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Administrative Appeals Tribunal of Australia |
Last Updated: 6 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 469
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4494
Applicant
Respondent
DECISION
Place Brisbane (heard in Canberra)
...............Signed................
Deputy President
FREEDOM OF INFORMATION – request for access – respondent claiming exemptions on documents pursuant to s 34 and s 36 of the Freedom of Information Act 1982 (Cth) - decision under review set aside and substituted
Freedom of Information Act 1982 (Cth) ss 3, 34, 36
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Fisse v Secretary, Department of the Treasury and Another [2008] FCAFC 188; (2008) 172 FCR 513
Re Anderson and Special Minister of State (No 2) [1986] AATA 81; (1986) 4 AAR 436
Re McKinnon and Secretary, Department of Prime Minister and Cabinet [2007] AATA 1969; 46 AAR 136
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645
Secretary to the Department of Infrastructure v Asher [2007] VSCA 272; (2007) 19 VR 17
REASONS FOR DECISION
INTRODUCTION
BACKGROUND
(a) a report of 87 pages dated November 2009 by Mr Wayne Jackson described as “Strategic Review of Job Capacity Assessments Program” (the Jackson report);
(b) a report of 172 pages dated December 2009 by Dr David Rosalky described as “Strategic Review of Future Directions for Australian Government Service Delivery” (the Rosalky report); and
(c) a report of 470 pages dated February 2010 by Dr Neil Johnston described as “Strategic Review of Indigenous Expenditure” (the Johnston report).
“...in accordance with section 36 as the documents relate to internal working documents which contain information relating to proposed deliberations of Cabinet.”
Mr McKinnon submits that there is a factual significance in the terms of the refusal. We infer that it was informed, at least in part, by a letter sent by a Freedom of Information adviser within the Department of the Prime Minister and Cabinet. That letter, dated 21 July 2010, attaches a schedule which is, in part, inconsistent with the evidence given by Mr Angus. We will discuss the matter, and its significance, below.
THE LEGISLATION
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting betterinformed decisionmaking;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
“(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
“(1) A document is an exempt document if it is:
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;
(b) an official record of the Cabinet;
(c) a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”
By virtue of s 34(6) of the FOI Act, a reference in the section to the Cabinet is to be read as including reference to a committee of the Cabinet. Thus, for the purposes of s 34 of the FOI Act, the SPBC is to be regarded as the Cabinet.
“(1) 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.
(2) ...
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.”
SECTION 34
“...it was understood that the submission of the reports to Cabinet for its consideration would be by way of attachment of the executive summaries, rather than the full reports”.[5]
It is not clear to us who “understood” that. Reference was made to guidelines on Cabinet submissions that limit the number of pages of a cabinet submission (15 pages) and the attachments to the submission (50 pages). Those guidelines continue,
“In most cases, an executive summary of relevant reports or discussion papers is more appropriate for the Cabinet’s consideration than the full text of lengthy documents”.[6]
We are, however, prepared to assume that it was the common understanding of Ministers that a copy of a report referred to in a Cabinet submission by way of an extract of its executive summary would be made available to a Minister by the relevant Department upon request. But even with the benefit of that assumption (and having regard to the confidential affidavit of Mr Angus) we are not satisfied that the reports, or any of them, answer the description in s 34(1)(a) of the FOI Act of “a document that has been submitted to the Cabinet for its consideration”. Equally, we are not satisfied, that the reports, or any of them, were “brought into existence for the purpose of submission for consideration by the Cabinet”.
“...a summary of the report’s principles (Attachment C to submission KR10/0145) was circulated to ministers and considered by SPBC (Cabinet Minute KR 10/145/CAB/2 of 15 April 2010).”[8]
It is unfortunate that the inconsistency between the evidence of Mr Angus and the schedule appears to have gone unnoticed on the respondent’s side prior to the hearing. We assume that some attempt might have been made to explain the inconsistency if it had been detected. It is, for obvious reasons, most undesirable that there be inconsistencies of this nature where the Tribunal and Mr McKinnon are asked to accept, via Mr Angus, secondary evidence of the contents of the document which is, of course, the best evidence of its contents.
