The Staff Development and Training Centre and Secretary, Employment, Workplace Relations and Small Business [2000] AATA 78 (8 February 2000)

Last Updated: 15 February 2000

CATCHWORDS - FREEDOM OF INFORMATION - documents relating to criteria used in tendering process of Job Network Programme - whether documents exempt under sections 36, 39, 40, 43(1)(a), 43(1)(b), 43(1)(c)(i) and 45 of Freedom of Information Act 1982 - consideration of competing public interests - no exemptions properly apply - decision set aside.

Acts Interpretation Act 1901 - Ss 19B

Commonwealth Employment Service Act 1978 - Ss 6,

Commonwealth Services Delivery Act 1997 - S 7

Employment Services Act 1994 - Ss 8, 14, 15, 18, 39, 41, 46, 47 55

Employment Services Bill 1994

Financial Management and Accountability Regulations - Reg 7

Freedom of Information Act 1982 - Ss 4, 9, 11, 22, 36, 39, 40, 42, 43 Part IV

Social Service Act 1947

Social Security Act 1991

Social Security (Job Search and Newstart) Act 1991

Student and Youth Assistance Act 1973

Trade Practices Act 1974 - S 52

Attorney-General v Cockroft (1986) 64 ALR 97; (1986) 10 FCR 180; (1986) 12 ALD 468

Dillingham Constructions Pty Ltd v Downs [1972] 2 NSWLR 49

Fasold v Roberts (1997) 145 ALR 548; (1997) 70 FCR 489

Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; (1984) 6 ALD 198; (1984) 54 ALR 285

Lansing Linde Ltd v Kerr (1990) 21 IPR 529; [1991] 1 WLR 251; [1991] 1 All ER 418

Liverpool City Council v Weir (1984) 53 ALR 77; (1984) 58 ALJR 213; (1984) 51 LGRA 250

Morrison-Knudsen International Co Inc v Commonwealth (1972) 46 ALJR 265

Re Barrell and Australian Broadcasting Commission (1985) 7 ALN N129

Re Bayliss and Department of Health and Family Services (unreported, (1997) Decision No. 12277, 10 October 1997)

Re Connolly and Department of Finance (1994) 34 ALD 655

Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; (1985) 3 AAR 169

Re James and Others and Australian National University (1984) 6 ALD 687; (1984) 2 AAR 327

Re Kamminga and Australian National University (1992) 26 ALD 585; (1992) 15 AAR 297

Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112; (1984) 1 AAR 419; (1984) 54 ALR 313; (1984) ATR 787; (1984) 84 ATC 4516

Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427

Re Waterford (No. 2) and Department of the Treasury (No. 2) (1984) 5 ALD 588; (1984) 1 AAR 1

Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111; (1992) 108 ALR 163; (1992) 16 AAR 28

Young v Wicks (1986) 79 ALR 448; (1986) 13 FCR 85; (1986) 11 ALN N176

DECISION AND REASONS FOR DECISION [2000] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q 1998/862

GENERAL ADMINISTRATIVE DIVISION )

Re THE STAFF DEVELOPMENT & TRAINING CENTRE

Applicant

And SECRETARY, EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 8 February, 2000

Place Brisbane

Decision The Tribunal:

1. sets aside the decision of the respondent dated 31 July, 1998; and

2. substitutes a decision that folios 55-89, 99-106, 138-141, 156-158 of File No. 98/0680 and folios 198-231 of File No 97/00401 and folios 136-137 of File No. EF97/00401 are not exempt documents within the meaning of the Freedom of Information Act 1982

S A FORGIE

Deputy President

REASONS FOR DECISION

On 27 May, 1998, a delegate of the respondent, the Secretary of the Department of Employment, Workplace Relations and Small Business ("the Secretary") decided to give the applicant, The Staff Development and Training Centre Pty Ltd ("Staff Development") access to some of the documents which it had requested under the Freedom of Information Act 1982 ("the FOI Act") and to refuse access to others. That decision was affirmed by another delegate of the Secretary on 31 July, 1998. On 3 September, 1998, Staff Development lodged an application to review that decision.

2. At the hearing of the application, Staff Development was represented by its directors, Mr and Mrs Van Putten. The Secretary was represented by Mr Hanks of counsel. Regard was had to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") and to affirmations of Robert Ian Campbell affirmed on 16 April, 1999 and 30 April, 1999, a copy of a Tender Summary prepared by the then Department of Employment, Education, Training and Youth Affairs ("DEETYA") and an affidavit of Elizabeth Lee sworn on 9 August, 1999. After the hearing, I sought further submissions on two occasions regarding certain issues that arose during the course of my consideration. Both Mr and Mrs Putten and Mr Hanks made written submissions in response.

THE ISSUE

3. The issues in this case focus upon whether certain folios, to which the Secretary has refused to give Mr and Mrs Putten access under the FOI Act, are exempt from disclosure under that legislation.

THE REQUEST

4. In its request dated 3 April, 1998, Staff Development sought access to:

"1. Any information available on the general assessment criteria used to assess government, community or private companies or organizations tendering for the 'Employment Services Tender'.

2. Any specific information used to assess the Financial Viability of government, community or private companies or organizations.

3. A copy of all written or electronic information that is held by your department relating to our tender, in its entirety.

4. A copy of all written or electronic material used to assess the financial viability of our tender bid specifically.

5. Any material reporting the outcome of the application of the assessment criteria to our tender bid.

6. The names, title and qualifications of the person(s) that assessed our tender bid, together with advice on the names of the organisations that they represent.

7. A copy of all written or electronic information that is held by your department relating to our tender, in its entirety.

8. Copies of any or all information that was obtained from outside sources with respect to our tender bid, such as credit checks on financial viability, but not just limited to financial information.

9. A copy of any information obtained from DEETYA or ESRA about our company, which was used in the assessment of our tender bid.

10. Any file material or notes made by individuals that relate to the assessment of our tender bid.

11. Any material that demonstrates that the financial viability criteria was applied uniformly to all applicants and that the successful tenderers met the financial viability criteria.

12. A copy of the Departmental Report to the Minister for Employment reporting the outcome of the tender process." (T documents, pages 14-15)

THE DOCUMENTS

5. The following documents are the subject of the application for review:

  File No. 98/0680

folios 55-89: undated documents written by DEETYA. They comprise the "Financial Viability Assessment Procedures" in Volume 4 of the Tender Assessment Operations Manual.

folios 99-106: undated documents written by DEETYA. They comprise flow charts describing the process for assessing an organisation's financial viability. They form part of the Tender Operations Manual.

folios 138-141: undated documents written by DEETYA. They comprise Part B3, entitled "Financial viability" of Chapter 9 of the Tender Operations Manual. Chapter 9 is entitled "Quality Assurance".

folios 156-158: undated documents written by DEETYA. They comprise Chapter 6, entitled "Financial Viability Teams" from the Tender Operations Manual.

  File No 97/00401

folios 198-231: documents dated October and November, 1997 by various authors and created for the purpose of assessing Staff Development's financial viability as part of the assessment of its tender for the provision of employment services.

  File No. EF97/00401

folios 136-137: two documents dated October and November, 1997 which are copies of folios 212 and 213 from file No. 97/00401 with the addition of hand written notations not appearing on the original folios. File No. EF97/00401 is a duplicate of file No.97/00401.

BACKGROUND

The history of providing employment services

6. Mr Campbell, who is the Group Manager, Employment Services Market Group ("ESMG"), of the respondent set out the history of the Job Network programme in his affirmation of 15 April, 1999. His evidence on this was not challenged and I accept it but have supplemented it with the legislative history which I will set out below. The findings which I will set out below are based in part on Mr Campbell's evidence and in part on the legislative history.

7. Following World War II, the Commonwealth Government was concerned to assist some one million men and women who had been demobilised from the armed forces and war oriented factories to find alternative employment. In 1945, it issued a White Paper entitled "Full Employment in Australia". On 27 August, 1945, the Re-establishment and Employment Act 1945 came into operation. That legislation was intended to provide for the re-establishment of those people in civil life as well as to facilitate their employment. The Commonwealth Employment Service ("CES") was established on 1 May, 1946 to provide services and facilities to assist in maintaining high and stable levels of employment, training and re-training.

8. The CES carried out its functions for many years. A review of its functions and operations was conducted and, in June, 1977, a report entitled "The Review of the Commonwealth Employment Service" (the Norgard Report) was released. Following that report, the CES was given a statutory foundation and identity as an organisation within the then Department of Employment and Industrial Relations. That followed from the enactment of the Commonwealth Employment Service Act 1978 which came into operation on 29 August, 1978. It set out the CES's functions in section 6. Among the functions it was given were those to assist persons seeking employment, employers and intended employers wishing to fill vacant positions; promoting and implementing approved manpower programmes and other measures designed to ensure a high level of employment in the community; to register those who were unemployed and who wished to claim benefits under the then Social Service Act 1947; to provide assistance in seeking employment to those who were already in receipt of those benefits; to publish information in respect of the labour market or the CES's services relating to employment; and collect statistics relating to the labour market. The CES was also charged generally with the responsibility of doing anything which was incidental or conducive to the performance of the functions it had been specifically given by section 6.

9. The CES developed a network of offices throughout Australia and, in 1989-1990, those offices became linked through a national computer network. In 1988, the NEWSTART programme was introduced. That programme was intended to assist those people who had been unemployed for a long period of time to move into employment and to reduce their dependence on unemployment benefits. The system involved close co-operation between the then Department of Social Security and CES to coordinate assistance for these people. A major goal of the programme was to increase the employment opportunities available to them by involving the community in the direct canvassing of jobs, improving community awareness and changing negative attitudes among various groups including employers.

10. The NEWSTART programme was later followed by the introduction of two new payments (Job Search Allowance and Newstart Allowance) when, in 1991, Parliament passed the Social Security (Job Search and Newstart) Act 1991. That legislation came into operation immediately after the Social Security Act 1991 on 1 July, 1991. In introducing the Bill, the then Minister for Community Services and Health, representing the Minister for Social Security, touched both upon the previous NEWSTART programme and the inter-relationship of the new payments with an extended NEWSTART programme when he said:

"This Bill would implement one of the most significant changes to the Australian system of social security since the 1940s. It involves the end of the unemployment benefit program - a program that was created in a world very different from today's. It will see the introduction of a new strategy - the Newstart program - which will help us deal far more effectively with the pressing problems of the 1990s.

...

The major changes which are introduced in this Bill build on the successful reforms of recent years which have received widespread community support and produced far more effective outcomes for the unemployed. The job search allowance for youth and the initial NEWSTART program for the long term unemployed have clearly demonstrated the effectiveness of positive measures of assistance; and form the foundation for our new approach.

The Newstart program provided for in this Bill is a wide-ranging strategy. It centres on the creation of two new payments - Jobsearch allowance and Newstart allowance - which in turn involve new patterns of obligation, greater emphasis on training, increased responsibility for the Commonwealth Employment Service (CES), and improved Commonwealth Employment Service/Department of Social Security liaison.

Newstart is a major step forward in the integration of income support with labour market assistance. We recognise that it is simply not enough in these difficult times to provide people with income support and leave them to their own job search. We have to find out why people are having difficulty in finding work. We have to think about their prospects, not just immediately, but in the longer term. We then have to make serious attempts at dealing with their needs through training and other programs.

One of the keys to the success of this strategy, Mr Speaker, therefore, is the availability of labour market programs. The Government has substantially increased the availability of these programs for the long term unemployed in recent years. As part of the Newstart program, an additional $227m is to be provided for labour market programs until the end of 1993-94, giving over 50,000 additional program places each year. This increase will be supplemented by the $105m expansion of labour market programs announced by the Prime Minister (Mr Hawke) in the March 1991 Industry Statement.

With the Newstart program, we will not be repeating the disastrous social and economic policy of 1982-83. We will be working with unemployed Australians in the most effective way possible to ensure that they will share in the benefits of economic recovery. More than that, we will be working to improve the competitiveness of the Australian economy and its labour force. The Newstart program integrates social and economic goals in a way which will build on Australia's proud reputation as an international leader in social policy.

In developing the arrangements for Jobsearch allowance, a major aim is to help prevent long term unemployment wherever possible - to deal with problems before they become entrenched. Recipients will be required to participate in a labour market program or vocational training if this is likely to improve their chances of finding a job. The CES will provide early intervention assistance to Jobsearch allowance recipients within the first three months where it is needed. There will remain a strong focus on helping young people, and the current arrangements for 16- and 17-year olds will be incorporated into the Jobsearch allowance provisions.

The Bill provides that Jobsearch allowees, like Newstart allowees, who start Commonwealth Employment Service approved training will continue to receive their Jobsearch payment together with the normal training allowances. Improving skills should be seen as an integral part of effective job search, particularly in the current economic situation. The change will help resolve some problems of interruption of income support that people have experienced under current arrangements when transferring from unemployment benefit to a training allowance.

When unemployment benefit was first introduced, and indeed for most of the first 30 years of its operation, long term unemployment was largely unknown. For the last 10 years, however, it has been a major community problem. The introduction of Newstart allowance for the long term unemployed will enable us to meet this problem in the specialised way that is needed.

Experience has shown that the key to tackling successfully the problems of the longer term unemployed lies in integration of income support and other forms of assistance. Since the Government upgraded efforts in this area, with the first phase of the Newstart program, the results have been striking. Newstart has also shown that concentrated efforts, utilising options from a range of available measures, to assist the long term unemployed can contribute to useful employment outcomes, even for persons in receipt of UB for five years or more. No country has found this problem easy to deal with but the figures show that significant numbers of people can be helped.

Between February 1989 and December 1990, 134,000 persons in the Newstart target group left unemployment benefit. During this time, around 75,000 unemployment benefit recipients have participated in labour market programs which will improve their employment prospects. The proportion of the unemployed who are long term fell from around 38% in February 1989 to 25% in November 1990." (Hansard, House of Representatives, 18 April 1991, pages 3019-3020)

11. In 1994, Parliament passed the Employment Services Act 1994. Section 8 of that legislation provided that there was to be a CES within the DEETYA. The Act did not set out the functions which were to be performed by that service. Section 18 established Employment Assistance Australia, that was also to be an organisation within the Department. The functions of Employment Australia, set out in section 19, were to provide case management services to participants in the case management system referred to it under Part 4.3 of the Act and to perform functions conferred on case managers under the Act. The Employment Services Regulatory Authority ("ESRA") was established by section 68 whose functions were to monitor the operations of Employment Assistance Australia (sub-section 22(1)) and:

"(a) to regulate, in accordance with the provisions of this Chapter [4], the case management system;

(b) to promote competition in the provision of case management services;

(c) to monitor and evaluate the operation of the case management system;

(d) to report to the Minister on the operation of the case management system;

(e) such other functions as are conferred on ESRA by this Act or any other law;

(f) to do anything incidental to or conducive to the performance of any of the proceeding functions." (section 56)

12. Case managers were regulated by Part 4.5 of the Employment Services Act 1994. ESRA was required to formulate a scheme for the accreditation of entities as case managers (section 49). That scheme was to be set out in a written instrument which was a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. In addition to any conditions attached to an entity's accreditation under that scheme, an entity engaged by ESRA to provide case management services was prohibited from demanding or receiving any fee or other consideration from a participant of the case management in respect of the provision of case management services to the participant (sub-section 51(2)). If an entity were engaged by ESRA to provide case management services, the terms and conditions of the engagement were set out in a written agreement between them (sub-section 58(2)). The agreement might also provide for the payment to the entity in accordance with section 59.

