Sportsbet v Department of Justice (General) [2010] VCAT 8 (16 March 2010)

Last Updated: 17 March 2010

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDER

The tribunal orders:

1. The decision under review is varied to the extent that document 2 is not exempt and Sportsbet shall be given access to it in full.
2. The decision under review is otherwise confirmed.
   
   

REASONS

INTRODUCTION

1. Sportsbet Pty Ltd is a bookmaker operating out of the Northern Territory. It provides internet gambling services, including to people in Victoria. Under the Freedom of Information Act 1982, Sportsbet sought access to certain documents relating to its racing gambling business and the regulation of the industry in Victoria. An officer of the Department of Justice released some of the documents in whole or in part. This is the company’s application for review of the decision not to release others.

GAMBLING ON HORSE RACING IN VICTORIA

2. The context of Sportsbet’s interest in the documents was the regulation of legal gambling on horse racing in Victoria.
3. To carry out its business, Sportsbet publishes race fields specifying the races, the horses and certain other information. Gamblers use these fields to place their bets with Sportsbet.
4. Under the Gambling Regulation Act 2003, any wagering service provider, such as Sportsbet, is prohibited from publishing a race field without the approval of the appropriate controlling body. For horse racing, that is Racing Victoria Limited.
5. Besides being a controlling body, Racing Victoria is part of a joint venture with Tabcorp Holdings Limited. The joint venture provides wagering services in racing in Victoria. Sportsbet and the joint venture are competitors in that market. Sportsbet objects to Racing Victoria being both a participant in and the regulator of the industry as it places Racing Victoria in a position of conflict of interest. The government has these arrangements under review.
6. Until repealed in 2007, s 2.5.16A(1) of the Gambling Regulation Act conferred a power to approve the publication of race fields, but did not specify any power to impose conditions. Racing Victoria administered the approval system on the basis that it had a condition power. It used that power to impose conditions on approvals requiring Sportsbet (and other wagering service providers) to pay an economic contribution based on gambling turnover. It developed a policy framework in respect of such conditions.
7. Racing Victoria also required Sportsbet and other providers to agree by deed to pay the contribution and not to challenge these arrangements. Undeterred, Sportsbet has brought a challenge in the Federal Court of Australia, which has not yet been determined.
8. Sportsbet paid the economic contribution under protest. It contended Racing Victoria did not have the power to impose any conditions, let alone conditions requiring it to pay a ‘tax’. It expressed this protest in strong terms to both Racing Victoria and the government.
9. At all material times, s 2.5.19 of the Gambling Regulation Act has conferred on the Minister for Racing a separate power to approve the publication of race fields information. One of the documents sought by Sportsbet relates to its unsuccessful attempt to get the minister to exercise that power in its favour.
10. In 2007, s 2.5.16A was replaced with amended provisions (new ss 2.5.19A – 2.5.19F) giving Racing Victoria an express power to impose conditions on any approval to publish race fields, including a condition requiring the wagering service provider to pay a fee or fees.[1]
11. The last thing to mention is that similar approval arrangements in other states and the territories have been challenged on constitutional grounds in the High Court of Australia. The gambling service providers had a success in Betfair Pty Limited v Western Australia.[2] On the challenge of a provider based in Tasmania, the court held (among other things) that the Western Australian race field legislation was invalid as an impermissible fetter on freedom of interstate trade and commerce contrary to s 92 of the Australian Constitution.

DOCUMENTS IN ISSUE

Request for information

12. By a letter dated 4 December 2007, Sportsbet sought access to this information:
    1. Correspondence between the Minister for Racing and Tabcorp Holdings Ltd (‘Tabcorp’) between June 2007 and November 2007 relating to one or more of the following:

(a) Northern Territory Bookmakers;

(b) Setting of product fees by Racing Victoria or in respect of Victorian Racing;

(c) The competition between Tabcorp and Northern Terrriotry corporate bookmakers; or

(d) Amendments to the Gambling Regulation Act 2003.

