- Document 1: Varanus Hub Safety Case, dated 27 September 2000 (171 pages);
- Document 3: Varanus Hub Safety Case, dated 5 July 2007 (1,954 pages);
- Document 4: Sales Gas Pipelines - 5 year Integrity Review, dated 30 May 2007 (19 pages);
- Document 4A: 31/05/06 PL 12 Renewal - Assessment Report, dated 31 May 2006 (214 pages);
- Document 9: Operational Pipeline Management Plan, dated 10 April 2008.
36. And in reading the reasons for decision of the Commissioner, it must be borne in mind that they are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd  FCA 456; (1993) 43 FCR 280, 287. The court should not be 'concerned with looseness in the language ... nor with unhappy phrasing': Collector of Customs v Pozzolanic Enterprises Pty Ltd (287). As the High Court observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang  HCA 6; (1996) 185 CLR 259, 272, the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
66 It must be said, with respect, that the reasoning of the Commissioner on this topic lacks the degree of clarity which would have been desirable. It is evident that the Commissioner was at some pains to attempt to reconcile the decision in Winterton, where the balance of probabilities had been used, with the decisions in Manly and Cockroft where it had been disavowed. His endeavours to do so led him to attempt to break the 'standard of proof' down into two limbs, the first (to which the balance of probabilities applied) to be applied to the argument and reasoning, and the second to the outcome (to which it did not). The passage referred to in IC  occurred in the context of that analysis.
67 It might be thought that in attempting to reconcile the decisions the Commissioner was attempting the impossible. Be that as it may, what I think is apparent is that while the Commissioner sought to reconcile the authorities and engaged in some (it must respectfully be said, rather obscure) consideration of how that might be done, in the end he did not 'consider it desirable to attempt to quantify the standard of proof' (IC ). The approach he ultimately took appears from IC  of his reasons, where the Commissioner adopted the statement of Owen J in Manly as the applicable test.
68 Having regard to the context as a whole, I am satisfied that the primary judge correctly found that the Commissioner did not apply the balance of probabilities. I did not understand Apache to take issue with the approach in Manly and nor in my opinion could it. I do not consider that any error has been made out.
- a briefing, dated 9 September 2009, from the Chief Executive Officer of NOPSEMA to the Minister for Resources and Energy, about an investigation by the Western Australian Department of Industry and Resources into a fire that occurred on Varanus Island on 3 June 2008 as a result of a ruptured gas pipeline, and
- an extract from a letter (four appendices), dated 26 September 2009, to the Minister concerning NOPSEMA's involvement in that investigation.
25. The documents concerned are now over two years old. The incident to which they relate occurred over three years ago. The incident raised questions of public safety and has been the subject of public debate. I agree with NOPSEMA's assessment that the documents contain only a limited level of detail relating to the IC review applicant, which is expressed in neutral terms.
26. For all of these reasons, the threshold is high for deciding that the effect of disclosure upon the IC review applicant's business would be unreasonable. An affected third party seeking IC review of an access grant decision bears the onus of establishing that access should be refused (s 55D(2)). The IC review applicant in this case has not provided any reasons why the adverse effect that it says will result from disclosure would be unreasonable.
27. Section 47G(1)(b) will apply if disclosure of the information in the documents ‘could reasonably be expected to prejudice the future supply of information to ... an agency for the purpose of the administration of a law of the Commonwealth ... or the administration of matters administered by an agency'.Presumably this is now somewhere in the AAT.
28. The IC review applicant submitted that the second document (appendices to a letter) includes information provided to NOPSEMA by the IC review applicant ‘beyond what is strictly required by law':
[The IC review applicant] provides more fulsome information to the government on the understanding that such information will remain confidential. If such information were released pursuant to an FOI request, it is likely that only the information specifically required to be produced would be provided rather than the fulsome information presently provided.29. NOPSEMA argues, in response, that the information contained in that document was ‘information usually collected by [NOPSEMA] in the application of its legislated powers to inspect and to require improvements to health and safety', and that the IC review applicant had been legally required to provide that information to NOPSEMA.
30. It is not apparent to me that there is any material in that document that the IC review applicant would not be required to provide to NOPSEMA. Three of the four appendices relate to the IC review applicant's operations. They set out NOPSEMA's past regulatory activities at a broad and factual level. The fourth appendix is a summary of the legislative framework relevant to NOPSEMA's operations. The IC review applicant has not identified what material in these appendices derives from information that it provided to NOPSEMA, much less what material it provided even though it was not legally required to do so.
31. The IC review applicant has not discharged the onus on it to establish that access should be refused.