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Section 34 - Documents relating to trade secrets etc.

Guidelines

Overview

1.1

Section 34 contains several exemptions, which protect:

  • trade secrets of a business, commercial or financial undertaking;11
  • other business, commercial or financial information of an undertaking, where disclosure would likely expose the undertaking to an unreasonable disadvantage;12
  • trade secrets of an agency;13
  • other business, commercial or financial information of agencies engaged in trade or commerce;14
  • the results of scientific or technical research undertaken by an agency;15 and
  • examination papers, examiner’s reports and similar documents, where the document’s use is not yet completed.16
1.2

If an agency or Minister is considering whether section 34(1)(b) applies, they must consult with the relevant third party when making a decision.17 There is no requirement to consult with third parties when considering the other exemptions in section 34.

1.3

There are certain considerations that an agency or Minister may consider when deciding if section 34(1)(b) applies.18

1.4

Section 34 must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information. This right is only limited by exemptions necessary for the protection of essential public interests and private and business affairs.19 If it is unclear whether section 34 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.20

Discretion to disclose exempt documents

1.5

The decision to exempt a document under section 34 is discretionary.22 This means an agency or Minister can choose to provide access to information that would otherwise be exempt under section 34, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

For more information on providing access to information outside of the Act, see section 16 – Access to documents apart from Act.

Meaning of common terms and phrases in section 34(1)

1.6

To be exempt under section 34(1)(a) or section 34(1)(b), the information must have been acquired by the agency or Minister from a business, commercial or financial undertaking.

Information acquired

1.7

The phrase ‘information acquired’ involves some positive handing over of information to an agency in a precise form.34

1.8

The actual document itself does not itself need to be acquired from an undertaking.35 It may also disclose relevant information acquired from the undertaking.36 For example, a document may contain information extracted or paraphrased from information acquired from an undertaking.

1.9

The information can be acquired from an undertaking through a third party.37 For example, the undertaking’s agent or accountant, or a barrister submitting an invoice to a law firm, who then submits the invoice to the agency for payment.38

1.10

However, information generated by an agency about the undertaking, or mutual information arising out of negotiations or collaboration between an agency and an undertaking, is generally not ‘acquired’ by the agency from the undertaking.39

1.11

The terms of a concluded contractual agreement may or may not contain information acquired from the undertaking.40 Each case needs to be examined on its own merits to determine whether in fact:

  • an agency acquired information from the undertaking; and
  • whether disclosure of the terms of the concluded contract would disclose the acquired information.41
1.12

Records of transactions entered into by an agency with an undertaking may or may not reveal information acquired by the agency from the undertaking. Each case needs to be determined on its own facts.42

1.13

Where an agreement records the price payable between an agency and a business undertaking for a good, service, concession or other right, disclosing that information may reveal the price at which the business undertaking is prepared to do business. This is information acquired from the undertaking.43 Whereas, an amount representing a retrospective compromise, revealing information mutual to the agency and the undertaking may not meet the requirement.44

Business, commercial, or financial undertaking

1.14

The phrase ‘business, commercial or financial undertaking’ generally refers to an entity, such as a company or organisation, that is engaged in business, trade, or commerce for a financial profit or gain.47

1.15

An undertaking that is partly government funded or partly controlled by government officers can still be a ‘business, commercial or financial undertaking’ for the purposes of section 34(1).48

Section 34(1)(a) – trade secrets of a business, commercial or financial undertaking

1.16

A document or information is exempt under section 34(1)(a) if two conditions are satisfied:

  • the document or information was acquired from a business, commercial, or financial undertaking; and
  • the document or information contains trade secrets of the undertaking.
1.17

See above for guidance about the first condition. See below for guidance about the second condition.

Steps to applying the exemption

1.18

An agency or Minister seeking to apply section 34(1)(a) should:

  1. Specifically identify the information considered to be a trade secret.
  2. Determine whether the information was acquired from a business, commercial or financial undertaking, identifying when it was received and from what undertaking;
  3. Consult with the undertaking to seek its views on whether the information constitutes a trade secret, and whether it consents to disclosure.50 If not, obtain reasons and supporting documentation about why the information constitutes a trade secret.
    1. Consider seeking an extension of time under section 21(2)(b) if additional time is required to conduct consultation.
  4. Determine if the information constitutes a trade secret of the undertaking, and should be exempt.
  5. If a decision is made to release the information, and the undertaking did not consent to the disclosure, or did not reply, notify the affected undertaking of the decision and their right to appeal to the Victorian Civil and Administrative Tribunal (VCAT), including the 60-day appeal period.
  6. Wait until the review period has ended, and where applicable, the conclusion of any appeal or VCAT proceedings before providing the documents to the applicant.
    1. If there are other documents falling within the request that do not contain the affected undertaking’s information, these can be released to the applicant at the same time as the decision notice, without needing to wait for the appeal period to end.

Trade secrets

1.19

To be exempt under section 34(1)(a), the information acquired from the business, commercial or financial undertaking must constitute a trade secret of the undertaking.