2. Correspondence between the Minister for Racing and Racing Victoria Limited (RVL) between June 2007 and November 2007 relating to one or more of the following:

(a) Northern Territory Bookmakers’

(b) Setting of product fees by Racing Victoria or in respect of Victorian Racing;

(c) The competition between Tabcorp and Northern Territory corporate bookmakers;

(d) Amendments to the Gambling Regulation Act 2003;

3. Memoranda, briefing notes, reports between January 2007 and November 2007 relating to:

(a) Northern Territory Bookmakers;

(b) Setting of product fees be Racing Victoria or in respect of Victorian Racing;

(c) The competition between Tabcorp and Northern Territory corporate bookmakers;

(d) Amendments to the Gambling Regulation Act 2003.

13. The relevant officer of the department identified twelve documents. Taking into account those released and others not now sought by Sportsbet, the four documents specified in the table remain in issue.
    
    

Table: documents in issue

14. As you can see, the four documents in issue are all departmental briefs to the minister. The exemptions claimed are ss 30(1) (internal working documents), 32 (legal professional privilege) and 35(1) (confidential communications).
15. Sportsbet has taken the exemption claimed under s 32 out of contention. It concedes it should not get access to information which is legal professional privileged. It invites the tribunal to edit the documents to redact material of that kind. It trusts the assessment of the tribunal in this regard. The department contends that redaction is not feasible.

Document 1

16. The documents were described by Ged Prescott, the manager of the Office of Racing in the Office of Gaming and Racing in the department, who gave evidence on behalf of the department.
17. Mr Prescott deposed that ministerial briefs are prepared by officers of the department on a confidential basis between the department and the minister. I accept that evidence. The briefs were not marked ‘confidential’. In my view, to attract that status it was not necessary for the briefs to be so marked. Most advisory briefs prepared by departments for their ministers would fall into that category, as do ‘policy blues’ prepared for the Premier.[3]
18. Mr Prescott described document 1 as a three-page brief to the minister dated 9 October 2007 attaching an eight-page letter of legal advice. It was prepared by a policy officer in the Office of Racing. The brief concerned applications for approval for publication of race fields made under s 2.5.19 of the Gambling Regulation Act. Mr Prescott and his executive director endorsed the brief before it was sent to the minister.
19. Sportsbet had made an application for approval by a letter dated 26 June 2007, which was in evidence. Document 1 is the department’s brief to the minister as to how he should respond to that and another request for approval. It made recommendations and provided draft correspondence. The minister rejected the application by a letter dated 18 October 2007, which was also in evidence.

Document 2

20. Document 2 is a three-page brief to the minister dated 24 May 2007. It was prepared by a policy officer in the Office of Racing. It was endorsed by Mr Prescott and his executive director before it was sent to the minister.
21. Mr Prescott described the brief as commenting on the legislation which regulated the publication of race fields, being s 2.5.16A of the Gambling Regulation Act, ‘as implemented’. I have inspected the document. It deals with the subject of implementation by Racing Victoria. This is an information update brief. It recommends only that the minister note the information provided.

Document 3

22. Document 3 is a five-page brief to the minister dated 1 October 2007. It concerns issues to be discussed at an upcoming meeting with an industry stakeholder. It was prepared by Mr Prescott and endorsed by his executive director before being sent to the minister. The information in the brief was prepared in consultation with industry stakeholders, but the brief was not provided to them.
23. I have inspected document 3. It briefs the minister in detail about the issues which might be raised by the stakeholder at the meeting and recommends what the minister’s response might be.

Document 6

24. Document 6 is a seven-page brief to the minister dated 1 May 2007. It was prepared by a policy officer in the Office of Racing.
25. The brief concerns legislative amendments to be made to the race field provisions of the Gambling Regulation Act, that is, s 2.5.16A prior to its repeal. It advises the minister about a number of issues raised by the existing terms of the provisions and how these issues might be addressed by amendment. It refers to and comments on legal advice which had been obtained on that subject.
26. The brief was prepared following a request by Racing Victoria for consideration of amendment of the race fields legislation. The minister’s detailed response to Racing Victoria, which was in favour of amendment, was in evidence. The amendments were subsequently passed as new ss 2.5.19A-F (see above).