13. The inter-relationship of the CES, ESRA, Employment Assistance Australia and case managers other than Employment Assistance Australia was addressed in the Explanatory Memorandum to the Employment Services Bill 1994 when it said:

"The Bill makes provision for the case management system. People registered with the CES may become participants in the case management system and the CES will refer the participants to case managers. Where a person is referred to a case manager, the case manager will have the function of assisting the participant to find employment.

The person will be required to enter into a case management activity agreement with the case manager which replaces, and performs similar functions to, any Job Search or Newstart Activity Agreement that the person had under the Social Security Act 1991. If the person fails to enter into the agreement, the person could lose his or her qualification for job search or newstart allowance. Such persons will have rights to seek review of decisions by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.

Employment Assistance Australia is the principal government-owned case manager. The function of Employment Assistance Australia (EAA) is to provide case management services to participants in the case management system. ESRA will monitor the operations of EAA.

Other case managers, called contracted case managers, will be engaged by ESRA to provide case management services. However, before a contracted case manager can be engaged by ESRA it must be accredited by ESRA. ..." (page 2)

14. Reflected in the changes introduced by the Employment Services Act 1994 was a change in focus regarding the purchase and delivery of Government services. The role of the public sector as the source of policy advice and as a purchaser of services was emphasised and this was a contrast to the public sector's previous role as a major deliverer of services. There was a greater emphasis in the early 1990s on competitive tendering for labour market programmes.

15. In August, 1996, the Government released a discussion paper entitled "Reforming Employment Assistance: Helping Australians into Real Jobs". It examined the shifts in social and economic circumstances in Australia and proposed a major change involving the purchase and delivery of Government services. Following consultations, the Government announced its decision to abolish the CES and to establish a competitive employment services market to be delivered by public sector, community and private sector providers.

16. The Employment Services Act 1994 has not been amended by the Parliament and continues to require that there be a CES within the Department. Enquiries made of the Secretary's representatives reveal that no staff are attached to the CES, the CES has no active responsibilities and there has been no appropriation from consolidated revenue in relation to it. Employment National Ltd has been established as a Commonwealth owned body to be the public sector provider in the employment services market.

17. It was proposed that the new system would be brought into being without the enactment of new legislation and by using the legal arrangements that the Government then used to deliver the great majority of labour market assistance. I note in passing that the decision to abolish the CES has not been underpinned by the repeal of section 8 of the Employment Services Act 1994 and that there remains on the statute books a requirement that there be a CES within the Department of Employment, Workplace Relations and Small Business ("DEWRSB") as that Department has now subsumed the functions of DEETYA. Where appropriate, a job seeker's participation in the new arrangements was relevant in determining whether he or she had complied with the existing requirements of the activity tests prescribed for receipt of the Newstart Allowance under the Social Security Act 1991 and for receipt of the youth training allowance under the Student and Youth Assistance Act 1973.

18. The objectives of the changes introduced in 1996, which came to be known as "Job Network" and which commenced on 1 May, 1998, together with the principles underpinning them are set out in the following passage from the document which is entitled "Employment Services Request for Tender 1997 Overview". It is exhibited to Mr Campbell's affidavit:

"The primary objective of the Government's reforms is to ensure that labour market assistance and services have a clear focus on employment outcomes and to make a genuine difference to those assisted. Under these reforms, labour market assistance and services will be client-driven, not programme-driven. Clients will benefit from higher standards of service, more flexible and tailored assistance and ultimately better and more lasting employment outcomes.

The changes are radical and comprehensive, involving the most significant reorganisation of labour market assistance arrangements since the establishment of the Commonwealth Employment Service in 1946.

Several key principles underpin the reform of labour market assistance:

* Assistance will be flexible and will fit the needs and capacities of individual job seekers.

* The incentive framework will reward providers of labour market assistance primarily for placing job seekers in jobs. There will be additional incentives for placing those who are most disadvantaged.

* A competitive market for employment services will be established, in which the purchaser will be separated from providers.

* Continuation of income support for eligible unemployed people will be linked closely with their participation in active employment assistance measures.

* Job seekers and unemployed people will be able to receive high-quality, streamlined service from the agencies and providers with which they interact.

The Government is committed to simplifying and streamlining services for apprenticeships and traineeships. The 1996-97 Ministerial Budget Statement by the Hon. Dr David Kemp, MP, Minister for Schools, Vocational Education and Training - Training for Real Jobs - outlines the principles of reform flowing from the new apprenticeship and traineeship arrangements. The Government's development of a new approach to the Australian apprenticeship and traineeship system reflects the need to strengthen enterprise-based training in Australia and to expand apprenticeships and traineeships into new industries and occupations.

The Government is also committed to helping unemployed people establish their own viable small businesses through the comprehensive package of assistance offered by the successful New Enterprise Incentive Scheme (NEIS). Some improvements will be introduced to NEIS to integrate the scheme into the employment services market, to streamline administration, and to involve Area Consultative Committees in assessing the commercial viability of business plans.

The new arrangements largely replace the former programme-driven assistance structure. ..." (Exhibit 1, Exhibit "RIC-2", pages 5-6)

19. Funding for the new arrangements comes mostly from the previous labour market programmes and case management with some associated running costs from DEETYA and ESRA. In all, the Government allocated approximately $1.7 billion for the first contract period of the employment services market for labour market and entry level training assistance. An additional $400 million a year was provided to enable some labour market programmes to continue to be available and they included entry level training incentives, regional assistance, employment strategies for Aboriginal and Torres Strait Islander peoples, the Advanced English for Migrants Programme, bridging courses for people trained overseas and workplace literacy. Job seekers identified as having special needs may be helped through a new programme called the Community Services Programme. That is conducted through the Commonwealth Services Delivery Agency which was established as part of the overall changes which had been introduced. (Exhibit 1, Exhibit "RIC-2", page 6)

20. The Commonwealth Services Delivery Agency, which was called "Centrelink", was established on 1 July, 1997 by virtue of the Commonwealth Services Delivery Agency Act 1997. Pursuant to section 7 of that Act, the Chief Executive of Centrelink may enter into arrangements with the principal officer of a Commonwealth authority for the provision of Commonwealth services. Those services may include the exercise of particular powers or the performance of particular functions delegated to them under specific enactments as well as the determination of a person's eligibility for, or entitlement to receive or to have access to particular services.

21. DEETYA, and its successor DEWRSB, has made such an arrangement with Centrelink in relation to the employment services it offers. Those seeking employment register at Centrelink where they receive advice both on eligibility for income support and employment services. There are three employment services: FLEX, Entry Level Training Support Services and the New Enterprise Incentive Scheme. The FLEX employment service comprises three levels which were briefly outlined in the Overview booklet accompanying the Employment Services Request for Tender 1997 (Exhibit REC-2 to Mr Campbell's affirmation):

"FLEX aims to get eligible unemployed people, particularly those most disadvantaged in the labour market, into sustainable and on-going employment. The best way to achieve this is to establish an employment services market where job seekers' skills and attributes are matched to the recruitment needs of employers.

Because the prime objective of the reforms is to get people into jobs, the Government has decided that all FLEX services providers must canvass for jobs and match unemployed people with suitable jobs. That is, the Government will require all FLEX providers in the new market to provide at least some labour exchange services under FLEX 1. Some providers may be contracted to provide FLEX 1 only.

The Government recognises that there are some job seekers who cannot immediately be matched to available jobs. Some job seekers have skills, but lack knowledge in presenting these skills and convincing employers to employ them. Other job seekers may simply not know how to approach an employer to ask about a job or how to present at an interview. FLEX 2 helps these job seekers improve their job search skills.

There are also job seekers who are harder to place due to their personal circumstances or their lack of skills and job-related experience. These job seekers require intensive, individualised assistance and support to obtain and hold a job. The additional assistance required to assist these job seekers is provided under FLEX 3.

The type and level of assistance provided to eligible job seekers depends on each job seeker's level of need as well as duration of unemployment. ..." (pages 6-7)

22. Centrelink provides self help job search facilities, including access to the National Vacancy Data Base and information on local providers of the three employment services. Centrelink determines eligibility for employment services and selects and refers job seekers for FLEX 2 and FLEX 3.

23. The amount to be paid to service providers for FLEX was estimated to be $1.4 billion. That sum included $50 million for improving job search skills (now known as Job Search Training), $250 million for basic labour exchange (now known as Job Matching), $110 million for Entry Level Training Support Services (now known as New Apprenticeship Centres) and $122 million for the New Enterprise Incentive Scheme. An additional $1.1 billion was to be paid for FLEX 3 which is now known as Intensive Assistance. There have been some variations in the precise amounts of expenditure but their order of magnitude has remained the same.

24. The ESMG is an area within DEWRSB. It has responsibility for developing and managing Job Network and its functions are:

"(i) managing the operations of Job Network including management of contracts with Job Network Members and consultation with them and other stakeholders on the operation of Job Network.

(ii) developing policy on Job Network and employment services and providing the framework for maintaining value and quality in employment services for unemployed job seekers;

(iii) developing policies and practices for, and conducting the Job Network tender;

(iv) managing the Job Network communication strategy and implementing effective reporting and monitoring activity and managing market analysis and the funds allocation process;

(v) analysing vacancy and placement trends and advising on regional issues in relation to Job Network;

(vi) developing policy on Intensive Assistance, the Job Seeker Classification Instrument, registration, classification, selection and referral;

(vii) in conjunction with Labour Market and Programmes Services Group, liaison with Centrelink on policy and operational issues; and

(viii) developing strategies and monitoring performance of disadvantaged groups and oversighting the operation of the Community Support Programme." (Exhibit 1, paragraph 24)

25. Before the Employment Services Request for Tender 1997 documentation was launched on 4 August, 1997, ESMG had been involved in almost twelve months of planning. Those steps included drafting the Request for Tender documentation, modifying the tender arrangements related to the then existing legislation and preparing a comprehensive communications strategy to inform prospective tenderers and members of the public of the Request for Tender requirements and the implications of the reforms. They also included establishing Regional Employment and Purchasing Units in the regional offices of the then DEETYA to ensure that there was appropriate regional expertise regarding the Request for Tender and the tender assessment process and training and recruiting staff. Finally, ESMG engaged an independent probity adviser to monitor procedural integrity throughout the tender process.

26. There are twenty nine labour market regions and they are derived from the labour force regions identified by the Australian Bureau of Statistics. Labour force regions are the basis for the dissemination of labour market information and for the management of the national tender process. Organisations were invited to tender for one or more services for whole regions, for FLEX and the New Enterprise Incentive Scheme in one or more parts of one or more regions and for Entry Level Training Support Services in one or more sub-regions within one or more regions or industry sectors within or across one or more regions. FLEX 2 and FLEX 3 providers could expect to derive the majority of referrals from within the region (or part of a region) which they are contracted to service. All providers may be involved in some out of region activity but the then DEETYA expected that the great majority of a provider's placement activity would meet the needs of employers in the region or regions which the provider has been contracted to service.

27. DEETYA indicated its wish to have five service providers in each region. This was in the interests of giving job seekers a choice. The first contract period for FLEX, New Enterprise Incentive Scheme and the Entry Level Training Support Services ran from 1 May, 1998 to 30 November, 1999.

Staff Development and its tender

28. The evidence of Mr and Mrs Van Putten relating to Staff Development and the preparation of its tender was not challenged in the hearing. I accept their evidence on these matters and have based the following findings of fact upon it.

29. Up until April, 1998, Staff Development had been engaged in providing commercial training and consultancy services for the previous fourteen years. It has offices in five locations with a separate administration office in a sixth location. Each of the five offices had a trained manager and support staff and Staff Development owned all of its fixtures and fittings. For the last nine years, he has been a contractor with DEETYA. Staff Development had been trading profitably with an annual turnover of approximately $900,000.00. It had no debts and had access to bank overdraft facilities of $80,000.00 which was secured by a mortgage.

30. Some 95% of its work has been as a result of various contracts with DEETYA and there is no reason to question that it had a good record in fulfilling those contracts. As a result of failing to secure a contract under the Job Network programme, Staff Development has been unable to continue to employ its staff. Half were engaged by a Job Network provider and the remainder were left without employment.

THE EVIDENCE

Probity standards

31. In the Employment Services Request for Tender 1997 Overview, DEETYA set out its standards for probity in the tendering process:

"Competition, accountability and procedural integrity (probity) will be carefully monitored throughout the tender process.

DEETYA is committed to ensuring that:

  all assessment and selection processes are conducted with integrity,

  all tender respondents are assessed objectively and consistently,

  all confidential information is secured, and

  any conflicts of interest are addressed.

DEETYA has appointed the firm of lawyers, Blake Dawson Waldron, to act as Probity Adviser, and has adopted a Probity Plan which details the probity issues and steps to be followed throughout the phases of the tendering process. It is shown at appendix 1 of the red-covered publication Tendering Conditions and Draft Contract for Employment Services.

The Probity Adviser will select and manage an independent quality assurance team from Commonwealth and state government agencies to oversee the tender evaluation process. The independent quality assurance team will observe each part of the tender process to ensure that agreed processes and procedures are followed. They will also adopt quality control techniques to ensure objective and consistent assessment of the tenders. The independent quality assurance team will raise any concerns with the Probity Adviser.

Each tenderer, including the Government owned company, must submit a tender in the required form. In turn, tenderers will have to satisfy requirements for financial viability, confidentiality and system security. They may also be required to satisfy DEETYA on other aspects of the probity of their tenders, such as issues of conflicts of interest and collusive tendering which are discussed in section 1.6 of the red-covered publication Tendering Conditions and Draft Contract for Employment Services.

For further information on probity, including advice on any problems you may have, please refer to section 1.3 of Tendering Conditions and Draft Contract for Employment Services." (Exhibit 1, Exhibit "RIC-2", page 9)

32. The Probity Plan is set out at Appendix 1 of the Employment Services Request for Tender 1997 Tendering Conditions and Draft Contract. As part of that plan, a protocol had been prepared for all Ministers, Parliamentary Secretaries and their staff and departmental staff to deal with requests for information and representations from organisations which submit tender. The purpose of the plan is to ensure that each tenderer is treated equitably and that no party receives an unfair advantage. That protocol is at Appendix 2 of the Employment Services Request for Tender 1997 Tendering Conditions and Draft Contract.