“...to fall within the exemption provided for by s 34(1)(a) of the Commonwealth Act, it was thus common ground between the parties that:
(i) merely establishing that the Executive Summary was in fact submitted to Cabinet was not sufficient to attract the exemption provided for in s 34(1)(a);
and that it was also necessary to establish that:
(ii) the purpose for which the Executive Summary was prepared was for its submission for consideration by Cabinet;
and that:
(iii) the purpose for which it was prepared was to be established as at the time the document was brought into existence.”
“Services
(a) Lead and set the strategic direction of the Strategic Review of Indigenous Expenditure Across Australian Government (consistent with the review’s terms of reference).
(b) Undertake and coordinate actions as required to ensure drafts and the review are completed within the given timeframe.
(c) Provide overall quality assurance of the review report.
(d) Consult with relevant key stakeholders and lead high level discussions (including regular feedback to Finance and the consultative group for the period of the review).”
The contract was performed and the report was produced and provided to the Department in February 2010. There being no reason to think otherwise we conclude that the document constituted by the Executive Summary of the Johnston Report was brought into existence by Dr Johnston at that time.
“• Drafts of review report sent to relevant agencies for comment
• Final Strategic Review report presented to Government
• Further consultation with affected agencies
• Finance and relevant agencies may present a separate follow-up document making recommendations to Government as part of the Budget process
• content and timing depends on post-review negotiations and on views of Ministers.”[12]
SECTION 36
“The central element of the claim that disclosure of the Strategic Review consultants’ reports would be contrary to the public interest is that disclosure would effectively breach Cabinet confidentiality since, as the evidence establishes, the reports the subject of the application were prepared at the request of the SPBC to inform Cabinet’s consideration of their respective subject matter”.[15]
We have rejected the factual premise of that submission however it is the case that the parts of the three reports were attached to a submission to Cabinet. The question then becomes whether disclosure of material, part of which was before Cabinet, would be contrary to the public interest.
“• Savings of $A 383 million over 4 years.
• More efficient and accurate assessments for Disability Support Pension and employment services.”[16]
Two of the seven strategic reviews identified in Dr Saunders’ speech are in the public domain, the Strategic Review of Australian Government Climate Change Programs and the Strategic Review of Administration of Australian Government Grants Programs.
“...enhance the democratic process and make the public better informed and promote discussion of public affairs.”[17]
The reports were self-evidently the product of considerable research. They were produced at a significant cost and address matters of great significance in the field of public administration. The question is whether, as the Department submits, “(d)isclosure would breach the convention of Cabinet confidentiality...”[18], a concept which is rightly said to be pivotal to the proper functioning of the executive and parliamentary organs of the Commonwealth. But the notion of “cabinet confidentiality” itself warrants some examination.
“...an assessment as to the ‘public interest’ required under s 36(1)(b) of the 1982 Act involves -- at least in part -- an assessment as to the reasons for and the basis upon which the common law has long recognised the need for confidentiality as to Cabinet decisions, submission and deliberations.”[19]
Mr McKinnon does not gainsay this proposition; he accepts that the public interest in the secrecy of Cabinet deliberations is very strong. But he draws a distinction, correctly as it seems to us, between the subject matter of Cabinet discussions and the discussions themselves. Put in its bluntest form, Mr McKinnon submits that it is not contrary to the public interest to disclose that Cabinet discussed, for example, a review of indigenous expenditure or to disclose the content of a report that had been made on that subject. It is contrary to the public interest to disclose the content of the deliberations, that is, the views expressed, or recommendations made, by Ministers. Here, he says, disclosure of the report does not disclose any view or recommendations of any Minister or the conclusions that Cabinet reached.
“But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support.” [Citations omitted].
“...serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.”