Extensive information in public domain

27. As established by Sportsbet, there is a great deal of information in the public domain about the subject-matter of the documents in issue.
28. Senior counsel for Sportsbet cross-examined Mr Prescott extensively by reference to a folder of materials dealing with the race fields legislation, the role of Racing Victoria, the joint venture with Tabcorp, the opposition of Sportsbet to the current provisions and regulatory arrangements and the alleged deficiencies in the legislation and those arrangements. The materials included correspondence between Sportsbet and Racing Victoria, the policies of Racing Victoria with respect to approving publication of race fields, correspondence expressing Sportsbet’s protest at having to pay economic contributions, correspondence between the minister and Racing Victoria concerning the government’s intention (at Racing Victoria’s request) to amend the race field legislation, correspondence between Tabcorp and the minister about the thoroughbred racing industry review and bookmaker licensing, the approvals given by Racing Victoria to Sportsbet to publish race fields and the deed containing the conditions and, finally, the discussion paper of the bookmaking reforms working party.
29. Mr Prescott conceded that by October 2007, by which time all the briefs had been prepared, the subject-matter with which they dealt was ‘well and truly in the public domain’.
30. While the subject-matter of the four briefs may have been in the public domain, the advice given to the minister about how he should deal with the issues that had been raised was not.
31. I will deal with this application for review under the two exemption categories, beginning with s 30 (internal working documents).

INTERNAL WORKING DOCUMENTS

Principles

32. Under s 30(1)(a) and (b) of the Freedom of Information Act, a document is exempt if its disclosure would disclose deliberative material and would be contrary to the public interest.
33. Deliberative material is (in the words of s 30(1)(a)):

matter in the nature of opinion, advice or recommendation prepared by an officer or Minister ... in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; ...

34. There is no dispute in this case about the principles governing the application of s 30(1)(a) and (b). As to the public interest test in s 30(1)(b), I repeat what I said in McIntosh v Department of Premier and Cabinet:[4]

The collection of the authorities in Re Wells and Department of Premier and Cabinet[5] was cited with approval by Maxwell P in Secretary, Department of Justice v Osland.[6] The proper approach is set out in those authorities. So far as I can see, the observations in the recent decisions in the High Court, taken as a whole, do not suggest any changed approach.[7]

Under the principles, the application of the public interest in s 30(1)(b) involves a balancing of various considerations. The starting point is the object of the Act in s 3(1), which emphatically recognises the right of the community to access information, limited only by exemptions which protect essential public interests.[8] Those purposes are always directly relevant when considering the public interest, but may be especially strong, and outweigh other aspects of the public interest, where access to the information is necessary to address questions that have acquired a particular importance in the mind of the community.

Other relevant consideration have been identified in such authorities as Re Howard and Treasurer of Commonwealth of Australia[9] and Re Hulls and Victorian Casino and Gaming Authority,[10] details of which are set out in Re Wells and Department of Premier and Cabinet.[11] Among those considerations are the purposes of the exemption in s 30. In the words of Maxwell P, these ‘include the efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice.’[12]

35. The department submitted that freedom of information processes were not meant to be used as an alternative means of civil discovery. Sportsbet is not misusing these processes to gain an impermissible advantage in its litigation in the Federal Court. It has a freestanding legitimate interest in obtaining access to the information it seeks.

Public interest grounds of the parties

36. As directed by the tribunal, the parties filed statements setting out the public interest grounds relied on, both in respect of s 30(1)(b) and s 35(1)(b) (confidential communication). The public interest override in s 50(4) was not seriously pressed by Sportsbet.
37. These are the public interest grounds relied on by Sportsbet:
    1. Ensuring that wagering markets in Victoria are accountable.
    2. Ensuring that gambling in Victoria is open, accountable and transparent.
    3. Ensuring that the arrangements between the State of Victoria, Government agencies including Racing Victoria and the TAB are open and accountable.
    4. Ensuring that the TAB is not given preferential treatment in relation to the regulation of gambling in Victoria.
    5. Ensuring that fees and charges that are imposed on interstate book makers are lawful, fair, reasonable and not discriminatory.
38. The public interest grounds relied on by the respondent were specified in its statement. The grounds include:
    • protecting the capacity of the minister to obtain accurate and full information about legislative amendments, particularly in relation to problems, ambiguities or uncertainties in the race fields legislation
    • protecting the capacity of the minister to obtain full and frank advice
    • protecting the integrity of the relationship between the government and the racing industry and the maintenance of an effective and efficient partnership between the two
    • providing for an efficient, effective and well-disciplined racing industry and maintaining public confidence in that industry
    • regulating the racing industry in a trustworthy manner.

