Australian Broadcasting Corporation and Secretary, Department of Industry, Science, Energy and Resources (Freedom of information)
[2022] AATA 1451
•7 March 2022
Australian Broadcasting Corporation and Secretary, Department of Industry, Science, Energy and Resources (Freedom of information) [2022] AATA 1451 (7 March 2022)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2020/1443 FREEDOM OF INFORMATION DIVISION ) Re: Australian Broadcasting Corporation
Applicant
And: Secretary, Department of Industry,
Science, Energy and Resources
RespondentDIRECTION
TRIBUNAL: The Hon. Dennis Cowdroy AO QC, Deputy President
DATE OF CORRIGENDUM: 1 April 2022
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to alter the text of the decision in this application as follows:
- the text in paragraph [112] be replaced to read as follows:
As noted, the Tribunal must consider the public interest. The same factors as considered with respect to document 5d apply in this instance and on balance, the public interest requires that the redacted portion of this document not be released.
- the reference to list items “c)” and “d)” in paragraph [144] be amended to “a)” and “b)”.
......................[SGD]..................................
The Hon. Dennis Cowdroy AO QC,
Deputy PresidentDivision:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/1443
Re:Australian Broadcasting Corporation
APPLICANT
AndSecretary, Department of Industry, Science, Energy and Resources
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:7 March 2022
Place:Sydney
The Tribunal makes the following findings:
a)in respect of documents 5d, 6a, 6b, 7b, 7c, 7e, 7f, 7g, 8, 9a and 12; the Tribunal affirms the reviewable decisions;
b)in respect of document 9; for the reasons provided above, the Tribunal finds that paragraph 4 document 9 is not exempt under section 47C. As such, the Tribunal varies the decision under review so that the applicant is to be provided access to paragraph 4 of document 9.
.................................SGD.......................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – OAIC decided not to review (FOI Act s 54W) – documents conditionally exempt in part or in full as ‘deliberative material’ – document exempt as cabinet document – whether parliamentary privilege applies to documents tendered by the applicant - whether disclosure of the conditionally exempt material is in the public interest – 11 reviewable decisions affirmed – one reviewable decision varied.
LEGISLATION
Freedom of Information Act 1982 (Cth) s 3, 4, 11, 11B, 34, 47C, 54W
Parliamentary Privileges Act 1987 (Cth) s 15, 16
CASES
AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464
British AmericanTobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123
Combined Pensioners and Superannuants Association of NSW Inc and Deputy Prime Minister and Treasurer [2013] AICmr 70 [17]
DavidSyme & Co Ltd v General-Motors Holden’s Ltd [1984) 2 NSWLR 294
Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63
“GI” and Department of the Prime Minister and Cabinet [2015] AICmr 51 [20].
Howard and Treasurer of the Commonwealth (1985) 7 ALD 626
Leyonhjelm v Hanson-Young [2021] FCAFC 22
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunaland Ors [2012] HCA 36; (2012) 246 CLR 379
R v Murphy (1986) 5 NSWLR 18
Rann v Olsen (2000) 159 FLR 132
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Secretary, Department of Defence and Thomas (Freedom of Information) [2018] AATA 604
Wake v John Fairfax& Sons Ltd [1973] 1 NSWLR 43
SECONDARY MATERIALS
Freedom of Information Guidelines by the Office of the Australian Information Commissioner (combined June 2020)
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
7 March 2022
By way of an application for review on 12 March 2020, the Australian Broadcasting Corporation (“ABC” or “the applicant”), sought review of a decision made by a delegate of the Secretary, Department of Industry, Science, Energy and Resources[1] (“the respondent”) to refuse access to documents under the Freedom of Information Act 1982 (Cth) (“FOI Act”).
[1] The decision was originally handled by the Department of the Environment and Energy. Due to machinery of government changes, the Department of Industry, Science, Energy and Resources instead has responsibility for the policy function and subsequently, the freedom of information request that is subject of this proceeding.
The applicant originally sought review of the respondent’s decision by the Office of the Australian Information Commissioner (“OAIC”). On 24 February 2020, a delegate of the OAIC decided to exercise the discretion not to undertake a review in accordance with subsection 54W(b) of the FOI Act. Such provision authorises the OAIC not to undertake a review if the interests of the administration of the FOI Act make it desirable that the reviewable decision be considered by the Tribunal.
LEGISLATION
The documents that are the subject of this application comprise records created for the purpose of a Cabinet submission and similar purposes. The documents in issue are described more fully hereunder.
Relevant provisions of the Freedom of Information Act
It is useful to refer to the principal statutory provisions of the FOI Act which will have application in this matter.