The tender process

33. The tender assessment process is set out in the Employment Services Request for Tender 1997 Overview:

Receipt and registration of all tenders

Check of conformance to tender conditions

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Check of financial viability

Assessment of tender against relevant selection criteria

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Ranking of tenders against relevant selection criteria

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Ranking of tenders within each region for each service

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Preliminary allocation of contracted level

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Review of assessments, rankings and allocations

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Confirmation with potential service providers that they are remaining in the market

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Final decisions by DEETYA Secretary

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Advice to tenderers of outcomes

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Execution of contracts

(Exhibit 1, Exhibit "RIC-2", page 11)

34. Financial viability was the subject of two sections in the booklet, Request for Tender 1997 Tendering Conditions and Draft Contract:

"1.5.1.2 Financial viability

All tenderers submitting an application in accordance with the foregoing conditions will be assessed for their financial viability - that is, their financial capacity to deliver the service requirements and meet contractual obligations over the contract period. In addition to taking into account information provided on the application form, DEETYA may undertake other checks to satisfy itself as to the financial viability of the tenderer. DEETYA undertakes to treat such information as commercial-in-confidence and will only use such information for the purposes of tender assessment.

Tenderers who are assessed as financially viable will receive further consideration. Tenderers who are assessed as not viable will have their tenders rejected. Tenderers who do not provide sufficient evidence to be assessed as financially viable will only be considered where there are insufficient viable tenderers. In this event, those tenderers will be required to provide acceptable evidence of their financial capacity to operate before an offer of contract is made." (T documents, T4, Attachment A pages 3-4)

1.7 Financial viability

The onus is on you to satisfy DEETYA of your organisation's financial viability to meet the service requirements outlined in the yellow-covered publication Service Requirements for the Employment Services Request for Tender.

You should not proceed with this tender if your organisation is unable to provide acceptable evidence of your organisation's financial viability.

If your organisation is being established specifically to tender, you will need to seek independent supporting evidence of your capacity to operate given the nature of outcome payments for most employment services. This evidence may be in the form of financial statements, references or other documentation - perhaps from your accountant - that independently verifies the financial resources of your organisation.

It is important that you make realistic assumptions about your organisation's possible cash flow when assessing the likely viability of your business. Your business levels will be subject to client choice, and the services offered will depend on client needs. In some services, outcomes - hence payments - will not be achieved for many months." (T documents, T 4, Attachment A, pages 7-8)

35. Paragraph 1.5.1.3 of the Request for Tender 1997 Tendering Conditions and Draft Contract was headed "Assessment against the selection criteria". It advised would be tenderers that:

"Tender applications will be assessed against those selection criteria for the relevant service(s). DEETYA will be considering the entirety of your application. All criteria are important.

DEETYA may check government records for organisations' previous performance in providing services funded by DEETYA and the Employment Services Regulatory Authority.

If you organisation has not been funded previously by DEETYA or the Employment Services Regulatory Authority, you may provide contact details for organisations to which you have been contracted. This information is requested on the application. DEETYA may then check with those organisations." (T documents, T4, Attachment A, page 4)

36. Mr Campbell said that, when tenders closed on 16 September, 1997, 1,016 organisations had submitted more than 5,300 bids. A number of organisations bid for several services in various regions. All tenderers provided a statutory declaration affirming that it had not engaged in any collusive tendering, anti-competitive conduct or any other similar illegal conduct in the preparation or submission of their offer. It is apparent from the Tender Summary (Exhibit 3), that each tenderer was required to submit certain formal information. In Part A, each was required to give certain information as to name, ultimate holding identity, registered business or trading name, whether its organisation was registered with an Australian Companies Number, a Dun and Bradstreet number and a registered business number as well as contact details. Each was also asked for details of the people in the organisation, the number of full time employees and the number of years the tenderer had been in business. Part A also required each tenderer to give details if sub-contractors or agents were to be used in the delivery of services. If a tenderer had previously provided employment-related services to the Commonwealth, details had to be given. That information included details of any overdue acquittals for funding received from DEETYA, the Australian National Training Authority or the ESRA. Part B of the form required each tenderer to summarise the services which it would offer and the regions in which it would do so. Part C required each tenderer to supply financial details. Among the material to be forwarded to DEETYA were the latest financial statements for (if possible) the previous three years. Included in those statements were to be profit and loss sheets, balance sheets, statement of cash flow, notes to the accounts and the name, qualifications and address of the auditor. Other financial information was acceptable if audited accounts were not available. Each tenderer was required to give information regarding the business failure of any person having a direct or indirect interest in the organisation. Information was also required regarding matters such as government investigations of the organisation or collections by debt collection agencies on behalf of creditors.

37. A Tender Review Committee, Mr Campbell continued, was responsible for overseeing the assessment process. It considered applications with the advice of the Probity Adviser (see paragraph 47 below). Each tender was assessed for conformance with the Request for Tender requirements. Once a bid had been submitted, Mr Campbell said, it could not be changed and no new material could be introduced other than to rectify minor clerical omissions in accordance with the conditions set out in the Request for Tender. A separate team checked non-conforming tenders to confirm that they did not conform.

38. Tenders which passed the registration and conformance stage were then checked for their financial viability, Mr Campbell said. His evidence in relation to that is set out in the next section.

39. Apart from financial viability, tenders were assessed against the criteria focused on the effectiveness of proposed strategies to deliver employment services in the region. Mr Campbell said that experience and expertise in delivering services, including past success in placing job seekers into sustainable jobs, were important. If the tenderers had no previous employment services experience, they were asked to submit referee reports on performance in delivering similar services.

40. The assessments took into account the major features of the labour market in each region. Those features were set out in the Request for Tender. Analysis of performance data on services provided in the past by organisations recognised the differences between labour market regions, in terms of job opportunities and the placement of job seekers.

41. All tenders initially rated as unsuccessful against the overall selection criteria were subsequently re-assessed as well as a ten per cent sample of those tenders rated as suitable, Mr Campbell said. The assessment teams included at least one person with a specific local knowledge. Team members were rotated regularly to avoid the possible build-up of systemic bias. Independent observers drawn from other departments and State Governments monitored the assessment process, performing quality control checks on assessment teams and analysing the results of their observations. Separate teams of Senior Executive Service officers adjudicated when the results of the initial assessment and re-assessment differed.

42. Mr Campbell said that, in all, approximately 4,600 assessments, 3,500 re-assessments and 800 adjudications against the selection criteria took place in the course of the exercise. Over half of the 5,300 tenders were rated as suitable to proceed to the contracted level allocation stage of the tendering process.

43. Recommendations were made to the Tender Review Committee on the proposed business allocations for each region and then to the Secretary, who was the final decision-maker. The Probity Adviser was represented at all meetings where allocations were decided. Mr Campbell said that recommendations were based on the objectives of provider diversity, adequate geographic coverage and the requirements of specific client groups in the region as specified in the Request for Tender.

44. Offers of contract were sent out on 19 January, 1998 and were made at levels of business specified by tenderers in their bids, subject to requirements of the Request for Tender. The Minister announced more than 300 successful contracts to Job Network members on 26 February, 1998. Debriefing sessions and training of service providers took place over the next few months and Job Network was officially launched by the Minister on 1 May, 1998. On that day, 1,400 Job Network sites opened for business.

45. Mr Campbell said that every organisation that had tendered for Job Network was offered an individual feedback session regardless of whether they were successful or unsuccessful. Approximately 640 debriefing sessions took place. Those sessions lasted for half an hour, he said, and took place either in person or over the telephone. Details of the processes that had been used to ensure that the decisions were reached on a fair and consistent basis were explained, he continued, and feedback was given in relation to the organisation's tender. Mr Campbell said that he met with Mr Van Putten and provided him with feedback on Staff Development's tender.

46. The initial contract period for Job Network providers was 19 months. In December, 1998, the Government announced that the contract period was extended to 22 months so that the contracts conclude on 27 February, 2000 rather than 30 November, 1999. The second round of Job Network Request for Tender was released in June, 1999. It is intended that successful tenderers will be announced in November, 1999 and that the second contract round will commence on 28 February, 2000. The contracts will be for a period of three years.

47. In a letter dated 24 February, 1998, Messrs Blake Dawson Waldron, the Probity Adviser, set out the role it had undertaken in the tender process. They stated that they were satisfied that the tender had been conducted in accordance with the probity requirements outlined in the published tender documentation. The Probity Adviser had not identified any evidence of systematic bias, lack of objectivity by assessment teams, or pattern of scoring or ranking which advantaged or disadvantaged any particular bidder. They concluded by stating that "As it is outside the terms of our appointment, we do not express an opinion on policy, the legal basis for contracting employment services or the final content of the contracts." (T documents, page 26)

Financial viability

48. All tenderers submitting an application were assessed for their financial viability, Mr Campbell said. He continued:

"... There were 980 assessments undertaken of the financial capacity of the tenderers to deliver the service requirements and meet the contractual obligations over the contract period. The aim was to minimise risk (financial and probity) to the Commonwealth, rather than to measure the profitability of tenderers or to gauge their success in the new market. An essential goal was to ensure that organisations had the capacity to survive in the initial start up period of the market before the outcome payments were earned and paid." (Exhibit 1, paragraph 33)

49. In his oral evidence, Mr Campbell said that the assessment of the tenderers' financial viability was never intended to pass a judgement on the financial viability of an organisation as such. It was not intended as a measure of profitability or success. What was intended was that an assessment would be made as to whether the tenderer could meet contractual obligations with the Commonwealth over the term of the contract.

50. Staff, who had been trained and who were qualified by accountants, examined historical financial information, projected cash flows and qualitative information submitted by the tendering organisation. That information was used in the assessment of the tenders together with information from internal departmental records and records from organisations such as the Credit Reference Association of Australia Ltd, Dun and Bradstreet and the Australian Securities and Investments Commission.

51. The level of payment was dealt with in the Employment Services Request for Tender 1997 Tendering Conditions and Draft Contract (paragraph 1.12.2). It was said in that publication that the pricing arrangements for FLEX provide incentives for service providers to place job seekers into jobs. They also recognise that some job seekers will be harder to place than others. A FLEX 1 payment would be paid to a service provider for an eligible job seeker placed in an eligible vacancy. An additional bonus payment of $250 might be made for helping an eligible long-term unemployed person into sustainable work. For FLEX 2, a service provider is paid a fee to provide job search skills to eligible job seekers referred by Centrelink. A FLEX 1 fee, together with any relevant bonus payment, would also be payable if a FLEX 2 job seeker were placed in an eligible job. Under FLEX 3, incentive payments are available to assist a service provider to help eligible job seekers who are most disadvantaged in the labour market to get a job. The payments include an up-front service fee and additional outcome fees.

Cost to the Commonwealth of the financial ability procedures

52. Mr Campbell said that Job Network involves significant government expenditure in terms of payments to providers of employment services to help unemployed people. It also involves significant government expenditure in terms of developing an assessment methodology and techniques, drafting the Request for Tender and training staff to undertake the tender. In his affirmation, Mr Campbell said that the Commonwealth had spent at least $294,000.00 and eight months of time in developing the processes used to determine the financial viability of tenderers. These methodologies and techniques, staff training and tender documents will have relevance in the second round of tenders taking place in 1999. If made available to one tenderer, they would have to be made available to all. If that were to happen, they could not be used in the second and future rounds.

53. Mr Campbell said that:

"The integrity of the next tender process would be compromised if DEWRSB were to disclose the financial viability model used to assess details of the financial viability of tenderers; to do so could enable tenderers to restructure their tender in an artificial way so that they appeared to meet the criteria. This could result in the selection of tenderers who would otherwise be rejected. This in turn could increase the risk of failure by organisations to deliver high quality services to job seekers and employers - the central goal of the Government's reforms. If such organisations reduce their services or fail, job seekers will experience poor quality services or disruption of services, which may mean that they eventually fail to find jobs. There may be an increased cost to the taxpayer as a result of efforts to help such organisations; these costs would include the resources devoted by DEWRSB to helping the organisation overcome their difficulties, and, if necessary, ultimately re-allocating business to other providers. Only three per cent of Job Network members have left Job Network since it commence on 1 May. 1998. These organisations left for a variety of reasons including, but not restricted to, the issue of financial viability." (Exhibit 1, paragraph 51)

54. Mr Campbell concluded by saying that:

"... Job Network is a radical departure to the way the Government delivers employment assistance to job seekers and employers. It has no precedent; it cannot be compared to the past operations of Commonwealth labour market assistance. It has evolved through the commitment of successive governments to improve the quality of services available to job seekers through involving organisations from the private, public and community sectors. In this new framework, the principles of competitive tendering must operate if Job Network is to flourish. The integrity of Job Network would be compromised by the release of documents which may undermine the confidential tendering process." (Exhibit 1, paragraph 53)

Staff Development's tender

55. Mr Van Putten said that Staff Development was a highly respected organisation which had dealt with over 200 businesses over many years. In matters of job placement, he considered that it was one of the better performers and its results were above the national and state averages as published in the reports of ESRA.

56. Staff Development had tendered on the basis that it would retain its then existing five offices as they had the confidence of the people, a rapport with the market and were virtually debt free. In addition, it tendered for an additional three locations. The services for which it tendered were FLEX 1, 2 and 3. Based on what it considered to be a realistic assessment of its past performance, allowing for a reduction in placements as a result of the different market place which would result from the new arrangements and the delayed payments, Staff Development had assessed that it could operate profitably.

CONSIDERATION

57. Mr and Mrs Van Putten submitted that Staff Development sought access to the documents in its request for several reasons. One was to give its directors peace of mind. If they were to proceed further in their endeavours with Staff Development, they needed to know whether they had a firm basis for their belief in their company. They also felt that it is in the public interest and in any sense of fair play that they be given access to the criteria on which their financial viability was assessed. Had they been told those criteria at the outset, they could have made an informed decision whether to spend six weeks of their time in formulating the tender and whether to incur the expense in its preparation. Without access to the financial criteria, Staff Development could have no knowledge of the emphasis to be placed on particular aspects of its financial profile. Cash flow, for example, is an aspect of financial viability Mr Putten said, but it is not the only aspect of which account should be taken. Future projections are another, he said. Without knowledge of the criteria adopted to assess financial viability, he did not know the emphasis placed on one against the other or against any other criteria which might be relevant.

58. Mr Hanks submitted that each of the folios in issue in this case is exempt by virtue of sections 36, 39, 40 and 43 of the FOI Act. During the hearing, he expressed some concern at examining each passage of each document to determine whether or not it was exempt under one section or another rather than a more broadly based view of the document. He was particularly concerned that this approach, which he described as an "incremental approach", would lead to the release of material which was exempt.