Inspection of the documents

39. Section 56 of the Freedom of Information Act implicitly authorises the constituting member or the relevant staff of the tribunal to inspect any document produced to the tribunal which is claimed to be an exempt document.
40. I inspected the four documents at issue in the present case. Without doing so, I could not fully evaluate the submissions of the parties, and particularly the evidence and submissions of the department, going to whether the documents were or were not exempt.

Document 1

41. In terms of its content, document 1 is wholly deliberative. This brief describes the consideration by the Office of Racing and the minister of Sportsbet’s application for approval under s 2.5.19 of the Gambling Regulation Act and the issues which it raised. There is an extensive discussion of the legal issues, which are the subject of the attached advice. The recommendations in the brief follow this consideration and discussion.
42. No question of editing the document to redact ‘purely factual’ or exempt material arises.[13] The legal and factual material are embedded in the deliberative content.
43. On balance it would be contrary to the public interest to release this document.
44. The legitimate interest of Sportsbet in the contents of the document is a public interest consideration in favour of release. Further, the brief engages the public interest grounds relied on by Sportsbet. There is a connection between s 2.5.16A (as it was at the time) and s 2.5.19 of the Gambling Regulation Act. The company had raised issues, which I have described, about the approval arrangements then in place under s 2.5.16A. If the minister’s discretion under s 2.5.19 had been exercised in Sportsbet’s favour, many of these issues would have been resolved. That the discretion was not exercised in its favour forced Sportsbet back into the arrangements which it opposed.
45. The brief relates to the way in which the minister might exercise the statutory power of approval. The application for approval, the rejection by the minister and the reasons for it have been communicated to Sportsbet. The process appears regular. Nothing in the evidence elevates this document to a high plane of public interest importance.
46. As to the considerations of public interest against release, the department’s submissions rely too much on the character of document 1 and the other briefs as a class. Ministerial briefs are not exempt as a class and must be considered case by case.
47. In terms of specific content and overall context, the public interest considerations against releasing document 1 are compelling. As with all four of the briefs, this one was plainly written confidentially for the minister. The minister was entitled to receive advice of this kind from his departmental advisers about the exercise of the statutory discretion. The proper exercise of the discretion turned on a range of competing legal and policy considerations which the minister needed to consider on their merits. This is a high-order brief between the senior officers of a department and their minister about the exercise of a statutory power in an important and sensitive context. The minister can be judged on the outcome of his process of consideration, which is a matter of public knowledge.
48. The department relied on the need for frankness and candour as a consideration against disclosure. I accept that submission here because, in terms of the legal content and policy analysis in the brief, the departmental officers may have been inhibited if they felt the brief would be made public. To be of real use to the minister, it had to be confidential between him and his advisers.
49. It would be contrary to the public interest to release this brief. I therefore uphold the department’s claim for exemption under s 30 in respect of document 1.

Document 2

50. The claim that document 2 is deliberative in content is highly tenuous. It is mostly a descriptive account of the implementation of the power in s 2.5.16A (as it then was) by Racing Victoria. The limited commentary in the brief perhaps qualifies as advice, recommendation or opinion, but that is very much the minority of the document. I would find that it did not qualify for exemption as an internal working document on this ground alone.
51. Even if it did come within s 30(1)(a), the brief gave information to the minister about the implementation of existing legislation. The brief simply recommended that he note the specified information. It mentioned policy issues in the context of the descriptive account, but not at any depth and only as relevant to that account.
52. All the public interest grounds relied on by Sportsbet are relevant here to a greater or lesser extent. The main public interest consideration favouring release is the company’s legitimate interest in accessing the document.
53. The department’s case in respect of this document is little more than that it is exempt as a confidential brief to a minister. This is a claim to exempt status for briefs to ministers as a class, which is not supported by the provisions of the Freedom of Information Act or the applicable jurisprudence. The high level of the briefing is an important consideration. It is not enough of itself to uphold the exemption claimed, especially because the content of the document is essentially descriptive.
54. While the brief was written confidentially for the minister, there is nothing inherently confidential about the actual content of the brief. To the extent that the brief includes factual matter and information obtained from industry sources, it has not been proved that this was provided confidentially. The generalised statements of Mr Prescott are insufficient in this regard. The information goes little beyond, if at all, what Sportsbet has demonstrated to be public knowledge. The brief refers to some limited statistical and financial information. It was not submitted, and certainly not proved, that this is particularly sensitive or confidential.
55. Even if this brief was deliberative in content, it would not be contrary to the public interest to release it. I therefore reject the claim to exemption under s 30 made in respect of document 2.

