From Newsgroup: aus.rail
One of the issues that has to be decided in a GIPA application is
whether the release of the information could reasonably be expected to facilitate a criminal act.
This is a result of paragraph 2(d) in the table to section 14 of the
GIPA Act.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/giaa2009368/s14.html
[Memo to legislation writers - don't put stuff like this in tables,
because it leads to the expression "x(x) in the table to section 14" all
over place in decisions.]
Courts emphasise that "reasonably be expected" has its everyday meaning.
So one might be inclines to think that that it means the same as it
would if one said that it could reasonably be expected that a bus will
come at around time indicated in the timetable.
Oh, how naive!
A tribunal tried to define it as meaning "more probable than not", which
led to a court case that gets cited repeatedly. The use was in a
somewhat different context, so don't get confused by that.
ATTORNEY-GENERAL'S DEPARTMENT and AUSTRALIAN IRON AND STEEL PTY. LIMITED
v PETER COCKCROFT, sometimes referred to as Attorney-General V Cockcroft.
https://jade.io/article/149472
In paragraph 29, one judge states, with the agreement of another judge:
"In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment
to be made by the decision-maker as to whether it is reasonable, as
distinct from something that is irrational, absurd or ridiculous, to
expect that those who would otherwise supply information of the
prescribed kind to the Commonwealth or any agency would decline to do so
if the document in question were disclosed under the Act."
The third judge, writing as "Judge2" lower down goes into more detail
about the meaning of "expect".
None of the judges appears to have suggested that it is to be expected
if there's any possibility at all of occurring, yet despite quoting this
case, and tribunal decisions that make this point in various ways, it
seems that agencies face a very low bar when it comes to persuading
tribunals that the "reasonably be expected" threshold is met.
In Hutchinson v Roads and Traffic Authority the application was seeking documents relating to "structural rust and /or lack of proper painting maintenance on the Sydney Harbour Bridge".
Amongst the documents identified were 53 photographs, which presumably
showed one or other of the problems that applicant was concerned about.
The RTA objected to the release of these photographs on the grounds that
"any increase to the number of images of the structure of the Bridge
over and above those currently available to members of the public
justifies reliance on the exemption."
Access to these photographs was ultimately denied by the Tribunal on the grounds that the release could reasonably be expected to facilitate the commission of a terrorist act.
I think the hypocrisy of the RTA (as then was) is emphasised by the fact
that they had already allowed the bridge walk tours to take place. It's
true that tourists are not permitted to take cameras, but someone
interested in the photographing the structure might still do so
covertly. In any case, much of the bridge can be see and photographed
from various vantage points using telephoto lenses, and it's not as if
the bridge is that complicated structurally. It mostly consists of the
same structural components repeated over and over.
I don't believe the RTA was really concerned about terrorism in this
case. It just didn't want the public to get to see issues related to the maintenance of the bridge.
How the Tribunal could find that the release of the photographs could reasonably be expected to facilitate a terrorist attack on the bridge
escapes me.
This is what one faces when trying to extract any kind of technical information from an agency. They pull the terrorism rabbit out of the
hat at the slightest pretext, and the tribunals let them get away with it.
I wonder what would have happened if someone had attempted to get
technical information about the dead-man's pedal in the Tangaras. No
doubt the same nonsense would have been used to block it. Yet the
inquiry into the Waterfall accident revealed that Railcorp (as I think
it was named then) had known for over a decade that there was a problem
with it. If someone had got access to that information, perhaps it would
have been fixed before people died.
Sylvia.
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