59. It seems to me that, in cases in which every passage of every document under consideration has been claimed as exempt, every passage must be considered against the exemption provisions in Part IV of the FOI Act. Having considered each passage and determined what is and is not exempt on that basis, the document must then be considered again on the basis that the exempt material has been deleted. That consideration is required to ensure that what remains does not itself reveal material which is exempt. This follows from the application of sections 11 and 22 of the FOI Act when read with the definition of an "exempt document" in sub-section 4(1). Section 11 provides that a person has a legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency other than an exempt document. An "exempt document" is defined in sub-section 4(1) to mean:

"(a) a document which, by virtue of a provision of Part IV, is an exempt document;

(b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or

(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State;".

Each of the sections in Part IV is cast in the form that "a document is an exempt document if disclosure of the document under" the FOI Act would disclose the type of information specified in that section.

60. This would suggest that the whole of the document is exempt if it contains such information regardless of whether it also contains information which does not come within one or other of the sections. Section 22, however, must also be taken into account. In so far as it is relevant, that section provides that:

"Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; ...

(ii) ...; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy."

61. The clear effect of section 22 is that I must examine each document to ascertain whether it is possible to delete any material which would otherwise make it an exempt document so that it would no longer be an exempt document. If it is possible to make those deletions, consideration then needs to be given to whether it is reasonably practicable for the agency or Minister to make such a copy. In undertaking that consideration, regard must be given to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work.

62. That brings me to a consideration of the specific claims for exemption upon which the Secretary relies. I will consider each of them first in relation to the folios which are taken from the Operations Manual and then in relation to the documents which relate to the assessment of Staff Development's tender. In doing so, I bear in mind sub-section 11(2) of the FOI Act, which provides that, subject only to the provisions of the legislation itself, a person's reasons for seeking access to documents are not relevant in determining his or her right to access.

Operations Manual - claim for exemption under section 36

63. Sub-section 36(1) provides that:

"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, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest."

64. Sub-section 36(2) is also relevant in this case. It provides that:

"In the case of a document referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1)."

65. Sub-section 9(1) provides that:

"This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;

(b) documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act;

(c) documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or

(d) documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;

but not including documents that are available to the public as published otherwise than by an agency or as published by another agency."

66. Mr Hanks submitted that the Operations Manual is not a document of the kind referred to in sub-section 9(1) because it does not deal with rights, privileges or benefits or obligations, penalties or other detriments. This is so, he submitted, because the Operations Manual deals with the processes used by the Commonwealth to select the entities with which the Commonwealth will enter into commercial contracts.

67. Although I agree that the Operations Manual is not a document within the meaning of sub-section 9(1), I do so on a different basis. I have considered each of the different qualities which must be met by documents before they may be regarded as coming within the purview of the provision. They are: the documents are either provided by the agency for the use of its officers, or they are used by its officers; the documents are used by those officers in making decisions or recommendations; those decisions or recommendations are made under or for the purposes of an enactment or a scheme administered by the agency; those decisions or recommendations are made with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be subject; the documents are documents coming within one or more of the types of documents set out in paragraphs 9(1)(a)-(d); and the documents are not already publicly available.

68. In this case, I am satisfied that the Operations Manual has been provided by DEWRSB for the use of its officers, and is being used by those officers. Having examined the documents, I accept Mr Campbell's evidence that it contains directions as to the process to be followed by those officers in assessing the financial viability of tenders received by the Department. Whether they also contain any directions as to the criteria to be applied for assessing financial viability of tenderers, is a matter to which I will return later.

69. Once the processes have been followed, those processes lead to an assessment of the financial viability of the tenders or whether further information is required. Where a tender is assessed as not financially viable, the decision is, for all practical purposes, a decision that the tender will not proceed to the next stage of consideration and will not be accepted. Where a tender is assessed as financially viable, the assessment is a recommendation that the tender proceed to the next stage of consideration. That is a recommendation in the sense that a tender either does, or does not, "procure a favourable reception or acceptance" (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991) as to its financial viability.

70. Those decisions or recommendations are made for the purposes of a scheme administered by DEWRSB. It is a scheme in the sense of a "plan, a design; a project, an enterprise; a programme of work or action to attain an objective (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991). The scheme administered by DEWRSB is the Commonwealth's programme to purchase in a competitive market place (rather than to itself deliver) services to assist the unemployed in the Australian community to be employed in sustainable employment and, in so far as it is feasible, to pay for those services on the basis of positive outcomes for unemployed persons. Such matters as the choice of those who will provide the services, the manner in which those service providers are paid and the nature of the assistance that is to be provided to those seeking employment fall within the boundaries of that scheme.

71. Are the decisions or recommendations made with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be subject? Taking the tender process on its own, they are made with respect to tenders that have been submitted. The tender is no more than an offer. At that stage, there cannot be said to be any contractual obligations between the tenderer and DEWRSB as it has not been accepted. There may, however, be other obligations which arise between DEWRSB and the tenderers as a result of the tender process itself. There may, for example, be said to a contractual obligation (whether as a result of a "preliminary" contract or otherwise) upon DEWRSB to consider a tenderer's tender (see generally Hughes Aircraft Systems International v Airservices Australia (unreported, 30 June, 1997 [1997] 558 FCA). If DEWRSB were to provide incorrect information in calling for tenders, it may be liable in negligence to a tenderer (Morrison-Knudsen International Co Inc v Commonwealth (1972) 46 ALJR 265 and Dillingham Constructions Pty Ltd v Downs [1972] 2 NSWLR 49). Obligations may also arise under section 52 of the Trade Practices Act 1974 if DEWRSB were to give incorrect information.

72. While such obligations may arise, can it be said that, in assessing the tenders, the officers of DEWRSB are making decisions or recommendations "with respect to" those obligations or, indeed, with respect to any rights, privileges, benefits, penalties or other detriments? In order to be made "with respect to" them, there must be a relationship between the decisions and any rights, privileges, benefits, penalties or other detriments (see Liverpool City Council v Weir (1984) 53 ALR 77 at 81, per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ). In assessing the tenders, the relationship is between the decision whether or not to accept a tender and the tender itself. A decision may have an impact upon rights, privileges, benefits, penalties or other detriments or may lead to a breach of obligations but that is as a consequence of the decision whether to make a decision to accept, or otherwise, a tender. It may even be said to be a direct consequence of such a decision. Even so, the decision continues to be made with respect to the tender and not with respect to any rights, privileges, benefits, penalties or other detriments which may arise from that decision.

73. It follows that I do not consider that the Operations Manual is a document that comes within the ambit of section 9 of the FOI Act. I do not need to go on to consider whether or not it meets the remaining two criteria required by that section.

74. Does the Operations Manual come within sub-section 36(1)? In support of his contention that it does, Mr Hanks relied upon the cases of Re Waterford (No.2) and Department of the Treasury (No.2) (1984) 5 ALD 588 at 606 (Deputy President Hall, Mr Prowse and Mr Hughes, Members) and Re James and Others and Australian National University (1984) 6 ALD 687 (Deputy President Hall) in which it was said that the "deliberative processes" of an agency are its "thinking processes". He relied also upon Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64 at 76-77 in which Sheppard J stated that the expression is not to be confined to policy making.

75. The expression "deliberative processes" referred to in paragraph 36(1)(a) has been considered in a number of cases. Several of the earlier authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626. He referred to Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112, with which he agreed and in which the Tribunal had said:

"The term 'deliberative processes' would seem to have a wide ambit. The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that '... "deliberation" suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.'" (pages 118-119 and see also page 630 Re Howard)

76. Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 where it said:

"As a matter of ordinary English the expression 'deliberative processes' appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. 'Deliberation' means 'the action of deliberating: careful consideration with a view to decision': see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does 36(1)(a) come into play." (page 606 and see Re Howard page 630).

77. If the Operations Manual is to come within sub-section 36(1), it must be "matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes". The deliberative processes in this case are those processes which lead to DEWRSB's assessing and making a decision about the financial viability of each tender. There is no question that the Operations Manual is used by those officers of DEWRSB who are engaged in that process. It is used in the course of, or for the purposes of, the deliberative processes in the sense that it provides a procedural framework within which the deliberations upon financial viability take place.

78. Does the Operations Manual contain "matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place" in the course of, or for the purposes of assessing and reaching a decision upon the financial viability of the tenders? Taking first the word "opinion", it connotes "... a view held about a particular subject or point; a judgement formed; a belief ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993) or an "...expression of a personal view, estimation, or judgment ..." (The Macquarie Dictionary, 2nd edition, 1991). The word "advice" means "... The way in which a matter is looked at; opinion, judgement ... consideration, consultation, reckoning ... an opinion given or offered as to action; counsel ... The result of consultation; determination, plan ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991) . The meanings of the word "recommendation" meanings include "... The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991).

79. To a certain extent, the meanings of the words "opinion", "advice" or "recommendation" overlap. Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view. While the Operations Manual can be said to set out certain courses of action that must be followed in assessing tenders, it cannot be said to contain matter in the nature of consideration followed by the formation of a view in assessing the tenders. It does not set out matter in the nature of an opinion, recommendation or advice. Rather, it is limited to setting out various courses of action for handling tenders. Whether one course of action is followed rather than another, depends in some instances upon whether certain pre-determined situations prevail.

80. Would disclosure of the Operations Manual disclose matter in the nature of a consultation or deliberation that has taken place in the course of, or for the purposes of the deliberative processes? The ordinary meanings of "consultation" include "... A meeting in which parties consult together, or one person consults another, ... " (The New Shorter Oxford English Dictionary, 3rd edition, 1993) and "... the act of consulting; conference. ... a meeting for deliberation ... an application for advice to one engaged in a profession ..." (The Macquarie Dictionary, 2nd edition, 1991). The meaning of the word "deliberation" was considered in Re Waterford (see paragraph 76 above). Again, there is a notion of consideration inherent in the meaning of the two words. That consideration may or may not lead to the formation of an opinion, advice or recommendation or even a decision but, in the context of paragraph 36(1)(a) must be in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency.

81. The Operations Manual does not contain any matter which, if disclosed, would disclose any consideration, in the sense of a consultation or deliberation, that has taken place. A consultation or deliberation may take place within the framework set out by the Operations Manual but the Operations Manual does not reveal it.

82. It follows from this conclusion that the Operations Manual does not come within the category of documents described in paragraph 36(1)(a) and so is not exempt under section 36. There is no need to consider paragraph 36(1)(b).

Operations Manual - claim for exemption under section 39

83. Sub-section 39(1) provides that:

"Subject to subsection (2), a document is an exempt document if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency."

84. Section 39 does not apply:

"... to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest." (sub-section 39(2))

85. Mr Hanks submitted that disclosure of the Operations Manual would not, on balance, be in the public interest because the effectiveness of the Job Network programme and ensuring that Commonwealth funds are secure requires that there be an arm's length assessment of the financial viability of tenderers. Referring to the case of Re Connolly and Department of Finance (1994) 34 ALD 655 (Deputy President McMahon), Mr Hanks submitted that disclosure of the processes used to check tenderers' financial viability would reduce the Commonwealth's capacity to get proper value for its money when purchasing services for the Job Network programme. In doing so, the Commonwealth's financial interests would be affected.

86. Before considering whether or not there is a public interest in disclosure of the document, I must first consider whether or not the Operations Manual comes within sub-section 39(1) at all. If it is to do so, disclosure of the document must have an effect on the financial or property interests of the Commonwealth and that effect must be one which can be described as "a substantial adverse effect". Those words have been considered in a number of cases and I set them out in a previous decision, Re Bayliss and Department of Health and Family Services (unreported, (1997) Decision No.12277, 10 October, 1997):

"40. The phrase 'substantial adverse effect', and in particular the word 'substantial', have been considered in a number of cases. The word 'substantial', is not one of clear meaning. There are at least two alternative senses in which it may be used, on the one hand it may mean large or weighty or of considerable amount, on the other, it may mean real or of substance as opposed to nominal or illusory. In Palser v. Grinling (1984) 1 All ER 1 Viscount Simon held that in the context in which he had to consider it the word 'substantial' meant 'considerable, solid or big'.

41. In Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors (1979) 27 ALR 367 Bowen CJ and Deane J considered the words 'substantial loss or damage'. Bowen CJ at page 374 said:

'The word 'substantial' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word implores a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.'

42. Deane J at page 382 said:

'The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision. In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size ... As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word 'substantial' in s45D(1).'

43. In Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551, Beaumont J considered whether reports of an independent review of the Legal Department of the respondent were exempt within the meaning of paragraph 40(b) of the Act. Beaumont J said that it is possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say on page 564:

'However, I am not persuaded that any such effect, even if adverse, could fairly be described as 'substantial' in its impact. In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out.'

Beaumont J was considering section 40 as it existed before it was replaced in 1983. The particular words which he considered, however, have not been varied and are still relevant.

44. Muirhead J has also considered the expression 'substantial adverse effect' as it appears in section 40 in the case of Marco Ascic v Australian Federal Police (1986) 11 ALN N184. Muirhead J considered the passage from the Harris case to which I have referred above and said:

'The reference to 'gravity' in that dictum (and I say so with respect) causes me some difficulty. 'Substantial' is a word of common usage which can stand on its own feet and the word ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s. 45D of the Trade Practices Act which refers to 'substantial loss or damage' his Honour's words that 'substantial loss or damage ... includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal' appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations.' (page N185)

45. This Tribunal, presided over by Beaumont J, has considered paragraph 40(1)(c) in Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219 (Mr McMahon, then Senior Member and Dr Renouf, Member). Beaumont J said at page 222 that the difficulties in establishing that 'substantial adverse effects' will occur are formidable. This was referred to by the Tribunal in Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577 (Deputy President Todd, Senior Member Balmford and Mr Cohn, Member). The Tribunal said:

'If we had been approaching the present matter in, as it were, a vacuum, we might have been tempted to think that the difficulties were not so formidable. But the fact is that the practice of the respondent agency is stated to be what we might call a generous one. We have already set out the agency's guidelines. It is perfectly true that in general terms this Tribunal is not bound by an agency's guidelines, but that is not the point here. We are uncertain to what extent they are applied (see T26), but they exist as a fact, and their existence in that form seems to us to undermine the suggestion of substantial adverse consequence.' (page 585)

46. Finally, I will refer to the conclusion adopted by the Tribunal in Re Thies and Department of Aviation (1986) 9 ALD 454 (Deputy President Thompson, Senior Member Hallowes and Mr Trinick, Members) that a 'substantial adverse effect' 'connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person' (page 463).