Document 3

56. The contents of document 3 are plainly deliberative. This brief discusses at length what might be raised by the industry stakeholder at their meeting with the minister, and the minister’s possible responses. In raising issues of possible concern to the stakeholder, and how the minister might respond, it may be compared to briefs about possible parliamentary questions.[14]
57. The brief is wholly deliberative in content. It contains factual material, but it is embedded in the analytical content. It is not reasonably practical to produce an edited document.[15] Severance cannot be achieved without compromising the privacy of the remainder.[16] The factual and deliberative content are intertwined.[17]
58. Some of the material in the document comes from the stakeholder. It too is embedded in the advisory analysis.
59. As the meeting would likely have discussed issues of racing industry gambling regulation, I accept the relevance of Sportsbet’s public interest grounds in favour of disclosure. These grounds are, in my view, outweighed by the contrary considerations.
60. It is important in the public interest that people in industry and the community are able to meet with ministers, including privately, to discuss issues of concern. It is equally important that ministers are able to obtain confidential and independent advice about what might be discussed and the responses that might be given at such meetings. The integrity of the process by which ministers meet, publicly or privately, with industry and the community might be undermined if a minister’s preparatory briefings were to be released. That is a significant public interest consideration.
61. In this case, there is nothing in the general circumstances, the contents of document 3 or the matters relied on by Sportsbet to outweigh that consideration. It would be contrary to the public interest to release this brief.
62. I therefore uphold the department’s claim to exemption under s 30 in respect of document 3.

Document 6

63. Document 6 is an entirely deliberative brief to the minister. It contains an introductory background section with a lot of factual information. This and the other factual information is intermingled with the advisory content of the brief. It is not reasonably practical to edit the factual and non-exempt content out of the brief. The same may fairly be said of the legal advisory content.
64. The brief discusses in detail the issues raised by Racing Victoria, and others raised by the department, in relation to the need for the race fields legislation (then s 2.5.16A) to be amended. It evaluates the effectiveness of the legislation, the areas of possible deficiency and the options for reform.
65. It is clearly in the public interest for ministers to have access to confidential, frank and independent advice about the enactment or amendment of legislation. Assessing the need for and preparing legislation for the consideration of parliament is a fundamental function of government, especially ministers. As here, the issues can be complex and involve many competing policy considerations and interests. The process if considering possible legislation is typically iterative. The relevant issues and the weight given to the various factors, options and interests may change over time. The content of legislation as actually presented and passed can be publicly debated according to the usual democratic and parliamentary processes. Disclosing departmental advice given to ministers about proposed legislation could impair the integrity of the deliberative process. This is an important public consideration.
66. In the present case, it is public knowledge that Racing Victoria sought the legislative amendments. The response of the minister is in writing, in detail and in evidence. The relevant legislation was passed in 2007 and is now in force. It can be assessed by Sportsbet on its merits. Admitting the company’s legitimate interest in obtaining access to the minister’s departmental advice, it would be contrary to the public interest to release it.
67. I therefore uphold the department’s claim to exemption under s 30 in respect of document 6.