1.20

The phrase ‘trade secret’ is not defined in the Act. Determining what is a ‘trade secret’ is primarily a question of fact for the decision maker.55

1.21

A trade secret is generally proprietary knowledge of the undertaking but does not include every piece of commercially sensitive information.56

1.22

There are several factors indicating that information may constitute a trade secret.57

1.23

These include:

  • the extent to which the information is known outside of the undertaking’s business;
  • measures taken by the undertaking to guard the secrecy of the information;
  • the value of the information to the undertaking and competitors;
  • the effort and money spent by the undertaking in developing the information; and
  • the ease or difficulty with which others might acquire or duplicate the secret.
1.24

Information may be a trade secret even if it is not of a technical character.58

1.25

Information is generally not considered to be a trade secret where the processes, procedures, or methods are well known or widespread (including in that industry), could be assumed, or are publicly available.

Consultation with the undertaking

1.26

An agency or Minister is not required to consult with an undertaking under section 34(1)(a).

1.27

However, it is the undertaking, not the agency or Minister, that is likely to possess the required knowledge to determine whether the information constitutes a trade secret. Therefore, where it is not clear that information is a trade secret, an agency or Minister should consult with the undertaking, if reasonably practicable, to properly understand the nature of the information.

1.28

When consulting, an agency or Minister should:

  • notify the undertaking of the request;
  • ask the undertaking whether the information is a trade secret and if so, why; and
  • maintain records of the consultation.60

Section 34(1)(b) – business, commercial or financial information of a third party undertaking

1.29

A document or information is exempt under section 34(1)(b) if three conditions are satisfied:

  • the document or information was acquired from a business, commercial, or financial undertaking; and
  • the information relates to matters of a business, commercial or financial nature; and
  • disclosure of the information is likely to expose the undertaking unreasonably to disadvantage (based on matters listed in section 34(2) and any other relevant considerations).

Steps to applying the exemption

1.30

An agency or Minister seeking to apply section 34(1)(b) should:

  1. Specifically identify the information considered to be business, commercial or financial information.
  2. Determine whether the information was acquired from a business, commercial or financial undertaking, identifying when it was received and from what undertaking.
  3. Determine whether the information relates to matters of a business, commercial or financial nature.
  4. Consult with the undertaking to seek its views on disclosure of the information and how disclosure would expose it unreasonably to disadvantage.
    1. Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 34.
  5. Critically and objectively consider whether disclosure would be likely to expose the undertaking unreasonably to disadvantage by identifying and establishing three elements:
    1. what the disadvantage is;
    2. whether the disadvantage is likely to occur; and
    3. whether the disadvantage is unreasonable.

If the undertaking consents to disclosure or fails to object to disclosure without explanation, this is a strong indication that the document is not exempt.

  1. If a decision is made to release the information, notify any affected undertakings that did not consent to the disclosure, of the decision and their right to appeal to the Victorian Civil and Administrative Tribunal (VCAT), including the 60-day appeal period.
  2. Wait until the conclusion of the review period, and if applicable any appeal or VCAT proceedings before providing the documents to the applicant.

a. If there are other documents falling within the request that do not contain the affected undertaking’s information, these can be released to the applicant at the same time as the decision notice, without needing to wait for the appeal period to end.

Information that relates to matters of a business, commercial or financial nature

1.31

See the heading ‘meaning of common terms and phrases’ above, for guidance about the first condition of the exemption – which is that the information must have been acquired from a business commercial or financial undertaking.

1.32

The second condition requires the acquired information to have a business, commercial, or financial nature. ‘Business’, ‘commercial’ and ‘financial’ should each be given their ordinary meaning.64

1.33

Information will ‘relate to’ matters of a business, financial or commercial nature if there is a sufficient or material connection or relationship between the information that would be disclosed by the disclosure of the documents and matters of a business, financial or commercial nature.66

Likely to expose the undertaking unreasonably to disadvantage

1.34

When determining if disclosure is likely to expose the undertaking unreasonably to disadvantage, three distinct elements must be identified and considered:

  • what the disadvantage is;
  • why and when disadvantage is likely to occur; and
  • the disadvantage is unreasonable.

Identifying the disadvantage

1.35

In considering whether disclosure will expose an undertaking to unreasonable disadvantage, an agency or Minister should, along with any other relevant consideration, have regard to the factors set out in section 34(2).

1.36

These are:

  • whether the information is generally available to competitors of the undertaking;
  • whether the information would be exempt if it were generated by an agency or a Minister;
  • whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
  • whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls.
1.37

Other relevant considerations include whether disclosure would:

  • give a competitor of the undertaking a competitive financial advantage;
  • enable that competitor to engage in destructive competition with the undertaking; or
  • lead to unwarranted conclusions about the undertaking’s financial affairs and position that result in commercial and market consequences.69
1.38

Under section 34(2)(d), examples of public interest factors in favour of disclosure include:

  • transparency and accountability, particularly in the expenditure of public money;
  • scrutiny of government decisions, especially involving allegations of wrong-doing;
  • allowing the public to be better informed about decisions like the privatisation of government services; and
  • contributing to informed public
1.39

Government transparency and accountability requires private organisations contracting with government to expect more public scrutiny over their dealings. This includes the possibility that their business, financial or commercial information may be disclosed to the public under the Act.70 The exemption in section 34(1)(b) balances government transparency and public accountability against protecting legitimate commercial interests.