47. ... It seems to me that the ordinary meaning of the words 'substantial adverse effect' leads to a conclusion that something more than 'concern' is required before the adverse effect can be said to be a substantial adverse effect. Concern may be generated by matters of many differing degrees of gravity. What is required by the exemption in paragraph 40(1)(d) is made out is an adverse effect that is real or of substance and not that which is insubstantial or nominal. That is consistent with the judgements of Federal Court in Ascic and in Tillmans Butcheries by both of which I am bound."

87. This was the interpretation of the words "a substantial adverse effect" adopted by Deputy President McMahon in Re Connolly when considering the release of documents concerning the Commonwealth Government's strategy for the disposal of Australia's uranium stockpile. Evidence was given as to the manner in which uranium was marketed. Most was sold on long term contracts based on a fixed price or on formulae using spot market indicators. If there were to be a 5% drop in the spot price, there would be a significant reduction in the value of Australia's stockpile. The spot market is characterised by requests for quotes for relatively small amounts of uranium but requests may be made in respect of larger amounts. When the outcome of a request for a quote becomes known, either formally or informally, it is factored into the calculation of the published spot price.

88. There can be no doubting Mr Campbell's evidence that the Commonwealth's expenditure on particular entities would be at risk if it entered contracts with those entities to provide services in the Job Network programme and if those entities were not to prove financially viable. Mr Hanks has gone further, however, and submitted that a tenderer would be able to manipulate the financial data it presents if it were to be aware of the processes and criteria used by DEWRSB in assessing financial viability. Mr Campbell's evidence was to the effect that the integrity of the next tender process would be compromised if DEWRSB were to disclose to a particular tenderer the financial viability model used to assess details of the financial viability of tenderers.

89. In considering this submission, I have looked first to those documents numbered 55-89 and 99-106, which form part of the Operations Manual. As I have found above, those documents set out processes. Some of those processes are purely mechanical and are directed to ensuring that documents are placed in the correct place. The procedures vary slightly according to the nature of the tenderer e.g. whether an individual or a company. Some of the processes are directed to checking certain information and others to making certain assessments. In so far as the documents refer to assessments, the criteria upon which those assessments are made are not included in documents numbered 55-89 and 99-106. Those documents contain certain "triggers" or "benchmarks" which, if met by a particular tender, determines the course that a tender is to take from that point.

90. Those documents reveal the financial viability model or models upon which the financial viability of tenderers has been assessed only in the most general terms. On the evidence that has been given, I am not satisfied that the information contained in the documents, whether it relates to procedures, checking information or making assessments, would reveal the criteria upon which that model is, or those models are, based or any material which would enable a person to determine those criteria. Revelation that certain checks, or that certain courses of actions are followed upon certain triggers' or benchmarks' being met, do not of themselves reveal particular criteria or the weighting to be given to any criteria. It does not of itself reveal the model or models to be used to assessed financial viability. I am not satisfied on the evidence that the information in those documents would enable a person, using other sources of information, to determine the nature of the model or models upon which financial viability is assessed.

91. Of the remaining documents from the Operations Manual, I have reached the same conclusion in relation to folios 138-141 and the final seven lines of folio 156. They set out in a textual form that which has been set out in documents 55-89 and 99-106. For the same reasons, I have reached the same conclusion in relation to folios 157 and 158 and the first eight lines of folio 156.

92. The remainder of folio 156 is a different matter. All but the final seven lines of the remaining lines of text on that folio reveal something more of the model or models upon which a tenderer's financial viability is assessed. The information in those lines of text leads me to conclude that it is reasonable to expect that a person would be able to ascertain some of the criteria by which DEWRSB assesses a tenderer's financial viability. He or she may be able to ascertain the relative weight to be given to some of those criteria by using the information contained in folio 156 but would not be able to ascertain all of those relative weights. When taken with certain "triggers" or "benchmarks" there is a possibility that the relative weight of some of the criteria may be able to be ascertained.

93. Would disclosure under the FOI Act of that type of information and of the information in the remaining documents regarding the processes and assessments of tenders have a substantial adverse effect on the manner in which DEWRSB assesses a tenderer's financial viability and so on the Commonwealth's financial or property interests? As Mr Campbell states in his affidavit, the Commonwealth is a purchaser of services and wishes to obtain value for money. It purchases those services by requiring those engaged in the provision of them to compete with each other for the right to provide them and to be assessed against certain criteria using certain processes. In this regard, a distinction must be drawn between this situation and a situation such as that which was considered in Re Connolly. In the situation in that case, the Commonwealth was itself engaged in a competitive activity i.e. the sale of uranium. In this, the Commonwealth was not itself engaged in a competitive activity. Those who submitted tenders to it were engaged in the competitive activity of providing employment services. DEETYA, on the other hand, is no more engaged in the competitive activity of providing employment services than a person who obtains quotations from a number of builders who are engaged in the building industry, to build a verandah on his or her house is competitively engaged in the building industry.

94. The fact that DEETYA purchased services by requiring those engaged in the provision of them to compete with each other for the right to provide them and to be assessed against certain criteria using certain processes does not in itself lead automatically to the conclusion that there would be the relevant substantial adverse effect were tenderers to be given access to the process and the criteria (all or some of them) to be used. It is reasonable to expect that an agency engaged in an enterprise in which it is procuring services has appropriate checks and balances in place to ensure the accuracy of the information supplied to it by a tenderer. The information required in the Tender Summary (summarised in paragraph 36 above) itself points to the general nature of some of the checks and balances which would be open to DEWRSB were it to check the veracity of the information provided. Even without a knowledge of the criteria and processes by which tenders will be assessed, it is open to a tenderer to manipulate the information he or she is required to give. It can be manipulated to show its current and projected financial situation in the best light.

95. On the evidence that is available, I am satisfied that, if the criteria and processes were known by the tenderers, DEWRSB would, and could reasonably be expected to, continue to have the same opportunities to identify any attempt to manipulate information to fit any criteria revealed in the Operations Manual. Those opportunities could not reasonably be expected to be curtailed by the fact that tenderers have knowledge of the criteria and procedures. Whether the precise criteria and procedures are known or not, the information required of tenderers remains the same and any need to check that information remains the same. There is no evidence to support a finding that the integrity of information obtained from independent checks, if any, could be expected to be compromised. I have specifically referred to tenderers rather than limiting my consideration to revelation of the information to Staff Development. That follows in part from the fact that, apart from certain qualifications in relation to personal affairs under section 41 and business affairs under section 43, the right of access to information under the FOI Act is not determined in any manner by the particular interests of the person requesting it. It also follows in part from the effect of sections 3 and 11. Section 3 speaks of extending "... as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth". Section 11 provides that "every person has a legally enforceable right to obtain access in accordance with the ..." FOI Act. The right is limited only be the qualifications in the FOI Act and I have referred to two such qualifications. It follows that, subject to such qualifications, information accessible under the FOI Act by one tenderer, is available to all tenderers, as, indeed, it is to all the world.

96. It follows that I am not satisfied that revelation of the Operations Manual would have an effect of any significance on the future assessment of tenders and so would not have such an effect on DEWRSB's ability to obtain value for money in its letting of the contracts in the Job Network Programme. Consequently, I am not satisfied that disclosure of the Operations Manual would have a substantial adverse effect on DEWRSB's financial or property interests, or on those of the Commonwealth. It is, therefore, not a document which comes within paragraph 39(1)(a) and so is not exempt under section 39.

Operations Manual - claim for exemption under section 40

97. Mr Hanks relied upon paragraphs 40(1)(a), (b) and (d) which provide that, subject to sub-section 40(2):

"... a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;

...

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; ..."

Sub-section 40(2) provides that:

"This section does not apply to a document in respect of a matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

98. Mr Hanks supported his submission for exemption by reference to Re Barrell and Australian Broadcasting Commission (1985) 7 ALN N129 (Sir William Prentice, Senior Member, Mr Grant and Mr De Maria, Members). Mr Barrell had written a critical appreciation of a film and devised a sound accompaniment for a sequence of disconnected film shoots as part of the selection for a course he had applied unsuccessfully to undertake. The Tribunal found that a person, if given access to the film and the film shoots, would be able to recreate the questions put in the tests. It continued:

"But we find ourselves convinced that both documents contain information as we have set out in para 22 above as well as enabling deductions to be made as to style of answer which did not find favour, which together could, if disclosed, reasonably be expected to allow some prospective candidates to be better able to prepare for and gain advantage at examination; which could reasonably be expected in turn to lead to false estimates of their knowledge and abilities, and to lead to erroneous selection of candidates as to their degree of creativity, imagination and technical competence.

24. We are also of the opinion that release of the documents to the applicant could reasonably be expected to require the respondent to incur substantial expense by way of providing a number of alternative examinations with the intention of changing the tests frequently and of course if the content of successive tests were revealed under the FOI Act no doubt thought would have to be taken as to whether the subject matter of the tests should be abandoned after each such revelation." (page N130)

99. Mr Hanks submitted that the Operations Manual records procedures and methods for testing the financial viability of tenderers for Commonwealth contracts. The effectiveness of the tests depends on their details remaining confidential so that the data to be evaluated as part of the test is unaffected by any (even unconscious) bias or selection. If the details of the processes and criteria were published, Mr Hanks continued, some tenderers would gain an advantage by giving false estimates of financial viability and so an increased risk to the Commonwealth. The Commonwealth would incur considerable cost in developing new processes were the Operations Manual to be disclosed under the FOI Act.

100. The first question which must be answered before I can consider whether the documents come within paragraphs 40(1)(a) or (b) is what is meant by the words "tests, examinations or audits" used in paragraphs 40(1)(a) and (b). They were not considered by the Tribunal in Re Barrell. In Ascic, the Federal Court considered examination papers, which clearly came within the term "examinations", and so had no need to consider the meaning of the words further. I have looked to the ordinary meanings of those words in so far as those meanings are relevant. "Test" means "... That by which the existence, quality, or genuineness of anything is or may be determined ...". "Examination" means "... The action of testing or judging by a standard ... Investigation by inspection or experiment ...". "Audit" means "... Official examination of accounts with verification by reference to witnesses and vouchers ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993).

101. The procedures set out in the Operations Manual are not an audit as there is no examination of each tenderer's accounts with a view to verifying them. There is an assessment of the information given by the tenderers and against certain criteria. Certain checks of tenders may be carried out but they do not extend to the checks envisaged by an audit and, in particular, do not extend to a check and verification of the tenderers' accounts. The tenders are scrutinised by reference to certain standards. Enquiries are made and an assessment made. That is an examination in the sense of an enquiry or investigation. It is also a test in the same sense.

102. The information in the Operations Manual reveals the procedures or methods by which those tests or examinations are conducted. Is it the case that disclosure of that information "would, or could reasonably be expected to ... prejudice the effectiveness" of those procedures or methods? The word "would" requires no clarification. The words "could reasonably be expected to" appear in a number of other sections of the Act including section 43. That section was considered by the Full Court of the Federal Court in Attorney-General v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ). A majority of the Tribunal had earlier concluded in relation to sub-paragraph 43(1)(c)(ii) that:

"The next question to be asked is whether the disclosure of the information could reasonably be expected to produce certain consequences. This does not mean that those consequences must be regarded as reasonable from a public interest point of view. It means whether it is more probable than not, looked at from an objective point of view, that the consequences will flow. This approach was broadly adopted by the Tribunal in Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal (1985) 3 AAR 1" (pages 105-106)

103. Bowen CJ and Beaumont J said in their joint judgement:

"It was submitted on behalf of the applicants that the majority of the Tribunal erred both in the construction of s 43(1)(c)(ii) and in the failure to hold that provision to be applicable in the present circumstances. In aid of the submission, reference was made to some observations of Woodward J as to the meaning of a similar provision, s 37(1) of the Act, in News Corporation Ltd v National Companies and Securities Commission (1984) 57 ALR 550 at 561-2: 'I think that the words "would, or could reasonably be expected to ... prejudice" mean more than "would or might prejudice". A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read.'

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. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J." (page 106)

104. Sheppard J placed greater emphasis upon the meaning of the word "expect" than on the word "reasonably" for he did not:

"... feel able to derive from the presence of the word 'reasonably' in the relevant expression a great deal of assistance. The difficulty is to give full weight to the meaning of the word 'expected'. It is only then that one can turn one's mind to the question of the significance of the qualification of it by the word 'reasonably'. The words are expressed in the passive voice - 'could reasonably be expected'. What is required is the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information." (pages 111-112)

105. The claim for exemption under paragraphs 40(1)(a) and (b) is based on Mr Campbell's evidence that disclosure of the Operations Manual would give some tenderers an advantage by giving false estimates of financial viability so increasing the risk to the Commonwealth. Having regard to Mr Campbell's evidence as well as the tender documentation, I am not satisfied that it is reasonable to expect that potential tenderers may alter the substance of the tenders they submit. The information, which is required, is limited by the information sought in the forms that they must complete. Those who wish to enhance or falsify information have the opportunity to do so even now when they do not know the contents of the Operations Manual.

106. As I have already said, it is reasonable to expect that an agency engaged in an enterprise in which it is procuring services has appropriate checks and balances in place to ensure the accuracy of the information supplied to it by a tenderer. The information required of a tenderer by the Tender Summary (summarised in paragraph 36 above) itself points to the general nature of some of the checks and balances which would be open to DEWRSB were it to check the veracity of the information provided. Even now, that information could be manipulated by a tenderer to show its current and projected financial situation in the best light and so achieve a favourable result whether or not he or she knew of the contents of either the procedural framework of the Operations Manual or any criteria revealed in it. On the evidence that is available, I am satisfied that, if the criteria and processes were known by the tenderers, DEWRSB would, and could reasonably be expected to, continue to have the same opportunities to identify any attempt to manipulate information to fit any criteria revealed in the Operations Manual. Those opportunities could not reasonably be expected to be curtailed by the fact that the tenderer has knowledge of the criteria and procedures. Whether the precise criteria and procedures are known or not, the information required of a tenderer remains the same and any need to check that information remains the same.

107. The claim under paragraph 40(1)(d) is based on Mr Campbell's evidence that, were the assessment of the financial viability of tenderers to be jeopardised, the proper and efficient operation of the Job Network Program administered by DEWRSB would be adversely affected. For the reasons I have given above, I do not accept that DEWRSB's assessment of the tenderers' financial viability would, or could reasonably be expected to be, affected. I am not satisfied, therefore, that disclosure of the Operations Manual would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. It is not a document which is exempt under section 40.

Operations Manual - claim for exemption under section 43

108. Mr Hanks submitted that the Operations Manual is exempt pursuant to section 43 of the FOI Act and, in particular, to paragraphs 43(1)(a) and (b) and sub-paragraph 43(1)(c)(i). They provide:

"A document is an exempt document if its disclosure under this Act would disclose:

(a) trade secrets;

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:

(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; ..."