“The distinction between a document, as such, and the information which the disclosure of the relevant document would reveal, is of some consequence in the scheme of s 34. Section 34(1)(a)provides that a document is an exempt document if it is a document that has been submitted to Cabinet for its consideration, being a document that was brought into existence for that purpose. It is the fact of having been submitted to Cabinet for its consideration and of having been brought into existence for that purpose that, prima facie, attaches exempt status to the document as such. If those conditions are satisfied, the contents of the document are given exempt status regardless of the actual subject matter. The only exception to this automatic exemption, as earlier noted, is where the provisions of s 34(1A) apply (cf. s 34(1)(b) and (c)). By contrast, s 34(1)(d) only protects a document if the disclosure of the contents of the document would involve the disclosure of any deliberation or decision of Cabinet.”
“I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest.”
The other members of the Court, Vincent and Redlich JJA, agreed with those observations[25].
“...was prepared in order to enable the creation of another and quite separate document and it was the latter that was to be submitted for Cabinet consideration.”[26]
Here the consultants prepared reports containing an executive summary. It may be assumed that in each case the executive summary mirrored the contents of the report. In each case the executive summary (and an attachment in the case of the Johnston report) was attached to a Cabinet submission. But is not known how the submission dealt with the report or its executive summary. Disclosure of the report would disclose part of the subject matter of the relevant Cabinet consideration but it would not disclose any deliberations of Cabinet or disclose the views of any member of the Cabinet. Like Buchanan JA, we are unable to see how it is that “the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest.”
CONCLUSION
OBJECTS OF THE ACT
“Section 3(1)(b) is a statement of intent. Part IV of the FOI Act sets out what Parliament has regarded as the ‘exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.’ That it has done so is emphasised by the fact that each exemption is to be construed according to its own terms. It is not to be read as limited in its scope or operation in any way by any other provision of Part IV. That is the effect of s 32(a).”
We would reach the same conclusion in the present proceedings whichever version of the objects was to prevail.
COSTS
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr B Hughson, Member
Signed: ..........Signed............................................................
Associate
Date of Hearing 9 May 2011
Counsel for the Applicant Mr T Brennan (directly briefed)
Counsel for the Respondent Ms R Greycar
Solicitors for the Respondent Clayton Utz
[1] Then known as the Department of Finance and Administration.
[2] No. 51, 2010.
[3] The reference in s 3(1) to “the Government of Norfolk Island” was introduced by the Territories Law Reform Act 2010, No. 139, 2010.
[4] The claim for exemption upon s 34(1)(d) in paragraph 16 of the respondent’s Statement of Facts and Contentions was not pressed at the hearing.
[5] Respondent’s submissions paragraph [29].
[6] Exhibit 3 folio 36.
[7] Page 6 of exhibit 9.
[8] Exhibit 9.
[9] [2008] FCAFC 188; (2008) 172 FCR 513.
[10] [2008] FCAFC 188; (2008) 172 FCR 513 at [110].
[11] Exhibit 5 folio 132.
[12] Exhibit 5 folio 67.
[13] Exhibit 1 (supplementary T-documents).
[14] [2005] FCAFC 142; (2005) 145 FCR 70.
[15] Respondents submissions paragraph [64].
[16] Exhibit 5 folio 69.
[17] Exhibit 1 folio 124.
[18] Respondent’s submissions, paragraph [77].
[19] [2008] FCAFC 188; (2008) 172 FCR 513 at [102].
[20] [1993] HCA 24 at [6]; [1993] HCA 24; (1993) 176 CLR 604, 615-616.
[21] At [7].
[22] [1986] AATA 81; (1986) 4 AAR 436, 441-2 at [21].
[23] [2007] VSCA 272; (2007) 19 VR 17.
[24] [2007] VSCA 272 at [7].
[25] See at [52] and [56].
[26] At [36].
[27] [2003] AATA 1301; (2003) 78 ALD 645 at [146].
[28] [2008] FCAFC 188; (2008) 172 FCR 513 at [117].
[29] [2007] AATA 1969; 46 AAR 136 at [139].
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2011/469.html