The meaning of ‘likely’

1.40

Disclosure of the information must be likely to cause unreasonable disadvantage. ‘Likely’ is given its plain English meaning – seeming like truth, fact, or certainty, or reasonably to be believed or expected.73 The test is one of likelihood rather than certainty. It means ‘probable, such as well might happen or be true’.74

1.41

An agency or Minister should carefully consider if disclosure is ‘likely’ to cause unreasonable disadvantage, as opposed to it being a mere possibility. This should be outlined in the agency or Minister’s reasons for its decision.

Unreasonable

1.42

An agency or Minister must establish that disclosure would likely cause ‘unreasonable’ disadvantage – not just any level of disadvantage.

1.43

Whether disclosure is likely to expose an undertaking unreasonably to disadvantage depends on the particular facts and circumstances of the matter, considering the consequences that are likely to follow from disclosure of the information. An agency or Minister must be able to articulate in their reasons why the disadvantage is unreasonable, as opposed to mere disadvantage.

1.44

Where the business, commercial or financial information is so small and inconsiderable or so incidental to an undertaking’s central operations, its disclosure is unlikely to meet the threshold of unreasonable disadvantage.77

1.45

The timing of the access decision is a relevant factor that may affect the level of disadvantage likely to be suffered by an undertaking.78

Requirement to consult with an undertaking – section 34(3)

1.46

In deciding whether disclosure would expose an undertaking unreasonably to disadvantage, an agency or Minister must, if reasonably practicable:

  • notify the undertaking of the request;
  • ask the undertaking how and why disclosure would expose it unreasonably to disadvantage, if at all;
  • ask whether the undertaking consents to the disclosure of the information, or disclosure subject to deletion; and
  • advise that if the undertaking consents to disclosure, or disclosure subject to deletions, it cannot apply to VCAT for review of the decision.99
1.47

When seeking the views of the undertaking, an agency or Minister should tell the undertaking that all elements of section 34(1)(b) must be made out before the exemption may apply. Informing the undertaking of the elements of the exemption will help to enable the undertaking to provide an informed response and ensure their reasons are relevant, if they object to the document being released.

1.48

An agency or Minister should request and obtain detailed information from an undertaking about:

  • what the disadvantage is;
  • whether the disadvantage is likely to occur; and
  • why the disadvantage is unreasonable.
1.49

The undertaking’s view is not determinative. It is only one factor to be considered. An undertaking may strongly object to release, but that is not enough to satisfy the exemption. If an agency or Minister is not satisfied that all elements of the exemption are made out, an agency or Minister must release the document.

1.50

Conversely, if the undertaking consents to disclosure or fails to object to disclosure without explanation, this is a powerful reason in favour of finding that the document is not exempt.100 The object of section 34(1) is to protect the undertaking’s information. An agency or Minister will have difficulty establishing that release of a document would disadvantage the undertaking if the undertaking is asked to provide their views, and does not express concerns about release.

1.51

When consulting, the 30-day timeframe to decide a request may be extended by up to 15 days under section 21(2)(a).

1.52

An agency or Minister is only required to consult with an undertaking where it is reasonably practicable.

1.53

Consultation may occur in any manner or form. For example, by telephone, email, post, or a meeting.

1.54

Professional Standard 7.3 requires a record of the consultation to be kept. This includes who was consulted, whether they consented or objected, and any reasons provided.

More information

See section 33 of the FOI Guidelines for more information about:

  • determining whether consultation is not reasonably practicable;
  • how to conduct consultation;
  • privacy considerations; and
  • keeping records of consultation under the Professional Standards.

Notifying an undertaking of a decision to disclose information – section 34(3A) and (3B)

1.55

If an undertaking objects to releasing the information or document, or did not respond to the consultation, and a decision is made to release the document or information, the agency or Minister must notify the undertaking of the:

  • decision to grant access to the document; and
  • undertaking’s right to apply to VCAT for a review of the decision.103
1.56

There is no requirement to notify an undertaking that consented to the release of the information or document, provided the decision reflects release of the information or document, as agreed by the undertaking.104

1.57

The applicant should be advised the document will only be released at the end of the 60-day review period, which begins on the day the undertaking is notified of the decision.

Learn more about notifying applicants of third party review rights in section 27.

1.58

If an undertaking who objected to disclosure applies to VCAT for review, an agency or Minister must not disclose the documents until the VCAT proceedings are finalised and directions made.

For more information, see section 50 – Applications for review by the Tribunal.

Practicability of notifying an undertaking of the decision

1.59

If the undertaking was not consulted because it was not reasonably practicable, the agency or Minister does not have to notify the undertaking of a decision to grant access to the document.108 If the undertaking is not notified of the decision, the agency or Minister will still need to wait 60 days before releasing the document to the applicant.109

1.60

If the undertaking was consulted but cannot be located at the time of the decision, the agency or Minister should send the notice to the last known address of the undertaking and wait 60 days before releasing the information to the applicant.110

1.61

If the agency or Minister is reasonably satisfied that the undertaking no longer exists at the time of the decision, the agency or Minister does not have to notify the undertaking of the decision. The agency or Minister should search the company database on the Australian Securities and Investment Commission website or the business name register on the Consumer Affairs Victoria website to confirm the status of the business. An Internet search is not sufficient.

Section 34(4)(a)(i) – trade secret of an agency

1.62

A document or information is exempt under section 34(4)(a)(i) if two conditions are satisfied:

  • the document or information contains a trade secret of an agency; and
  • disclosure would be likely to expose the agency unreasonably to disadvantage.
1.63

For guidance about the second condition, see the heading below ‘Likely to expose the agency unreasonably to disadvantage’.