109. The effect of sub-section 43(2) is that the provisions of sub-section 43(1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in that document of information concerning the person in respect of his or her business or professional affairs or the business, commercial or financial affairs of an undertaking of which the person is a proprietor or acting on behalf of the organisation. Sub-section 43(3) provides that:

"A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth or a State or by a local government authority."

110. The expression "trade secret" has been considered by Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111 (Davies, Wilcox and Einfeld JJ). The Full Federal Court considered a number of authorities and I will return to its consideration later in these reasons. For the moment, I will refer to its conclusion in which it said:

"For the purposes of the law, it is rarely necessary to distinguish strictly between, on the one hand, 'trade secrets' and, on the other hand, confidential information analogous to trade secrets which, because of its nature should also be protected. Similarly, it would be difficult to find a trade secret which did not also fit within the totality of the descriptions in s43(1)(a), (b) and (c). The Administrative Appeals Tribunal, when dealing with an issue under s 43, may not find it necessary to state definitively the ambit of the term. If information did not fall within s 43(1)(b) and s43(1)(c)(i), it would be unlikely to be exempt simply because of s 43(i)(a)." (page 122)

111. I have decided in the following paragraphs that the information in the folios of the Operations Manual in dispute in this case does not fall within the exemptions in paragraph 43(1)(b) or sub-paragraph 43(1)(c)(i). On the view of the Full Court, that means that the information is unlikely to be a trade secret. That, however, does not finally resolve the matter. In Searle, the Full Court went on to consider the various contexts in which the expression "trade secrets" is used and its ordinary meaning in the English language as "'a device or technique used in a particular trade or (trans) occupation and giving an advantage not generally known'." (page 119)

112. The determination of what is a trade secret is primarily a question of fact but the Full Court referred to the judgement of Staughton LJ in Lansing Linde Ltd v Kerr (1990) 21 IPR 529 at 536:

"In Faccenda Chicken Ltd v Fowler [1985] 1 All ER 724 Goulding J at first instance had defined three classes of information, as follows:

(i) information which, because of its trivial character or its easy accessibility from public sources of information, cannot be regarded by reasonable persons or by the law as confidential at all:

(ii) information which the servant must treat as confidential but which once learned necessarily remains in the servant's head and becomes part of his skill and knowledge;

(iii) specific trade secrets so confidential that, even though they may necessarily have been learned by heart and even though the servant may have left the service, they cannot lawfully be used for anyone's benefit but the master's.

There the dispute was as to the second class so defined. Goulding J expressed the view that it could be protected by an express covenant; this Court was of the contrary opinion: see Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617; Faccenda Chicken Ltd v Fowler [1987] Ch 117. Subsequently other judges have touched on the topic in Balston Ltd v Headline Filters Ltd [1987] FSR 330 and Lock International plc v Beswick [1989] 1 WLR 1268; [1989] 3 All ER 373.

It appears to me that the problem is one of definition: what are trade secrets, and how do they differ (if at all) from confidential information? Mr Poulton suggested that a trade secret is information which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret. I would add, first, that it must be information used in a trade or business, and, secondly, that the owner must limit the dissemination of it or at least not encourage or permit widespread publication .

That is my preferred view of the meaning of trade secret in this context. It can thus include not only secret formulae for the manufacture of goods but also, in an appropriate case, the names of customers and the goods which they buy.'" (page 120)

113. Bearing these concepts in mind, I have concluded that the information in the folios of the Operations Manual does not disclose a trade secret. While I am satisfied that the information is not easily accessible from public sources and it may be that officers of DEWRSB are required to treat the information as confidential, it is not information which can be said to be used in a particular trade or business and which gives DEWRSB an advantage in that particular trade or business. As I have found below, DEWRSB is not engaged in any trade, business or commercial activity but in the provision of government services through the agency of others. It cannot be said to have competitors in that endeavour although those through whom it may potentially provide those services will be in competition with each other. As DEWRSB is not using its Operations Manual in a trade, business or commercial activity, it does not have competitors in its activities and so cannot be caused harm by disclosure of the Operations Manual to a competitor. The information in the Operations Manual is not a trade secret. It is not exempt pursuant to paragraph 43(1)(a).

114. That brings me to paragraph 43(1)(b). I have already set out the meaning of the expression "would, or could reasonably be expected" (see paragraphs 102-104 above). The next aspect to consider is whether the information concerned has "commercial value". Among its ordinary meanings are "... Engaged in commerce; trading ... Of or relating to commerce or trade ... Such as passes current in the transactions of commerce ... viewed as a matter of profit and loss ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991) . Black's Law Dictionary, 6th edition, 1990 defined "commercial" as "... Relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce". "Commerce" is the "interchange of goods and commodities ... trade; business ... (The Macquarie Dictionary, 2nd edition, 1991).

115. Mr Hanks submitted that the commercial value of the information in issue in this case lies in its capacity to assist the Commonwealth in minimising the risks associated with purchasing services for the Job Network Programme and in the value that the information may have to other potential users. I accept that the preparation of the procedures and processes reflected in the Operations Manual involved a significant expenditure for DEWRSB. In relation to its assessment of the tenders it receives, I also accept that the Operations Manual assists DEWRSB in assessing the financial viability of those tenders. I also accept that potential tenderers would also be assisted were they to know the criteria. The information in the Operations Manual has value both to DEWRSB and to potential tenderers. That is a value that exists for those engaged in, or potentially engaged in, a competitive process.

116. That something is used in a competitive process does not of itself lead to the conclusion that it has "commercial value". The word "value" has various ordinary meanings according to its context. In so far as those meanings are relevant, they include: "That amount of some commodity, medium of exchange, etc., which is considered to be an equivalent for something else; a fair or adequate equivalent or return ... The material or monetary worth of a thing; the amount at which it may be estimated in terms of some medium of exchange or other standard of a like nature ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991). The word "commercial" means "... Engaged in commerce; trading ... Of or relating to commerce or trade ... Such as passes current in the transactions of commerce ... Viewed as a matter of profit and loss ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991). "Commercial" is defined in Black's Law Dictionary, 6th edition, 1990 to mean "... Relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce ...". The meanings of the word "commerce" include "... 1. Exchange between men of the products of nature and art; buying and selling together; exchange of merchandise, esp. on a large scale between different countries or districts ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991).

117. Considering the two words in the context of paragraph 43(1)(b), the information, which is the subject of the exemption, is that information which would have some worth, either in monetary or some other form, when exchanged between those engaged in a transaction for the sale or exchange of that information. The essence of the meaning of "commercial value" is that the information must have a worth to a person other than the agency which possesses the information. To have "commercial value" in the sense in which it is used in paragraph 43(1)(b), it is not enough that the information in the document enables an agency to make, for example, sound economic or commercial decisions. Such information may be concerned with the proper and efficient operations of an agency. That is properly the subject of a claim for exemption under section 40. Paragraph 43(1)(b) is not concerned with protecting from disclosure that which would, or could reasonably be expected to affect the proper and efficient operations of an agency. It is concerned with protecting from disclosure that information for which the agency could obtain some worth were it to exchange it with another. It is concerned with commercial value and not with the internal operations or management of an agency.

118. In this case, I have accepted that the information has value to DEWRSB. There is no evidence that the information in the Operations Manual would have any worth if DEWRSB were to attempt to sell it or to exchange it. I have accepted that potential tenderers may have an interest in obtaining the information but their interest does not of itself equate with the information's having a worth to them in the sense of their being prepared to give money, or money's worth, in exchange for the Operations Manual.

119. Mr Campbell has deposed to DEWRSB's being able to sell much of its expertise, including its expertise in assessing financial viability, to other government agencies. His assessment is based on its having pioneered this particular area of government activity and its work having been shown to have been successful. He has also said that DEWRSB can "reasonably expect" to licence the use of the techniques and standards within the broader commercial sector. If information is to have a commercial value, there must be some evidence that there is indeed a demand for the information even if the demand is a very modest demand. It must also be something that is capable of being sold in that it does not, or parts do not, belong to another.

120. Mr Campbell's evidence satisfies me that there may be a market and that DEWRSB expects that there is such a market. It does not, on the balance of probabilities, satisfy me that there is such a market in which an agency other than DEWRSB will exchange money or money's worth for the information revealed in the Operations Manual. The successful operation of a procedure in assessing the financial viability of those tendering to deliver certain employment services does not necessarily mean that the procedure will translate to the procurement of other services and of goods. Financial viability is not necessarily a static concept. What is financially viable in one context may, or may not, be financially viable in another. The factors considered relevant in assessing financial viability may vary from agency to agency and programme to programme. Factors may include, but not be limited to, the following: the history of the procurement of the particular goods and services; the experience of those having provided the goods and services in the past; the weight which is to be attached to that experience and the assistance it gives in achieving objectives and the public policies which are sought to be achieved; the reputation of the tenderers for reliability; the financial backing available; and the past and projected financial returns of the tenderers. The fact, therefore, that government is increasingly moving into the role of purchasing, rather than itself providing, services does not lead to the conclusion that a procedure and criteria established for the procurement of one will be useful in the procurement of others. That fact does not lead to the conclusion that another agency in the Commonwealth will wish to purchase the information in the Operations Manual from DEWRSB.

121. An examination of the Operations Manual reveals that, while DEWRSB is entitled to use it and its components, it does not own the intellectual property in one or more of the components making up the Operations Manual. DEWRSB cannot sell that which it does not own. That is not to say that procedures and tests incorporating such components are necessarily without value but, without more, it throws doubt upon the marketability of the Operations Manual and so upon whether it has any value. That is particularly so when regard is had to paragraph e) of clause 3.3 of the licensing agreement between the Commonwealth and the licensor of one of the computer models incorporated in the procedures for assessing financial viability of the tenders. That paragraph provides that the Commonwealth may not:

"incorporate the Software in any other software package or in any product produced for commercial exploitation" (agreement exhibited to affidavit of Ms Elizabeth Lee sworn on 9 August, 1999)

122. After taking all of these matters into account, I am not satisfied on the balance of probabilities that the information disclosed in the folios of the Operations Manual, apart from line 8 and all following lines of folio 156 in issue in this case, has a commercial value to DEWRSB. Line 8 and all following lines of folio 156 refer to computer models the ownership of which may or may not rest with DEWRSB. Given the computer models revealed in that passage, I am satisfied that they may have commercial value to their owner or owners.

123. Would, or could it reasonably be expected that, the commercial value of any such computer model be destroyed or diminished if the information on folio 156 were to be released? There is no evidence that the name or names ascribed to any model or models does of itself, or do of themselves, have that result. Apart from any name or names of any computer models, the information about them in folio 156 is of such a general nature that I am not satisfied that its or their commercial value would be diminished in any manner, let alone destroyed.

124. It follows that I am not satisfied that the information in the Operations Manual has any commercial value. As it does not have a commercial value, its disclosure under the FOI Act cannot, and cannot be reasonably expected to, destroy or diminish any such value. I am satisfied that it is not exempt pursuant to paragraph 43(1)(b).

125. In considering paragraph 43(1)(c), the first issue is whether the documents contain any information concerning the affairs of an "organization or undertaking". If it does, then consideration needs to be given to whether the information in the Operations Manual concerns the "business, commercial or financial affairs" of that organisation or undertaking. Only if it does need I look to the exemptions specified in sub-paragraphs 43(1)(c)(i).

126. In my view, DEWRSB is not an "organization" for the purposes of the FOI Act. As a Department, it is encompassed within the meaning of an agency as that term is defined in sub-section 4(1). Were its affairs to be the subject of the exemption in paragraph 43(1)(c), Parliament could have expressly done so either by referring to a Department or, if it wished to encompass prescribed authorities and eligible case managers, by referring to an agency. That fact, taken with the express inclusion in the concept of "undertakings" carried on by the Commonwealth or an authority of the Commonwealth by virtue of sub-section 43(2), leads me to conclude that the word "organization" used in paragraph 43(1)(c) does not incorporate an organisation which is a Department.

127. The Operations Manual concerns the affairs of the Job Network Programme, which is administered and implemented by DEWRSB. The Job Network Programme is an undertaking, in the sense of an "... Action, task, ... undertaken or begun; an enterprise ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993) that is carried on by DEWRSB. As DEWRSB is a Department, the undertaking is carried on by the Commonwealth or an authority of the Commonwealth.

128. Does the information in the Operations Manual concern Job Network's business affairs? The expression "business or professional affairs" was considered by Beaumont J in Young v Wicks (1986) 79 ALR 448. He concluded that documents, which related to Ms Young in her capacity as senior pilot employed by the Queensland government in its ministerial air unit, did not relate to her business affairs and said:

"As a government employee, the applicant is not conducting any business or carrying on any commercial operation in her own right or on behalf of any other person. Her activities are carried out pursuant to her contract of government employment. It follows, in my view, that the information in the subject documents does not concern the applicant in respect of her 'business affairs' within the meaning of s 43(1)(c)(i)." (page 453)

129. His Honour did not need to dwell on the meaning of the word "business" but that has been considered by, among others, Sackville J in Fasold v Roberts (1997) 145 ALR 548 when considering whether the Noah's Ark Research Foundation is a business for the purposes of various fair trading legislation enacted in the Australian States and Territories. He reviewed a number of authorities:

"It is generally accepted that the word 'business', to use Mason J's phrase, has a 'chameleon-like hue' but must take its meaning from the particular statutory context: FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 378-9; 39 ALR 521; State Superannuation Board (NSW) v FCT (1988) 82 ALR 63 (Fed C of A, Sheppard J), at 72; O'Brien v Smolonogov (1980) 144 CLR 1 at 8-9; 29 ALR 577, Mason J considered that the word 'business' ordinarily denotes activities undertaken as a commercial enterprise in the nature of a going concern - ie 'activities engaged in for the purpose of profit on a continuous and repetitive basis'. His Honour observed, however, that the word took its flavour in that case from the statutory expression 'carrying on business'. In Hungrier v Grace (1972) 127 CLR 210 at 216-17, Barwick CJ cited the observations of McCardie J in Edgelow v MacElwee [1918] 1 KB 205 at 206 that, in order for a person to be one 'whose business ... is that of money-lending', there must be more than occasional and disconnected loans: 'the word "business" imports the notion of system, repetition and continuity'. Barwick CJ accepted (at 217) that 'system and regularity are involved in the carrying on of a business', although he did not think it followed that one who conducts transactions systematically and regularly is necessarily carrying on a business in those transactions.

In State Superannuation Board v FCT, Sheppard J had to consider whether the administration of a superannuation scheme for government employees constituted the carrying on of an activity in the nature of a business. His Honour expressed the view (at 72) that the dictionary definition of 'business' as 'trade, commercial transactions or engagements' was helpful in ascertaining its meaning. In Durant v Greiner, Rolfe J considered that the dictionary definition shed light on the meaning of 'business', as used in the FTA (NSW). In that case, his Honour held (at 128) that the provision of State schools, at which attendance is compulsory and free of charge, could not be characterised as a 'business'.