MATERIAL OBTAINED IN CONFIDENCE

68. Section 35(1) relevantly applies to ‘information or matter communicated in confidence by or on behalf of a person or a government to an agency or a minister’ and its disclosure would be contrary to the public interest by reason of a reasonably likely impaired ability to obtain similar information in the future.
69. The legal advice in the four briefs may be put to one side. Sportsbet has made concessions in respect of such advice.
70. The department advanced a very wide case with respect to the operation and application of s 35. It contended that, quite separately from s 30, the information or matter in the briefs come within s 35 because the briefs were confidential communications between departmental officers and the minister. In the department’s submission, each of the briefs as a whole is information or matter within s 35(1). On those submissions, the only issue that arises is whether disclosure would be contrary to the public interest in the specific respect mentioned in s 35(1)(b).
71. The department’s submission gains some support from Re Birnbauer v Inner and Eastern Health Care Network.[18] In that case, Macnamara DP held that s 35(1) was ‘capable of operating with respect to information communicated to an agency not only by outsiders but also by its own officers.’[19] The deputy president expressed that conclusion after a careful analysis of the tribunal and court jurisprudence. Sportsbet submitted that Birnbauer was incorrectly decided on this point.
72. The issue before me is whether information or matter in a departmental brief provided confidentially to a minister comes within the opening words of s 35(1), whatever its source. Many – perhaps most - departmental briefs are prepared for the confidential attention of the minister. Accepting this proposition would mean that such briefs would be exempt under s 35(1), subject only to the limited public interest test in s 35(1)(b). Speaking generally, that is not the way the Freedom of Information Act has hitherto been administered.
73. The structure of the exemption scheme in the Freedom of Information Act does not support this interpretation of s 35(1). A departmental brief to a minister more naturally comes within the internal working document exemption in s 30. The terms of that exemption and its general public interest test provide an effective mechanism for considering the issues raised by disclosure of such documents. The application of s 35(1) to such documents seems strained.
74. The concept of ‘information or matter’ communicated by a person or a government to a minister is apt to describe something specific coming from a source separate to those directly responsible for advising the minister. It is not a natural way to describe the entire contents of a brief containing departmental advice to a minister, even a confidential one. It is equally unnatural to treat information or matter communicated in confidence by a government as including the entire contents of an advisory brief provided by an officer in a government department directly to their minister.
75. If the opening words of s 35(1) apply to such departmental briefs, the public interest test in s 35(1)(b) must be applied. This requires a judgment to be made about whether disclosing the information in the brief would be reasonably likely to impair the ability of the minister to obtain similar information in briefs in the future. That question boils down to whether the minister’s capacity to obtain briefs from their own departmental officers would be so impaired. That is not the subject of s 35(1) but rather of s 30. The public interest test in s 35(1)(b) is more limited than the one in s 30(1)(b). The public interest test in s 35(1)(b) is more naturally directed to protecting a minister’s access to sources of confidential information from sources other than officers of their own department who are directly responsible for advising them.
76. Perhaps the strongest indication that s 35 does not operate as the department contends in that it would leave s 30 with little work to do in such cases. Under s 30(1)(b), whether the minister might be impaired in obtaining similar advice in the future – which comes within the familiar frankness and candour formulation – is but one consideration to be weighed in the general public interest balance. Yet, as I have said, many – perhaps most – departmental briefs to ministers are provided confidentially. Therefore, on the department’s submissions, such briefs would be exempt under s 35(1) if the limited public interest test in paragraph (b) was satisfied, without the wider public interest considerations arising under s 30(1)(b) being considered (subject to the public interest override in s 50(4)).
77. Of course, where a departmental brief contains information or matter communicated confidentially by a source outside the department, s 35(1) potentially applies. Consistently with the logic of Macnamara DP in Birnbauer,[20] I can understand how s 35(1) might apply to something specific of which a departmental officer has become aware and reports to the minister through confidential channels. In such a case the officer’s position is analogous to that of an outside source. There are cases where s 35(1) might potentially apply because an officer in a department provides information or matter confidentially, not to their own minister, but to a separate department, agency or minister. The information provided confidentially by the public servants to the Ombudsman in Re Woodford v Ombudsman[21] is a good example. These instances are all very removed from the provision of advisory briefs by departmental officers to their ministers.
78. Finally, I can see how s 35(1) might apply to confidential information provided confidentially by one part of a department to another (especially if it is separately arranged and administered), as with some of the information provided by Victoria Police to the Ethical Standards Department in XYZ v Victoria Police.[22]
79. In my view, the proper interpretation of s 35(1) must yield to the general context of the scheme of the legislation as a whole,[23] the parliamentary intention that its provisions be interpreted so as to further the freedom of information objectives in s 3[24] and the beneficial manner in which the legislation is generally interpreted.[25] So interpreted, the contents of a departmental brief prepared by those directly responsible for advising a minister do not come within s 35(1) simply because the brief has been confidentially to the minister. In such a case, that the briefs contain ‘information or matter’ which was ‘communicated in confidence’ must be specifically established independently of the confidentiality of the brief itself.
80. The confidentiality of communication of such information or matter must be established and as a fact and can be implied from circumstances.[26] The department’s claim to exemption for the briefs under s 35(1) falls at this first hurdle. It has not been established that the information or matter in the briefs was communicated to the department in confidence. I do not accept the generalised claims to receiving information confidentially from Racing Victoria made in Mr Prescott’s evidence. Indeed, the evidence establishes that the factual content of the briefs was largely common knowledge, even if the advisory content was not. My inspection of the briefs confirms my assessment in this regard.
81. I therefore reject the department’s claim that the briefs are exempt under s 35.