Steps to applying the exemption

1.64

An agency or Minister seeking to apply the section 34(4)(a)(i) exemption should:

  1. Specifically identify the information considered to be a trade secret.
  2. Determine if the information is in fact a trade secret of the agency.
  3. Critically and objectively consider whether disclosure would be likely to expose the agency unreasonably to disadvantage by identifying and establishing three elements:
    1. what the disadvantage is;
    2. whether the disadvantage is likely to occur; and
    3. the disadvantage is unreasonable.
  4. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

What is a trade secret?

1.65

A ‘trade secret’ is not defined in the Act, however it is generally considered to be proprietary knowledge of the agency.

1.66

There are a number of indicators that may show whether information constitutes a trade secret.112

1.67

These include:

  • whether the information is of a technical character;
  • the extent to which the information is known outside of the agency;
  • measures taken by the agency to guard the secrecy of the information;
  • the value of the information to the agency and any competitors;
  • the effort and money spent by the agency in developing the information; and
  • the ease or difficulty with which others might acquire or duplicate the secret.
1.68

Information is generally not considered to be a trade secret where the processes, procedures, or methods are well known or widespread (including in that industry), could be assumed, or are publicly available.

1.69

Timing is also a relevant consideration, as something which was originally secret may lose its secret character over time.

Section 34(4)(a)(ii) – business, commercial or financial information of an agency engaged in trade or commerce

1.70

A document or information is exempt under section 34(4)(a)(ii) if three conditions are satisfied:

  • the agency is engaged in trade or commerce; and
  • the document contains information of a business, commercial or financial nature; and
  • disclosure of the information would be likely to expose the agency unreasonably to disadvantage.
1.71

The exemption in section 34(4)(a)(ii) is intended to apply where a public sector body conducts itself or part of its operations, in a manner similar to a commercial entity.

1.72

For guidance about the third condition, see the heading below ‘Likely to expose the agency unreasonably to disadvantage’.

Steps to applying the exemption

1.73

It is best practice for an agency or Minister seeking to apply the section 34(4)(a)(ii) exemption to:

  1. Specifically identify the information considered to be business, commercial or financial information.
  2. Establish that the agency is engaged in trade or commerce in relation to the information. Note that ‘governmental’ activities (delivering statutory services or functions) are often not trade or commerce.
  3. Determine whether the information relates to matters of a business, commercial, or financial nature.
  4. Critically and objectively consider whether disclosure would be likely to expose the agency unreasonably to disadvantage by identifying and establishing three elements:
    1. what the disadvantage is;
    2. that the disadvantage is likely to occur; and
    3. that the disadvantage is unreasonable.
  5. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

An agency engaged in ‘trade or commerce’

1.74

The words trade or commerce are expressions of fact and terms of common knowledge.119

1.75

Whether an agency is engaged in trade or commerce depends on the specific facts and circumstances. It requires clear evidence that the agency is doing more than delivering government services or functions.

1.76

Trade or commerce activities must ‘of their nature, bear a trading or commercial character’.120

1.77

Whether an agency is engaged in trade or commerce is decided at the date of the request.121

1.78

An agency can be engaged in trade or commerce even if its activities are mainly governmental.122

1.79

The business, commercial or financial information must be connected to the trade or commerce activity that the agency is engaged in (not government services or functions).

1.80

Just because an agency is engaging in commercial or financial transactions, does not necessarily mean it is engaging in trade or commerce. Tendering out projects, entering commercial contracts, managing budgets, or buying goods and services does not necessarily constitute engaging in trade or commerce for the purpose of this exemption.123

1.81

The approach in Pallas has not been universally adopted by VCAT. Other decisions consider that when carrying out governmental functions for which the agency in question was created for, the agency can still be engaging in trade or commerce when engaging contracted service providers.124

Information of a business, commercial or financial nature

1.82

The information must have a business, commercial, or financial nature. ‘Business’, ‘commercial’ and ‘financial’ should each be given their ordinary meaning.132

‘Likely to expose the agency unreasonably to disadvantage’

1.83

To be an exempt document under section 34(4)(a)(i) or section 34(4)(a)(ii), the disclosure of the document must be likely to expose the agency unreasonably to disadvantage.

1.84

When determining if disclosure is likely to expose the agency unreasonably to disadvantage, three distinct elements must be identified and considered:

  • what the disadvantage is;
  • why and when disadvantage is likely to occur; and
  • the disadvantage is unreasonable.

Unreasonable disadvantage

1.85

An agency must be able to explain how disclosing the information would unreasonably expose the agency to disadvantage. Tribunals and courts describe ‘disadvantage’ in terms of the business, commercial or financial implications of disclosure. In particular, whether disclosure is likely to:

  • reduce an agency’s capacity to compete in a competitive market for buying and selling goods or services;138
  • reduce an agency’s capacity to negotiate future commercial contracts;139
  • strengthen the bargaining position of entities the agency negotiates with, at the expense of the agency competing for marketplace share;140 or
  • expose the rates that an agency is prepared to accept for various services – and if so, the likely impact on the agency’s operations.