I agree with Rolfe J that, generally speaking, the word 'business' as used in the Fair Trading Acts, bears the dictionary meaning of 'trade, commercial transactions or engagement'. However, that will not always carry matters very far. I think that in addition, ordinarily at least, the concept of 'business' imports, as Barwick CJ suggested in Hungrier v Grace, a notion of system, repetition and continuity. I appreciate and accept that due regard should be paid to the 'wide and flexible meaning' attributed to the word 'business' in common usage: Grieve v Commissioner of Inland Revenue [1984] 1 NZLR] 101 at 111, per Richardson J. I also recognise that each case must depend on its particular circumstances. Nonetheless, in general, for an undertaking to constitute a business it will have to be conducted with some degree of system and regularity.

The present case involves an organisation which is said to be carrying on a business otherwise than for profit. The nature of non-profit enterprises can vary from those which are essentially commercial in character (cf Re Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd (1978) 22 ALR 621 (Fed C of A, FC) at 648-9, per Deane J) to those which exist entirely for charitable or altruistic purposes. In my view, the less commercial the character and objectives of an organisation, the greater the degree of system and regularity required for the organisations (sic) activities to be characterised as a 'business'. This approach, in my view, is consistent with the purposes underlying the Fair Trading Acts, namely to establish standards of conduct applicable to commercial and consumer transaction: Prestia v Aknar at 180, 183. If the net is cast too widely, the legislation will apply to transactions that are not truly commercial in character and confer protection on persons who cannot fairly be described as consumers." (pages 587-588).

130. In this case, the context is that of the FOI Act which gives every person a legally enforceable right of access to documents of an agency and to official documents of a Minister other than those which are exempt. In general terms, the exemptions are directed to "... protect personal privacy and confidential commercial information, vital national interests such as security and defence and the conduct of government activities for which confidentiality is essential. ..." (Hansard, House of Representatives, 18 August, 1981, page 39). The expression "business affairs" must be considered against this background. The expression should not be interpreted so broadly that what might be called the business of government is caught within it. There are specific exemptions to provide the protections necessary to ensure that disclosure does not impede the effective conduct of government activities.

131. The Job Network Program is an undertaking that is carried out by DEWRSB with a degree of system and regularity. It is not carried out for profit and, although concerned with the purchase of particular services, is not concerned with the trade of those services. It is carried out to provide employment services to those members of the Australian community seeking employment. For over fifty years, the Commonwealth has provided employment services to the community. The Commonwealth has done so by using public funds either to employ officers to provide services or, in more recent years, by both employing officers and engaging some in the private sector to provide the services. It now seeks to provide those services not through its own employees, as it were, but by purchasing, with public funds, the services of others to provide employment services. Whether it provides employment services through its own employees or by purchasing them from private enterprise, the Commonwealth still seeks to fulfil its responsibility to provide them to the public. It is not an activity that is consistent with a business or the conduct of a business. Consequently, the Job Network Programme's affairs cannot be said to be "business affairs" within the meaning of paragraph 43(1)(c).

132. I have already considered the meaning of "commercial" in the context of paragraph 43(1)(b). "Commercial ... affairs" of an organisation or undertaking must be the affairs relating to or connected with trade or commerce in general. There must be some element of trade or exchange. The Job Network Program is not concerned with the trade or exchange of employment services but with the provision of those services. It may be that those who tender to provide those services are connected with the trade and traffic in those services. The purchaser of those services (i.e. DEWRSB) does not become so connected simply by purchasing them. All that it is doing in implementing and administering the Job Network Program is purchasing the services it considers necessary to implement it and, in doing so, seeks to obtain those services at the best price and from those who can deliver them. Although operating on a larger scale, with a larger budget, for a different purpose and in the public, rather than the private interest, it is in no different position from a person who, having decided to build a house for his or her family by sub-contracting the various work, calls for tenders. Neither is engaged in the myriad of activities concerned with the trade or exchange of the services required to complete the project. The sub-contractor is not engaged in the trade or traffic of house bricks or plumbing services because he or she purchases either the bricks or the services to build a house. Similarly, DEWRSB, through the Job Network Program, is not engaged in the traffic or trade of the services it purchases to implement the Job Network Program.

133. In reaching this conclusion, I note that I may appear to be in conflict with authorities such as Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427 in which the Metropolitan Ambulance Service was found by the Victorian Administrative Appeals Tribunal to be engaged in trade or commerce. The Tribunal found that the contracting out of services is in itself evidence of commercial activity and that activity was pursued through a competitive tender process. It did so, however, against a background in which the Metropolitan Ambulance Service was involved in investment, as well as in other, activities. There is no such background in this case. In so far as Re Thwaites finds that involvement in a competitive tendering process is itself sufficient to lead to the conclusion that an agency is involved in commercial activity, I have reached a different conclusion for the reasons I have given.

134. Financial affairs are a different matter. They are affairs "... Of or pertaining to finance or money matters" (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and see also The Macquarie Dictionary, 2nd edition, 1991). There need be no element of commerce or business. I am satisfied that the Job Network has financial affairs connected with its operation. The information in the Operations Manual concerns Job Network in respect of its financial affairs in so far as it contains procedures and touches upon the criteria by which it will determine from whom it will purchase services with public money.

135. As I have already found, I am not satisfied on the evidence that has been given that it is reasonable to expect that potential tenderers may alter, modify or falsify the information they give if they are aware of the criteria by which their tenders are assessed and if they are aware of the procedures that are followed. The information they are required to give is set out in the forms that they must complete. Those who wish to enhance or falsify information have the opportunity to do so even when they do not know the contents of the Operations Manual. On the basis of the evidence that I have been given, I am not satisfied that any such alteration would, or could reasonably be expected to, adversely affect the administration of the Job Network Program. Knowledge of the criteria does not lead automatically to the conclusion that information in tenders will be, or can reasonably be expected to be, falsified and that DEWRSB's procedures will not, or cannot reasonably be expected to, be able to check and evaluate that information as it presumably does now.

136. Whether DEWRSB would, or could reasonably be expected to, alter its Operations Manual if its contents were disclosed under the FOI Act is a different matter. On the basis of Mr Campbell's evidence, I am satisfied that it can reasonably be expected that DEWRSB will consider that it needs to change it and will change it. It could also reasonably be expected that DEWRSB would then be likely to incur a significant cost in preparing those changes as it did in preparing the original, that would be a cost which could be said to be an adverse effect on its financial affairs.

137. Were that to occur, would those adverse effects be unreasonable? In Searle Australia Pty Ltd, the Full Court of the Federal Court said:

"If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or produce posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colkovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 441." (page 125)

138. What, then, is the public interest in the context of paragraph 43(1)(c) and generally in the context of the FOI Act? The notion of public interest was considered by Beaumont J in Harris when he said:

"In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (see Sankey v Whitlam (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 52)."

139. This approach, which was not challenged on appeal (Harris v Australian Broadcasting Corporation (1984) 51 ALR 581) has been adopted and applied in various cases in the Tribunal. The essential points made by those cases were summarised in Re Kamminga and Australian National University (1992) 26 ALD 585 (O'Connor J, President, Mr Attwood and Mr Julian, Members) when it said when considering public interest in the context of paragraph 36(1)(b):

"For para (b) to apply, it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306: Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant's personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551; unsuccessfully appealed on other grounds at (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purposes of policy making at a high level are not applicable in the present case." (page 588)

140. In the context of the administration of any programme of government, there is a public interest in ensuring that it operates efficiently and effectively, in terms of both outcomes and process, that it is administered fairly and without favour, that public money is properly spent and accounted for and that the programme meets its stated objectives. At the same time, there is a public interest in openness of the administration of the program so that, in so far as it is possible to do so, those who are affected by it can be aware of the criteria and processes by which they or their claims (in whatever form) are assessed. The public interest in openness extends to a public interest in the Australian people's being informed of such matters and being able to have confidence that the programme is administered in this manner. A further public interest lies in ensuring that unwarranted attacks are not raised upon the integrity of Australia's public servants who administer a programme

141. On some views, the submissions made on behalf of DEWRSB could be interpreted as arguing that, when services are purchased by government on the basis of competitive tenders, the need to protect that competitive process becomes the overriding and determining consideration and that it can only be done by refusing access to the criteria and processes for assessing tenders. If that were the correct view to take of the submissions and putting to one side for the moment the specific case of the Job Network Programme, I would not, without more, accept it as a general proposition. My reasons for rejecting it are based on a consideration of the policies for the procurement of goods and services for the Commonwealth generally. This was not a matter which was alluded to during the hearing but I drew it to the parties' attention while I was preparing these reasons and sought their submissions. In particular, I drew their attention to the Commonwealth Procurement Guidelines ("Guidelines") that are made by the Department of Finance and Administration pursuant to regulation 7(1) of the Financial Management and Accountability Regulations. Those Guidelines apply to the procurement of both goods and services. In addition, I also drew their attention to the Commonwealth Procurement Guidelines: Core Policies and Principles ("Core Policies and Principles document"). The Department of Finance and Administration issued those guidelines in March, 1998.

142. The Core Policies and Principles document states that it is intended to clarify what is required and expected in Commonwealth procurement activity. In particular, the Core Policies and Principles document stated that it allows:

"... agencies to decide how best to handle their affairs, taking into account their own circumstances and the nature of the markets in which they are operating. These core policies and principles are intended to strike a balance between prescription and empowerment so as to encourage agencies to obtain the best value from procurement, on a whole of life basis." (Introduction)

143. The Cores Policies and Principles document then sets out that the fundamental objective of the Commonwealth Government is to provide the means to deliver efficiently and effectively its programmes. It is intended to support that objective through:

"... core principles, which underpin the procurement activities of government agencies:

  Value for Money

  Open and Effective Competition

  Ethics and Fair Dealing

  Accountability and Reporting

  National Competitiveness and Industry Development

  Support for Other Commonwealth Policies" (Government Objectives)

144. The principle of Open and Effective Competition is expanded upon in section 2 of the Core Policies and Principles document. While emphasising that the principle requires effort and research to get the best possible outcome from the market and the need to provide appropriate opportunities to certain enterprises, the principle begins by stating:

"Open and effective competition is a central operating principle for all Commonwealth procurement. It requires:

  a framework of procurement laws, policies, practices and procedures that is transparent, i.e. laws, policies, practices and procedures governing procurement must be readily accessible to all interested parties;

  openness in the procurement process; and

  encouragement of effective competition through procurement methods suited to market circumstances."

145. That point is further elaborated upon under the heading of "Key Points":

"Openness and transparency

It is Commonwealth policy that:

  publicly available procurement opportunities must be notified consistently in ways that provide bidders with reasonable opportunity to:

- meet any pre-qualification requirements for participation in government business, and

- bid against particular requirements;

  the evaluation criteria for any particular procurement should clearly identify the relative importance of all relevant factors, and provide a sound basis for a procurement decision. Agencies should evaluate each offer applying only evaluation criteria and methodology notified to bidders in the request for tender documentation.

  those wishing to respond to opportunities must be given adequate information to enable them to do so effectively; and

  agencies offer bidders a written or oral debriefing on why their offers were successful or failed.

Agencies must choose methods that will promote open and effective competition to the extent practicable."

146. In written submissions requested after the conclusion of the hearing, Mr Hanks submitted that the Core Policies and Principles document are not relevant in this case. That is so, he said, because they were issued after the first round of tenders was called for. Rather, the Commonwealth Procurement Guidelines issued in March, 1997 ("1997 Guidelines") were relevant to the process for the first round of tenders. Those earlier guidelines were expressed to relate to the procurement of supplies, including any matter affecting contracts to procure supplies. Sub-regulation 4(1) of the Finance Regulations defined "supplies" to include "services that are to be performed for the Commonwealth". Citing cases such as Norbis v Norbis (1986) 161 CLR 513 at 519-520 and Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 at 449-450, Mr Hanks submitted that the 1997 Guidelines provide guidance, but do not bind, an agency in relation to the procurement of supplies. When the Commonwealth's purchase of employment services is considered against the 1997 Guidelines, it can be said to have conformed with all of the guiding principles which are relevant to it. Mr Hanks referred in particular to value for money, open and effective competition and ethics and fair dealing. The processes adopted by DEWRSB and its predecessor, DEETYA, had been assessed by the Australian National Audit Office ("ANAO"). In its Audit Report No. 7, entitled "Management and Implementation of the New Employment Services Market", the ANAO had expressed the general conclusion that "... the implementation of the new employment services market has been managed effectively and efficiently in accordance with announced Government policy" (paragraph 13). Mr Hanks also addressed the relevance of the 1997 Guidelines to decision making under the FOI Act. He submitted that those guidelines do not extend to the performance of duties under the FOI Act and do not affect the operation or application of the FOI Act. In particular, the qualified duty in section 18 to give a person access to a document that is not exempt is not a duty "in relation to the procurement of supplies".

147. As Mr Hanks submitted, the guidelines in the Core Policies and Principles document do not affect the operation or application of the FOI Act. Equally, the fact that the ANAO found that the procurement process adopted by DEETYA or its successor DEWRSB met the 1997 Guidelines does not affect the operation or application of the FOI Act. The relevance of the guidelines, whether they be found in the 1997 Guidelines or in the Core Policies and Principle document lies only in the fact that each consistently provides that, in so far as it is practicable, openness in the tender process, and in certain specific aspects of that process, is to be promoted. Their existence does not determine whether or not Mr and Mrs Van Putten should be given access to the documents they seek simply because that is the general policy. What their existence points to is that the mere fact that tenders are sought in a competitive environment and an environment in which there is a need for the Commonwealth to obtain value for money does not automatically lead to the conclusion that, in general terms and without reference to a specific programme, access should not be given to the criteria or processes by which the tenders are sought and assessed. On the contrary, openness is encouraged unless there is a reason for a contrary view to be taken. The Guidelines do no more than that and I will not rely upon them further.

148. I will return now to the particular circumstances with which I am concerned with regard to the Job Network Programme. Except in the form of a general assertion that openness would enable tenderers to manipulate the information they provide and reference to the competitive context in which tenders are sought, there is no evidence in this case to support the assertions. There is, for example, no specific evidence pointing to the manner in which information could be manipulated if documents revealing such matters as criteria or procedures were disclosed under the FOI Act. There is no specific evidence pointing to the manner in which a tender process in which a number of persons are competing against each other for the tender or tenders will be compromised if those persons are made aware of all, or some of, the processes and criteria which will be used in assessing their competing tenders. There is no specific evidence as to the manner in which disclosure would compromise the open market or fair and open competition between those who operate in that market.