Section 3 – Objects – general
Subsection 3(1) relevantly states:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
Section 4 – Interpretation
Subsection 4(1) contains definitions used in the FOI Act. For present purposes, the relevant definitions are:
exempt document means:
(a)a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or
(b)a document in respect of which, by virtue of section 7, an agency, person or body is exempt from the operation of this Act; or
(c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.
exempt matter means matter the inclusion of which in a document causes the document to be an exempt document.
Section 11 relevantly provides for a right of access as follows:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
Section 31B – Exempt documents
Section 31B provides that:
A document is exempt for the purposes of this part if:
(a)it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Section 34 – Cabinet documents
Section 34 provides in relevant part:
(1) A document is an exempt document if:
(a)both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b)it is an official record of the Cabinet; or
(c)it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d)it is a draft of a document to which paragraph (a), (b) or (c) applies.
…
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Section 47C – Public interest conditional exemptions – deliberative processes
Section 47C relevantly provides that:
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative 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:
(a)an agency; or
(b)a Minister; or
(c)the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a)operational information (see section 8A);
(b)purely factual material.
(3) This section does not apply to any of the following:
(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 body or organisation, prescribed by the regulations, that is established within an agency;
(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.
Other provisions of the FOI Act will be addressed as relevant where specific categories of documents are dealt with in these reasons.
DELIBERATIVE MATTER
Part III of the FOI Act provides a legally enforceable right to obtain access to documents of an agency, other than an exempt document (see paragraph 11(1)(a)), or an official document of a Minister, other than an exempt document (see paragraph 11(1)(b)).
Pursuant to subsection 11A(5), the agency or a Minister must give the person access to the document if it is conditionally exempt unless access to the document at that time would, on balance, be contrary to the public interest. Authorities concerning the interpretation of “public interest” are considered later in these reasons. However, there are certain requirements as stated in section 11B of the FOI Act.
Section 11B relevantly contains the following provisions:
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
…
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
DOCUMENTS IN ISSUE
Pursuant to the applicant’s requests for production of documents under the FOI Act, the Tribunal is informed that numerous documents have been made available to the applicant.
The documents remaining in issue are tabled below. Material in each of these twelve documents are claimed by the respondent to include deliberative matter the disclosure of which would, the respondent claims, be contrary to the public interest to disclose. Part of one document (document 9) is also claimed to relate to a Cabinet submission.
Document
Description
Respondent decision
Exemption claimed
5d
Meeting 2 Agenda Paper 5 Supporting the Government to manage climate risk
Part release
Section 47C – deliberative material
6a
Meeting 2 – Minutes for circulation
Part release
Section 47C – deliberative material
6b
Meeting 2 – Scenario vignette Record of Discussion
Exempt in full
Section 47C – deliberative material
7b
Meeting 3 FINAL Agenda Paper 3 Scenario Exercises
Part release
Section 47C – deliberative material
7c
Meeting 3 Agenda Paper 3 Scenario 1 Final Report
Part release
Section 47C – deliberative material
7e
Meeting 3 Agenda Paper 3 Scenario 1 Final Report – Attachment B Briefing Pack
Exempt in full
Section 47C – deliberative material
7f
Meeting 3 Agenda Paper 3 Scenario 1 Final Report – Attachment C Sectoral Impacts
Exempt in full
Section 47C – deliberative material
7g
Meeting 3 Agenda Paper 3 Scenario 1 Final Report – Attachment D
Exempt in full
Section 47C – deliberative material
8
Meeting 3 FINAL Minutes
Part release
Section 47C – deliberative material
9
Brief to the Minister for the Environment and Energy
Part release
Section 34(3) cabinet exemption; section 47C – deliberative material
9a
Attachment A
Exempt in full
Section 47C – deliberative material
12
Secretaries Board Nov 2017 Agenda Paper – climate risk
Part release
Section 47C – deliberative material
HISTORY OF CREATION OF THE DOCUMENTS IN ISSUE
In mid-2016 the Secretaries Group on Climate Risk (“Secretaries Group”) was established following a strategic discussion of the Secretary’s Board. The Secretaries Group comprised the Secretaries of Commonwealth government departments and agencies. The purpose of the Secretaries Group was to consider issues primarily related to public administration and in particular whether agencies were appropriately considering climate risk in fulfilling their functions and whether the Australian Public Service (“APS”) staff have the capability to assess and manage climate risk. The Secretaries Group ceased meeting in March 2018.
A group known as the Australian Government Disaster and Climate Resilience Reference Group (“Reference Group”) comprises a co-ordinating group of Deputy Secretaries from all Australian government departments and seven Commonwealth agencies and supersedes the Secretaries Group. The Reference Group is responsible for managing a whole-of-government approach to disaster and climate resilience, risk reduction and adaptation. The Reference Group provides a forum to progress such efforts.