The meaning of ‘likely’

1.86

Disclosure of the information must be likely to cause unreasonable disadvantage. ‘Likely’ should be given its plain English meaning – seeming like truth, fact, or certainty, or reasonably to be believed or expected. The test is one of likelihood rather than certainty. It means ‘probable, such as well might happen or be true’.142

1.87

An agency should carefully consider if disclosure is ‘likely’ to cause unreasonable disadvantage, as opposed to it being a mere possibility. The agency should then articulate that consideration in the written decision.

Unreasonable

1.88

An agency must establish that disclosure would likely cause ‘unreasonable’ disadvantage – not just any level of disadvantage. Whether disclosure is likely to expose the agency unreasonably to disadvantage depends on the particular facts and circumstances of the matter, considering the consequences that are likely to follow from disclosure of the information.

1.89

An agency must be able to articulate in their reasons why the disadvantage is unreasonable, as opposed to mere disadvantage.

1.90

Whether disadvantage would be unreasonable involves the consideration of all circumstances, including factors both in favour of, and against disclosure, such as:145

  • the nature of the information;
  • whether there is any public interest in disclosure or nondisclosure;
  • the circumstances in which the information was obtained or created;
  • whether the information has any current relevance; and
  • the identity of the applicant and the likely motives of the applicant.
1.91

The word ‘unreasonably’ should be seen in the context of the balancing process between competing factors of the perceived need for confidentiality and the need for public accountability and transparency on the part of the government, its departments and agencies.146

Consultation with another agency – section 34(4)(a)(i) and (ii)

1.92

The Act does not require an agency to consult with any other agency to which the information relates before making a decision under section 34(4)(a)(i) or (ii). There is also no right to seek review by the other agency. However, the other agency may have a right to apply to be joined as a party under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 34(4)(b) – results of scientific or technical research

1.93

A document or information is exempt under section 34(4)(b)) if:

  1. it contains the results of scientific or technical research (research); and
  2. the research is undertaken by an officer of an agency; and
    1. the research could lead to a patentable invention (section 34(4)(b)(i)); or
    2. the research is not yet completed, and disclosure of the incomplete results would be reasonably likely to:
      1. expose a business, commercial or financial undertaking unreasonably to disadvantage (section 34(4)(b)(ii)); or
      2. expose the agency or the officer of the agency unreasonably to disadvantage (section 34(4)(b)(iii)).

Scientific or technical research

1.94

The words ‘scientific’ and ‘technical’ should be given their ordinary meaning.162

1.95

The word scientific includes physics, chemistry and the social sciences.163

1.96

The word technical includes things which belong to, relate to, are appropriate to, peculiar to or characteristic of a particular art, science, profession or occupation including the technical arts and applied sciences.164

Officer of an agency

1.97

The term ‘officer’ is defined in section 5(1). It includes independent contractors and consultants engaged by an agency to carry out work or provide services.166

Patentable invention

1.98

A patent protects any device, substance, method or process that is new, inventive or useful.

For more information visit IP Australia.

Disclosure of incomplete results would be reasonably likely to expose undertaking or agency to disadvantage

1.99

The exemption will not apply to the results of research if the research has been finalised.170

1.100

A research project may extend over months or years, with many stages, and with interim or preliminary results being achieved at those various stages. The exemption is intended to apply to results achieved at these earlier stages of a research project.171

1.101

Examples of where there may be an unreasonable disadvantage include where premature disclosure would be reasonably likely to:

  • lead to a misleading conclusion as to the likely results and outcome of the research project; or
  • affect the undertaking’s competitiveness in overseas markets.172

For more information, see the sections above:

  • Section 34(1)(b) – likely to expose the undertaking unreasonably to disadvantage; and
  • Likely to expose the agency unreasonably to disadvantage.
  • See also section 35(1)(b) – the meaning of ‘reasonably likely’.

Section 34(4)(c) – examination papers and examiner reports

1.102

A document or information is exempt under section 34(4)(c)) if:

  • it is:
    • an examination paper; or
    • a paper submitted by a student during an examination; or
    • an examiner’s report; or
    • similar document; and
  • the use or uses for which the document was prepared have not been completed.
1.103

The purpose of the exemption is to protect the efficacy of the testing and the integrity of the examination process.183

1.104

The term ‘examination’ has a broad definition and can include non-academic related examinations.184 For example, selection reports containing questions prepared for recruitment processes.

1.105

A ‘marking guide’ has been found to be a ‘similar document’ for the purposes of this exemption.185

1.106

If the use or uses of a document have been completed, the exemption cannot apply.186

1.107

The exemption does not involve any public interest considerations. Any potential prejudice or disadvantage to the agency in a document’s disclosure, or public interest in a document not being disclosed, is irrelevant.187

1.108

The words ‘prepared’ and ‘completed’ should be given their ordinary meaning.188

1.109

The ‘use’ or ‘uses’ of a document, must be a use ‘for which the document was prepared’, not a use of the information contained in the document or secondary use, created or realised after the document’s preparation.189

1.110

The issue is whether the use or uses for which a document has been prepared have been completed, not whether the uses for which the information in a document, as it appears in other documents held by the agency, has been completed.191