149. I have already set out the competing public interests I have identified in the administration of programmes generally in the Commonwealth (see paragraph 140 above). In the particular context of the Job Network Programme, I am satisfied that the Australian community has an interest in securing employment for its members. For the past fifty years, the Commonwealth government has used public money in various ways in its attempts to fulfil that interest. At times and particularly during earlier years, it has variously used that public money by providing services through Commonwealth officers and agencies. In more recent years, it has used public money partly to fund Commonwealth officers and agencies to provide services and partly to purchase services from the private sector. The Job Network Programme represents a major shift in emphasis from the provision of services through Commonwealth officers and agencies to the provision of services through the private sector. At all times, the funding for employment services, however provided, remains the public purse. The Australian community's interest in the form and manner of the services provided and in those who will provide it, is not lessened by the shift of the immediate service provider to the individual from the public to the private sector. When regard is had to the whole of the Job Network Programme and to Commonwealth administration generally, the ultimate service provider remains DEWRSB and so the Commonwealth.

150. In the context of this case, the findings I have already made lead to the further finding that access to the folios of the Operations Manual claimed to be exempt would not, or could not reasonably be expected to, prejudice the effectiveness of the Job Network Programme or the attainment of its objectives or diminish the commercial value of any information held by DEWRSB. I am also satisfied that disclosure of the information would not give one tenderer, or potential tender, in the market place an unfair advantage over another. The public interest in achieving efficiency is not under threat. What of the public interest in openness both to the individuals engaged in the process in the sense of tendering to supply employment services and to the Australian public generally as I have described above? That interest outweighs any financial detriment which DEWRSB may suffer should it perceive the need to develop a new Operations Manual. The interest in ensuring that the participants know the criteria and processes by which their tenders will be assessed and the Australian public's interest in being able to know the criteria and processes by which decisions are made to spend public money in achieving a public purpose of providing employment services to the community outweigh any public interest in maintaining confidentiality of those criteria and processes.

151. The balancing of public interests favours disclosure of that part of the Operations Manual claimed to be exempt. In considering whether or not disclosure of the folios of the Operations Manual with which I am now concerned would unreasonably affect DEWRSB in respect of its lawful financial affairs I have taken that into account. I have also taken into account my earlier finding that there is no basis for a conclusion that tenderers for employment services will attempt to manipulate their information if they are made aware of those parts of the Operations Manual claimed to be exempt. There is, therefore, no basis in the evidence for finding that DEWRSB would be reasonable in altering its Operation Manual were that document to be disclosed under the FOI Act. Taking all of these matters into account, I have concluded that disclosure would not unreasonably affect the financial affairs of either the Job Network Programme or of DEWRSB in operating that programme. It is not, therefore, exempt pursuant to paragraph 43(1)(c) in particular or to section 43 in general.

Operations Manual - claim for exemption under section 45

152. At the conclusion of the hearing, Mr Hanks left open in a general way any "copyright issues" that might arise from the software licence agreement between a private licensor and the Commonwealth, represented by DEETYA, as licensee. The terms and conditions of the software licence were exhibited to an affidavit by Ms Lee handed up at the hearing. After the hearing and unaware of the precise issues Mr Hank had in mind, he was invited to address any issues he considered relevant and had left open. He did so in written submissions. In relation to the Operations Manual, he submitted that folio 157 is exempt from disclosure on the basis that information it contains was given to the Commonwealth in circumstances which would found an action for breach of confidence were it to be disclosed under the FOI Act. He relied upon the licence agreement between the Commonwealth and the licensor of a software package used in the assessment of financial viability. In so far as the documents have been produced from a Manual, which is the subject of the licence agreement, Mr Hanks submitted that they have the necessary quality of confidentiality and were received in circumstances importing an obligation of confidence.

153. Pursuant to the contract in question, the Commonwealth agreed that it might not:

"a) use or make copies of the Software contrary to the terms & conditions of this Licence Agreement;

b) disclose the Software to any person;

c) rent, lease, sub-lease, lend, sell, assign or transfer the Software, or any rights granted in this Licence Agreement except as permitted by this Licence Agreement;

d) alter, decompile, disassemble or otherwise dispose of the Software;

e) incorporate the Software in any other Software package or in any product produced for commercial exploitation; or

f) remove the copyright notice on the Software without obtaining prior written permission from ... [the licensor]."

154. The licence gave the Commonwealth:

"... the following rights to the Software:

a) to use the Software on the terms & conditions of this Licence Agreement subject to the restrictions on use specified in Item 3 of the Schedule;

b) to make a back-up copy of the Software to be labelled with the same copyright notice as the Software and to be used by ... [the Commonwealth] only on the terms & conditions of this Licence Agreement;

c) to make such other copies of the Software as are specified in Item 4 of the Schedule; and

d) to produce hard copies and computer files from the Software."

155. The term "Software" was defined in clause 1 to mean:

"... the intellectual property, media, documents and other property described in Item 1 of the Schedule plus any property provided as support during the operation of this Licence Agreement including updates & new releases."

Item 1 of the Schedule specified the name of the computer package or program. It specified the media as floppy disks and a manual as the documents. One network site licence was given to the software (Item 2). Item 3 specified that the software could only be used at a specified address in Canberra and on a specified network.

156. Folio 157 is a folio from DEWRSB's Operations Manual. There is nothing about it to suggest that it has copied verbatim a passage from the Manual of the licensor of privately owned software. No other evidence has been led pointing to the information which is said to be reproduced from the Manual and I have not had access to that Manual to make a comparison. In the absence of any evidence and reading the document in the context of the folios on either side of it, folios 156 and 158, I am satisfied that, on the balance of probabilities, folio 157 contains information other than that contained in the licensor's Manual. Indeed, Mr Hanks did not suggest otherwise. He submitted only that it was one of the documents which "include information from the Manual". The particular passages that include that information were not identified. I have considered whether I should ask him to do so. In deciding not to, I have been persuaded by the fact that, during the hearing, I embarked upon a process of dissecting, as it were, documents and considering whether individual passages on particular folios were or were not exempt. Mr Hanks took issue with this approach but was aware that I might take a contrary view. He was aware of that when I sought any submissions he wished to develop and was also aware that, under sub-section 61(1) of the FOI Act and subject to exceptions which are not relevant in this case:

"... the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant."

157. As I am unable to identify that part of folio 157 which has been reproduced from the licensor's manual, I am unable to identify with specificity the information said to be confidential. It is essential that I be able to do so whether the claim for confidentiality has a contractual or proprietary basis or whether it is based in equity. As Gummow J said in Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 13 ALD 254 at 262-3; 14 FCR 434 at 443:

"It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information; Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; [1963] 3 All ER 413 at 415; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50-51; 32 ALR 485; O'Brien v Komesaroff (1982) 150 CLR 310 at 326-8; 41 ALR 255. It may also be necessary, as Megarry J thought probably was the case (Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff."

158. From an examination of folio 157, I am unable to discern the particular information which is claimed to be information from the licensor's manual. As I cannot identify the information claimed to be exempt, I am unable to find that it is exempt pursuant to section 45.

Assessment of Staff Development's tender - claim for exemption under section 36

159. Mr Hanks submitted that folios 198-231 and 136-137 are exempt because those documents reflect the Operations Manual and would reveal, if disclosed, the processes and criteria used to assess the financial viability of tenderers. DEWRSB, he submitted, relied on the same grounds of exemption as relied upon in relation to the Operations Manual.

160. Folios 223-229, 231, 210-221 and 136-137 appear to be copies of computer screens or information generated from information entered and processed in a computer program. They reflect the implementation of some of the processes set out in the Operations Manual and the application of some of the criteria used in the assessment of the tenders. From those documents, it is possible to ascertain a number of the processes and criteria that are applied in the assessment of tenders in the Job Network Programme. Folios 198-207 record the results of following certain processes in the Operations Manual as do folios 208-209. Folios 222 and 230 are work sheets.

161. Each of these folios has been obtained, prepared or recorded for the purposes of deliberations that have taken place in the course of checking and assessing the tender submitted by Staff Development and in deciding whether or not it is a successful tender. Although the precise information disclosed varies from folio to folio, I am satisfied that their disclosure would disclose either opinions formed on certain aspects of Staff Development's tender or advice about certain aspects of it. The folios also reveal certain aspects of the deliberations which attended DEWRSB's consideration of Staff Development's tender. Those deliberations have taken place in the context of, and for the purposes of, the administration of the Job Network Programme. As I have already found, the administration of that programme is a function of DEWRSB. It follows that I am satisfied that the folios come within paragraph 36(1)(b) of the FOI Act.

162. If they are to be exempt under section 36, they must also come within paragraph 36(1)(b). That is to say, the disclosure of the folios must be contrary to the public interest. I have considered the competing public interests earlier in these reasons. In balancing those public interests, I have concluded that the public interest in disclosure outweighs that favouring non-disclosure. The difference between the Operations Manual and those relating to the assessment of Staff Development's tender lies in the greater disclosure of the criteria by which tenders are assessed should access be given to the latter. Having considered Mr Campbell's evidence and Mr Hanks's submissions, I have concluded that this fact does not lead me to a different conclusion. The public interest is such that disclosure of the documents relating to Staff Development's tender would not be contrary to the public interest.

163. I have reached that conclusion because I am not satisfied that disclosure of the criteria and processes set out in the Operations Manual will have any prejudicial effect on the efficient administration of the Job Network Programme. The documents in the assessment of Staff Development's tender reveal far more of those criteria and processes than does the Operations Manual. That factor does not alter the view I have taken of the balance that exists between the competing public interests to which I have referred earlier in these reasons. For the reasons I have already given, I am not satisfied that the integrity of the tendering process will be compromised should the criteria and processes be disclosed under the FOI Act, that DEWRSB will not be able to obtain value for money, that the market in which the Commonwealth purchases employment services will not be an open market or that there will not be fair and open competition among tenderers. Those findings, together with my conclusion that, for the reasons I have also given earlier in these reasons, there is a public interest in disclosure, lead me to conclude that disclosure of the documents would not be contrary to the public interest. It follows that I am not satisfied that the documents relating to the assessment of Staff Development's tender are exempt pursuant to section 36 of the FOI Act.

Assessment of Staff Development's tender - claim for exemption under section 39

164. Relying on Mr Campbell's evidence, Mr Hanks submitted that folios 198-231 are exempt pursuant to section 39. Mr Campbell relied in turn upon the evidence he had given in relation to the claim for exemption under section 39 in relation to the Operations Manual. In those reasons, he placed particular emphasis upon disclosure of processes and criteria to a particular tenderer. For the reasons I have given in relation to the Operations Manual, disclosure under the FOI Act cannot be considered on the basis of disclosure to an individual. If a document is disclosable under the FOI Act to one tenderer it is, subject to the particular provisions of sections 41 and 43 in relation to the personal affairs or business affairs of an individual tenderer or section 45 in relation to certain information given to DEETYA in confidence, the document is disclosable to any other person who requests it under that legislation.

165. Although folios 198-231 disclose greater detail of the criteria than do the Operations Manual that fact does not persuade me to reach a conclusion different from that I have reached in relation to the Operations Manual. The reasons I have given for my decision that the folios from the Operations Manual are not exempt pursuant to section 39 are equally applicable to my decision that folios 198-231 are not exempt pursuant to that section.

Assessment of Staff Development's tender - claim for exemption under section 40

166. For the reasons he advanced in relation to the Operations Manual, Mr Hanks submitted that folios 198-231 are exempt pursuant to section 40. For the reasons I have given in relation to the Operations Manual, I am not satisfied that the folios are exempt pursuant to that section.

Assessment of Staff Development's tender - claim for exemption under section 43

167. For the reasons advanced in relation to the Operations Manual, Mr Hanks submitted that folios 198-231 are exempt pursuant to section 43. In particular, he referred to Mr Campbell's evidence that the processes and criteria have a significant and concrete value to the Commonwealth and that their disclosure would diminish or destroy its value. There is nothing disclosed in folios 198-231 which leads me to a conclusion different from that I have reached in relation to the folios from the Operations Manual. The reasons I have given in relation to those folios are equally applicable to folios 198-231. For those reasons, I am not satisfied that the folios are exempt pursuant to section 43.

Assessment of Staff Development's tender - claim for exemption under section 45

168. I have identified folios 223-229, 231, 210-221 and 136-137 as appearing to be copies of computer screens or information generated from information entered and processed in a computer program. Mr Hanks has identified folios 208 and 216-221 as being produced from computer programs. In view of the decision I have reached in relation to documents coming within this category, I have not sought further evidence or submissions regarding the further folios I have identified.

169. Mr Hanks submitted that folios 208 and 216-221 are documents which are produced from the computer program, which is subject to the licensing agreement I have set out above, and so subject to the express promise of non-disclosure in that agreement. The licensing agreement limits disclosure of the software. It does not limit disclosure of any other material. As I have set out above, the software is defined by the licensing agreement to mean floppy disks and a manual. No evidence was led as to the precise information that was included on the floppy disks and in the manual. Furthermore, no evidence was given or submissions addressed as to what amounts to software and as to the status of screen dumps or information generated from a computer program.

170. Although I do not have evidence, I think that I am able to take notice of the fact that the floppy disks referred to in the licensing agreement would contain a computer program i.e. the series of coded instructions to control, at least in certain aspects, the operation of DEWRSB's computer network. Without further evidence, however, I am unable to take the matter any further. In particular, I am unable to find that the information contained in folios 208 and 216-221 is the information contained on the floppy disks or that it would reveal information contained on those floppy disks. That is particularly so when an examination of those documents reveals that the information on the floppy disks has been used in some way to process information which has been added to, or entered into, the computer program. In view of these matters, I am not satisfied that the information contained in folios 208 and 216-221 are subject to the express (or implicit) promise of non-disclosure in the licensing agreement.

171. Mr Hanks did not raise the issue whether disclosure of the folios would reveal information given by Mr and Mrs Van Putten in confidence and whether its disclosure would found an action for breach of confidence. The Tender Summary is said to be "Commercial-in-Confidence (when completed)" but there is no further evidence as to the other characteristics which must be met and which were identified by Gummow J in the Corrs Pavey and Whiting case to which I have referred (see paragraphs 157 above). As the Secretary has not raised the matter and as the burden of proof rests with him, I have not considered the matter further.

172. For the reasons I have given, I:

1. set aside the decision of the respondent dated 31 July, 1998; and

2. substitute a decision that folios 55-89, 99-106, 138-141, 156-158 of File No. 98/0680 and folios 198-231 of File No 97/00401 and folios 136-137 of File No. EF97/00401 are not exempt documents within the meaning of the Freedom of Information Act 1982.

I certify that the one hundred and seventy two preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed: ...........................................

M Martinez Associate

Date of Hearing 10 August 1999

Date of Decision 8 February 2000

Representatives for Applicant Mr J Van Putten; Mrs M Van Putten

Counsel for Respondent Mr P Hanks

Solicitor for the Respondent Australian Government Solicitor