At the time of the creation of the documents in issue, the Reference Group was co-chaired by the Department of the Environment and Energy and Attorney General’s Department. The Reference Group continues to operate.[2]
[2] The affidavit of Joanne Leigh Evans, Deputy Secretary of the Respondent, dated 19 August 2020, sets out the history of the Secretaries Group and the Reference Group.
Creation of documents
The documents in issue, except the Cabinet submission document, were prepared from the creation of fictitious, but science informed, scenarios concerning climate change which were used to stimulate innovative thinking concerning climate risk. The documents resulted from a process which commenced with the preparation of a scenario to provoke and stimulate conversation concerning possible policy issues relevant to participating agencies’ areas of portfolio responsibility.
There followed the presentation of the scenario to senior leaders from each participating agency in a face-to-face workshop setting. The participants were provided with the scenario without warning namely to produce an immediate response which laid bare areas of risk, opportunity, uncertainty, or confidence. The exercises were intended to provoke thought by the senior government officials.
Lastly, reflections on the responses from the senior leaders to the scenario were discussed and analysed.
Pilot scenario
On 30 August 2017 the Secretaries Group participated in a pilot climate risks scenario and then agreed to conduct four similar scenario exercises in the following 12 months, which were to be presented to senior representatives of stakeholder agencies.
Subsequent scenarios
Following the pilot scenario, two other meetings were held of the Secretaries Group. These meetings were convened on 1 March 2017 and on 2 August 2017.
APPLICANT’S CONTENTIONS
The applicant principally contends:
(a)Section 47C requires that to be exempt from production, it must be a document that contains “deliberative matter”: s 47C(1). However, the scenarios considered by the government do not comprise “opinion, advice or recommendation”. Rather, they are hypothetical models and as such do not constitute deliberative material;[3]
[3] ABC’s Statement of Facts, Issues and Contentions at [28]-[30]; Transcript of 29 July 2021 at 146.
(b)On the assumption that the scenarios are clearly deliberative, the Tribunal must consider whether the disclosure of the material would be contrary to the public interest, particularly as at the date of the Tribunal’s decision;
(c)The recognised need by the respondent to:
(i)promote the object of the FOI Act, especially “increasing public participation in Government processes, with a view to promoting better-informed decision-making”, and “increasing the scrutiny, discussion, comment and review of the Government’s activities (s 3 (2) with s 11B(3)(a);
(ii)inform the public debate on how the APS is engaging with the risks and opportunities that may emerge from a changing climate;
(iii)provide strong reasons in support of the release of the documents which should be given extraordinary weight by the Tribunal given the issues relate to climate change and the Australian public’s “right to be informed” about such issues.
(d)The documents contain information that is of serious concern to the Australian public and not just to individuals - the information will improve government accountability and the public interest in such release is “overwhelming”;
(e)The object of the FOI Act is to promote “scrutiny, discussion, comment and review”: release of the information will promote that objective. The public is concerned with climate change and its impacts on society, the economy and the environment, as is evidenced by surveys which show that 78% of Australians “are concerned about global warming”. Polling by The Australia Institute conducted in January 2020 found “climate change topped the list of threats to Australia’s vital interests in 2019…”. It is open for the Tribunal to find that climate change is a matter of great importance to all Australians and weigh its decision on access and the public interest accordingly.
RESPONDENT’S EVIDENCE
Affidavit of Joanne Leigh Evans dated 19 August 2020
The affidavit of Joanne Leigh Evans, the Deputy Secretary of the respondent, and co-chair of the Reference Group (which supported the Secretaries Group) stated the following consequences, inter alia, could occur if the material in the scenarios were revealed:
(a)the ability of similar types of scenarios to be used in connection with exploring climate issues in the future would be impeded as the scenarios are deliberately provocative and are framed at the extremity of any probable future occurrence;
(b)other agencies’ willingness to participate in future scenarios and to provide fully considered advice to government may be limited;
(c)the respondent would be required to engage in a process of informing the community concerning the purpose and true nature of the scenarios and workshops to avoid any negative public reaction due to the scenarios’ extreme and provocative nature;
(d)if released, they could have a negative impact on various industries and locations and lead to a negative impact upon investment in such industries;
(e)the framing of the scenario in such extreme terms allows reactions, tests candid thinking and stimulates policy deliberation.
Ms Evans also considered that the framing of the scenario in such extreme terms allowed reactions, tested candid thinking and stimulated policy deliberation.
Affidavit of Leonie Margaret McGregor dated 18 August 2020
Ms McGregor is the First Assistant Secretary, Cabinet Division of the Department of the Prime Minister and Cabinet (“PM&C”). Ms McGregor states the processes involved in the operation of the Cabinet process and the receipt of submissions to Cabinet.