  1. Freedom of Information Act 1982 (Vic), section 34(1)(a).
  2. Freedom of Information Act 1982 (Vic), section 34(1)(b).
  3. Freedom of Information Act 1982 (Vic), section 34(4)(a)(i).
  4. Freedom of Information Act 1982 (Vic), section 34(4)(a)(ii).
  5. Freedom of Information Act 1982 (Vic), section 34(4)(b).
  6. Freedom of Information Act 1982 (Vic), section 34(4)(c).
  7. Freedom of Information Act 1982 (Vic), section 34(3).
  8. Freedom of Information Act 1982 (Vic), section 34(2).
  9. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  10. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 34, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and exceptions narrowly. 
  11. Freedom of Information Act 1982 (Vic), section 34(1)(a).
  12. Freedom of Information Act 1982 (Vic), section 34(1)(b).
  13. Freedom of Information Act 1982 (Vic), section 34(4)(a)(i).
  14. Freedom of Information Act 1982 (Vic), section 34(4)(a)(ii).
  15. Freedom of Information Act 1982 (Vic), section 34(4)(b).
  16. Freedom of Information Act 1982 (Vic), section 34(4)(c).
  17. Freedom of Information Act 1982 (Vic), section 34(3).
  18. Freedom of Information Act 1982 (Vic), section 34(2).
  19. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  20. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 34, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and exceptions narrowly. 
  21. Victorian Public Service Board v Wright [1986] HCA 16, [3].
  22. Victorian Public Service Board v Wright [1986] HCA 16, [3].
  23. Thwaites v Department of Human Services (1999) 15 VAR 1, 14.
  24. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106.
  25. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106; Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  26. Re City Parking Pty Ltd (1996) 10 VAR 170, [198].
  27. See example, Commissioner of State Revenue v Tucker [2021] VCAT 238, [157].
  28. Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  29. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [19]-[20].
  30. Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [50]-[51].
  31. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  32. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  33. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  34. Thwaites v Department of Human Services (1999) 15 VAR 1, 14.
  35. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106.
  36. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97, 106; Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  37. Re City Parking Pty Ltd (1996) 10 VAR 170, [198].
  38. See example, Commissioner of State Revenue v Tucker [2021] VCAT 238, [157].
  39. Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  40. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [19]-[20].
  41. Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [50]-[51].
  42. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  43. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  44. Holbrook v Department of Natural Resources & Environment (1997) 13 VAR 1, 8.
  45. See Commissioner of State Revenue v Tucker [2021] VCAT 238, [156], citing Marple v Department of Agriculture (1995) 9 VAR 29.
  46. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [21].
  47. See Commissioner of State Revenue v Tucker [2021] VCAT 238, [156], citing Marple v Department of Agriculture (1995) 9 VAR 29.
  48. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [21].
  49. The Act does not require an agency or Minister to consult under section 34(1)(a). However, consultation is strongly encouraged.
  50. The Act does not require an agency or Minister to consult under section 34(1)(a). However, consultation is strongly encouraged.
  51. Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, [30]-[32] in relation to the equivalent provision in the Commonwealth FOI Act, followed in Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [27].
  52. Byrne v Swan Hill Rural City Council (2000) 16 VAR 366, [27]; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [26].
  53. Re Bankers Trust Australia Ltd v Ministry of Transport (1989) 2 VAR 33, 38-9 in relation to the equivalent provision in the Commonwealth FOI Act; Re Organon (Aust) Pty Ltd v Department of Community Services and Health (1987) 13 ALD 588, [24] in relation to the equivalent provision in the Commonwealth FOI Act . These factors are “merely guides”: Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, [37].
  54. Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, 33; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [26].
  55. Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, [30]-[32] in relation to the equivalent provision in the Commonwealth FOI Act, followed in Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [27].
  56. Byrne v Swan Hill Rural City Council (2000) 16 VAR 366, [27]; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [26].
  57. Re Bankers Trust Australia Ltd v Ministry of Transport (1989) 2 VAR 33, 38-9 in relation to the equivalent provision in the Commonwealth FOI Act; Re Organon (Aust) Pty Ltd v Department of Community Services and Health (1987) 13 ALD 588, [24] in relation to the equivalent provision in the Commonwealth FOI Act . These factors are “merely guides”: Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, [37].
  58. Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, 33; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [26].
  59. As required by Professional Standard 7.3, for agencies.
  60. As required by Professional Standard 7.3, for agencies.
  61. Gibson v Latrobe CC [2008] VCAT 1340, [25].
  62. Commissioner of State Revenue v Tucker [2021] VCAT 238, [158].
  63. Commissioner of State Revenue v Tucker [2021] VCAT 238, [158], citing J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196.
  64. Gibson v Latrobe CC [2008] VCAT 1340, [25].
  65. Commissioner of State Revenue v Tucker [2021] VCAT 238, [158].
  66. Commissioner of State Revenue v Tucker [2021] VCAT 238, [158], citing J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196.
  67. Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301, [33].
  68. Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427, [477].
  69. Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1301, [33].
  70. Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427, [477].
  71. See Macquarie Dictionary.
  72. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  73. See Macquarie Dictionary.