CONCLUSION

82. Sportsbet Pty Ltd has sought review of the decision of an officer of the Department of Justice not to release four briefs to the Minister for Racing under the Freedom of Information Act. The briefs confidentially provided to the minister advice in respect of an application for approval under the Gambling Regulation Act, certain update information in relation to the implementation by Racing Victoria Limited of a separate approval power, advice and information in preparation for an upcoming meeting with an industry stakeholder and advice about amending the approval legislation.
83. The department claimed the briefs were exempt under ss 30(1) (internal working documents), 32 (legal professional privilege) and 35(1) (confidential communications).
84. Sportsbet conceded the case with respect to s 32. It did not seek disclosure of information which was legal professional privileged.
85. As to three of the briefs (documents 1, 3 and 6), I have decided the documents are exempt under s 30. These briefs are internal working documents containing deliberative material. Sportsbet has legitimate reasons in the public interest for seeking access to the documents. However, on balance, it would be contrary to the public interest to order their release. Doing so could undermine the minister’s access to frank, confidential and independent advice from his own department about sensitive and important matters.
86. As to one of the briefs (document 2), I have rejected the claim to exemption under s 30. This is an information update brief. It is not deliberative in nature. Even if it was, it would not be contrary to the public interest to release it, despite it being provided to the minister by his department confidentially, because the contents are mostly publicly known.
87. I have decided that none of the four briefs are exempt under s 35(1). In my view, the exemption in s 35(1) does not apply to information or matter in briefs by officers of departments to their own minister simply because the briefs are confidential. The confidentiality of the source of the information or matter must be independently established. That was not done here.
88. In the result, the decision of the department that three of the briefs (documents 1, 3 and 6) are exempt will be confirmed. Its decision that one of the briefs (document 2) is exempt will be set aside. There will be an order giving Sportsbet access to that document.
    
    

[1] Section 2.5.19D(4) of the Gambling Regulation Act as inserted by the Gambling Legislation Amendment (Problem Gambling and Other Measures) Act 2007, which relevantly commenced on 4 September 2008 (ss 5 and 6 of the amending legislation fixed to so commence by notice in the Victorian Government Gazette dated 4 September 2008).

[2] [2008] HCA 11; (2008) 234 CLR 418.

[3] McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [26]-[30].

[4] [2009] VCAT 1528, [17]-[19].

[5] [2001] VCAT 1800; (2001) 18 VAR 293, 299-302.

[6] [2007] VSCA 96; (2007) 95 ALD 380.

[7] See McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 and Osland v Secretary, Department of Justice (2008) 234 CLR 275.

[8] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, [19].

[9] [1985] AATA 100; (1985) 7 ALD 626, 634-635.

[10] (1997) 12 VAR 483, 488.

[11] [2001] VCAT 1800; (2001) 18 VAR 293, 299-302.

[12] Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 95 ALD 380, 399-400.

[13] Cf McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [15]-[16].

[14] See McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [56]-[70].

[15] Ibid [15].

[16] Re Howard and Treasurer of Commonwealth of Australia [1985] AATA 100; (1985) 7 ALD 626, 632.

[17] Re Kosky and Department of Human Services (1998) 13 VAR 420, 424.

[18] (1999) 16 VAR 9.

[19] Ibid [15].

[20] Ibid [14].

[21] [2001] VCAT 721; (2001) 18 VAR 64, [78]-[101].

[22] [2010] VCAT 255.

[23] See generally CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[24] Section 3(2) and s 35(a) of the Interpretation of Legislation Act 1984.

[25] See Ryder v Booth [1985] VicRp 86; [1985] VR 869, 877 per Gray J; Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41, 61 per Ashley J; Osland v Secretary, Department of Justice (2008) 234 CLR 275, 305-306 per Kirby J; Ryder v Booth [1985] VicRp 86; [1985] VR 869, 883.

[26] Ryder v Booth [1985] VicRp 86; [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255, [265].