  74. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  75. Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  76. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [32]-[38], [48].
  77. Holbrook v Department of Natural Resources (1997) 13 VAR 1, 8.
  78. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [32]-[38], [48].
  79. AOZ v JLV [2019] VCAT 31, [182].
  80. Faine v Victorian Building Authority [2019] VCAT 111, [31].
  81. Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [56]-[57]; see also Department of Education and Training v Australian Education Union [2019] VCAT 1667, [68]-[73] and ‘FD1’ and Department of Health [2023] VICmr 36, [22]; ‘FD2’ and Department of Justice and Community Safety [2023] VICmr 37, [69]-[70], where the agencies’ exemption claims failed due to lack of direct evidence from the undertaking.
  82. Kotsiras v Department of Premier & Cabinet [2003] VCAT 472, [37].
  83. AOZ v JLV [2019] VCAT 31, [182].
  84. Faine v Victorian Building Authority [2019] VCAT 111, [31].
  85. Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [56]-[57]; see also Department of Education and Training v Australian Education Union [2019] VCAT 1667, [68]-[73] and ‘FD1’ and Department of Health [2023] VICmr 36, [22]; ‘FD2’ and Department of Justice and Community Safety [2023] VICmr 37, [69]-[70], where the agencies’ exemption claims failed due to lack of direct evidence from the undertaking.
  86. Kotsiras v Department of Premier & Cabinet [2003] VCAT 472, [37].
  87. Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [82]-[84].
  88. Chopra v Department of Education and Training [2019] VCAT 1860, [59]-[66]; Commissioner of State Revenue v Tucker [2021] VCAT 238, [166]-[167], [170].
  89. CityLink Melbourne Limited v Department of Transport [2020] VCAT 1078.
  90. Tucker v Commissioner of State Revenue [2019] VCAT 2018.
  91. Green v Department of Human Services [2014] VCAT 1233.
  92. Specialist Diagnostic Services Pty Ltd v Western Health [2016] VCAT 17, [82]-[84].
  93. Chopra v Department of Education and Training [2019] VCAT 1860, [59]-[66]; Commissioner of State Revenue v Tucker [2021] VCAT 238, [166]-[167], [170].
  94. CityLink Melbourne Limited v Department of Transport [2020] VCAT 1078.
  95. Tucker v Commissioner of State Revenue [2019] VCAT 2018.
  96. Green v Department of Human Services [2014] VCAT 1233.
  97. Freedom of Information Act 1982 (Vic), section 34(3).
  98. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 495.
  99. Freedom of Information Act 1982 (Vic), section 34(3).
  100. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 495.
  101. Freedom of Information Act 1982 (Vic), section 34(3A).
  102. Freedom of Information Act 1982 (Vic), section 34(3B).
  103. Freedom of Information Act 1982 (Vic), section 34(3A).
  104. Freedom of Information Act 1982 (Vic), section 34(3B).
  105. Freedom of Information Act 1982 (Vic), section 34(3A).
  106. A third party has review rights, irrespective of whether they are notified of the decision. See Freedom of Information Act 1982 (Vic), section 50(3A).
  107. Freedom of Information Act 1982 (Vic), sections 34(3) and 34(3A).
  108. Freedom of Information Act 1982 (Vic), section 34(3A).
  109. A third party has review rights, irrespective of whether they are notified of the decision. See Freedom of Information Act 1982 (Vic), section 50(3A).
  110. Freedom of Information Act 1982 (Vic), sections 34(3) and 34(3A).
  111. Re Bankers Trust Australia Ltd v Ministry of Transport (1989) 2 VAR 33, 38-9; Re Organon (Aust) Pty Ltd v Department of Community Services and Health (1987) 13 ALD 588, [24].
  112. Re Bankers Trust Australia Ltd v Ministry of Transport (1989) 2 VAR 33, 38-9; Re Organon (Aust) Pty Ltd v Department of Community Services and Health (1987) 13 ALD 588, [24].
  113. Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50, per Deane J, Brennan J agreeing, [44].
  114. Gibson v Latrobe City Council [2008] VCAT 1340; Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 604.
  115. Marple v Department of Agriculture (1995) 9 VAR 29, 47.
  116. Commissioner of State Revenue v Tucker [2021] VCAT 238, [175] citing Gibson v Latrobe City Council [2008] VCAT 1340; Marple v Department of Agriculture (1995) 9 VAR 29; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45 and Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427.
  117. See examples where the agency was found not be engaged in ‘trade or commerce’: ‘CT9’ and Department of Environment, Land, Water and Planning [2021] VICmr 73, [38]-[39]; ‘EZ4’ and Department of Treasury and Finance [2023] VICmr 4, [61]-[63].
  118. Chopra v Department of Education and Training [2019] VCAT 1860; Commissioner of State Revenue v Tucker [2021] VCAT 238, [174].
  119. Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50, per Deane J, Brennan J agreeing, [44].
  120. Gibson v Latrobe City Council [2008] VCAT 1340; Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 604.
  121. Marple v Department of Agriculture (1995) 9 VAR 29, 47.
  122. Commissioner of State Revenue v Tucker [2021] VCAT 238, [175] citing Gibson v Latrobe City Council [2008] VCAT 1340; Marple v Department of Agriculture (1995) 9 VAR 29; Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45 and Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427.
  123. See examples where the agency was found not be engaged in ‘trade or commerce’: ‘CT9’ and Department of Environment, Land, Water and Planning [2021] VICmr 73, [38]-[39]; ‘EZ4’ and Department of Treasury and Finance [2023] VICmr 4, [61]-[63].
  124. Chopra v Department of Education and Training [2019] VCAT 1860; Commissioner of State Revenue v Tucker [2021] VCAT 238, [174].
  125. Following City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 185. In City Parking, the respondent was held to be an agency engaged in trade or commerce as landlord, tenant or potential vendor of real estate.
  126. See also Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [41].
  127. Following City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170, 185. In City Parking, the respondent was held to be an agency engaged in trade or commerce as landlord, tenant or potential vendor of real estate.
  128. See also Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [41].
  129. Gibson v Latrobe CC [2008] VCAT 1340, [25].
  130. Davis v Department of Transport [2022] VCAT 721, [58].
  131. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [42].
  132. Gibson v Latrobe CC [2008] VCAT 1340, [25].
  133. Davis v Department of Transport [2022] VCAT 721, [58].
  134. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [42].
  135. Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345, 348.
  136. Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345, 348; Davis v Department of Transport [2022] VCAT 721, [58].
  137. Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168, [77].
  138. Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345, 348.
  139. Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345, 348; Davis v Department of Transport [2022] VCAT 721, [58].
  140. Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168, [77].
  141. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  142. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  143. Asher v Department of Innovation, Industry & Regional Development [2005] VCAT 2702, [42]-[43]; Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [61].
  144. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  145. Asher v Department of Innovation, Industry & Regional Development [2005] VCAT 2702, [42]-[43]; Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [61].
  146. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702, [38].
  147. Byrne v Swan Hill Rural City Council (2000) 16 VAR 366, [43].
  148. Dalla-Riva v Department of Treasury & Finance [2005] VCAT 2083, [90]-[97], [100]-[103].
  149. Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657, [29].
  150. Byrne v Swan Hill Rural City Council (2000) 16 VAR 366, [43].
  151. Dalla-Riva v Department of Treasury & Finance [2005] VCAT 2083, [90]-[97], [100]-[103].
  152. Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657, [29].
  153. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [43].
  154. CityLink Melbourne Limited v Department of Transport [2020] VCAT 1078, [147], [150]-[155].
  155. Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [62]-[72].
  156. Stewart v Department of Tourism, Sport and the Commonwealth Games [2003] VCAT 45, [43].
  157. CityLink Melbourne Limited v Department of Transport [2020] VCAT 1078, [147], [150]-[155].
  158. Fitzherbert v Department of Health and Human Services [2019] VCAT 201, [62]-[72].
  159. See Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, in the context of the words ‘scientific’ and ‘technical’ in the section 28(3) exemption.
  160. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294 in relation to section 28(3), approved in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [254] in relation to 34(4)(b)(iii).
  161. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294-5 in relation to section 38(3), approved in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [254] in relation to 34(4)(b)(iii).
  162. See Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, in the context of the words ‘scientific’ and ‘technical’ in the section 28(3) exemption.
  163. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294 in relation to section 28(3), approved in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [254] in relation to 34(4)(b)(iii).
  164. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294-5 in relation to section 38(3), approved in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [254] in relation to 34(4)(b)(iii).
  165. See example, Mees v University of Melbourne (General) [2009] VCAT 782, [31].
  166. See example, Mees v University of Melbourne (General) [2009] VCAT 782, [31].
  167. Re Coultbart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94, referred to with apparent approval in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [255].
  168. Re Coultbart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94, referred to with apparent approval in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [255].
  169. Hopper v Department of Agriculture and Rural Affairs (unreported, AAT of Vic, Harding PM, 20 December 1990).
  170. Re Coultbart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94, referred to with apparent approval in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [255].
  171. Re Coultbart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94, referred to with apparent approval in Johnson v Cancer Council of Victoria [2016] VCAT 1596, [255].
  172. Hopper v Department of Agriculture and Rural Affairs (unreported, AAT of Vic, Harding PM, 20 December 1990).
  173. AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [18].
  174. AU3’ and Victoria Police [2019] VICmr 184, [49].
  175. McKean v University of Melbourne [2007] VCAT 1310, [22]; ‘AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [18].
  176. McKean v University of Melbourne [2007] VCAT 1310, [25].
  177. McKean v University of Melbourne [2007] VCAT 1310, [25]-[26]; Melbourne University v McKean [2008] VSC 325, [30].
  178. McKean v University of Melbourne [2007] VCAT 1310, [29].
  179. McKean v University of Melbourne [2007] VCAT 1310, [28].
  180. See example, ‘AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [20]-[22].
  181. Melbourne University v McKean [2008] VSC 325, [27]; followed in ‘AU3’ and Victoria Police [2019] VICmr 184, [51].
  182. McKean v University of Melbourne [2007] VCAT 1310, [29]; see also ‘AU3’ and Victoria Police [2019] VICmr 184, [52].
  183. AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [18].
  184. AU3’ and Victoria Police [2019] VICmr 184, [49].
  185. McKean v University of Melbourne [2007] VCAT 1310, [22]; ‘AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [18].
  186. McKean v University of Melbourne [2007] VCAT 1310, [25].
  187. McKean v University of Melbourne [2007] VCAT 1310, [25]-[26]; Melbourne University v McKean [2008] VSC 325, [30].
  188. McKean v University of Melbourne [2007] VCAT 1310, [29].
  189. McKean v University of Melbourne [2007] VCAT 1310, [28].
  190. See example, ‘AP8’ and Victorian Curriculum Assessment Authority [2019] VICmr 143, [20]-[22].
  191. Melbourne University v McKean [2008] VSC 325, [27]; followed in ‘AU3’ and Victoria Police [2019] VICmr 184, [51].
  192. McKean v University of Melbourne [2007] VCAT 1310, [29]; see also ‘AU3’ and Victoria Police [2019] VICmr 184, [52].

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Last updated 13 November 2024

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