Ms McGregor’s affidavit was provided to explain PM&C’s position in relation to document 9. That is, whether document 9 is of a kind referred to in section 34(3) of the FOI Act and information in support of the claim to support its exemption from production.
SUBMISSIONS OF THE APPLICANT
The applicant refers to the provisions of s 11B of the FOI Act, particularly drawing attention to subsection 5 which states:
In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
The Freedom of Information Guidelines (“the Guidelines”) contain provisions requiring a decision-maker to take into account various factors for and against disclosure (see 6.25). Clause 6.26 states:
In weighing the factors for and against release of a document, it is not sufficient simply to list the factors. The decision-maker statement of reasons must explain the relevance of the factors and the relative weights to those factors (s 26(1)(aa)).
Where a claim is made under section 47C of the FOI Act that documents are conditionally exempt because they contain deliberative matter, the Guidelines define such term in cl 6.52 thereof as follows:
Deliberative matter is content that is in the nature of, or relating to either:
- an opinion, advice or recommendation that has been obtained, prepared or recorded, or
- a consultation or deliberation that has taken place in the course of, or for the purposes of, a deliberative process of a government, an agency or Minister (s47 C (1))).
“Deliberative matter” is stated in cl 6.53 to exclude operational information or purely factual material (s 47C(2)). “Operational information” is defined in s 8A of the Act and is information that an agency must publish under the Information Publication Scheme.
Clause 6.55 of the Guidelines emphasises that the only consideration is whether the document includes content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision, regardless of any harm that may result from disclosure.
Clause 6.57 states, inter alia, that such conditional exemption has a potentially broad reach. It also states that the Information Commissioner expects that agencies will claim such exemption only in clearly applicable circumstances.
Further to the definition of “deliberative matter”, clause 6.63 of the Guidelines states:
“Deliberative matter” is a shorthand term for “opinion, advice and recommendation” and “consultation and deliberation” that is recorded or reflected in the document. There is no reason generally to limit the ordinary meaning given the words “opinion, advice or recommendation, consultation or deliberation”.
Clause 6.66 of the Guidelines provides examples of matter that is not deliberative matter where not already excluded as operational information, such as content that is merely descriptive; incidental administrative content; procedural or day-to-day content; decision or conclusion reached at the end of the deliberative process; matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.
APPLICANT’S ANCILLARY SUBMISSIONS
The applicant submits that whilst certain elements of debate may not help the respondent’s development of policy, debate is a fundamental right and crucial to any democracy. The agency can determine what debate might be useful for it, but it cannot decide what debate is useful for the Australian public.
The respondent refers to a “consequent breakdown in trust and ability of having working relationships with departments and ministers” if the information is released; however, the applicant submits that ministers would support the release of information and that it would not lead to the consequence claimed.
The applicant submits that climate change “may be the greatest challenge facing Australia and the Australian people”, and for this reason there is a high public interest in the release of information concerning climate change.
APPLICANT’S FURTHER REPLY SUBMISSIONS
The applicant:
(a)took issue with the assertion that the release of the documents would inhibit “normal and creative ideas” to be discussed in the scenario exercises; and
(b)submitted that:
(i)the claim of diverting agency resources away from progressing public ideas because of the increased need to respond to public commentary generated following disclosure of the material is anti-democratic and contrary to the objects of the FOI Act;
(ii)that there is no evidence of any possible loss of trust or “working relations” of the Ministers if the material were disclosed;
(iii)no reason is offered why the APS’s ability to debate the most effective means of developing and progressing policy proposals would be inhibited by the release of the information.
The applicant referred to the decisions referred to by the respondent, particularly Secretary, Department of Defence and Thomas (Freedom of Information) [2018] AATA 604. In that decision, the Tribunal relevantly held, in considering whether to grant access to documents, that release would on balance be contrary to the public interest as referred to in subsection 11A(5) of the FOI Act; that providing access the messages passed between the Defence Force Chief and Vice Chief would inhibit, not advance, their command; it would not advance the discharge of the vital public role performed by the respondent in provoking and promoting informed public debate concerning the wisdom of the policies of the Defence Force.
The applicant distinguished such decision from the present application on the basis that the documents in question were communications between two senior ADF officers; here, the subject matter is climate change scenarios, presented at meetings with different department representatives.
The applicant also refers to the decision in Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 and submits that such authority has been used frequently since its determination as an excuse for denying access to records of the Commonwealth. The applicant submits that it is unclear whether any Australian court has received evidence that disclosure of such records would inhibit full and frank advice by a public servant.
The Hearing
The hearing of this application extended over two days, namely on 28 and 29July 2021. During such hearing the applicant tendered its tender bundle. The first two pages of the tender bundle comprised an extract from the Parliamentary debates (Hansard). The issue arose whether the tender of such documents was prohibited by virtue of paragraph 15(3)(c) of the Parliamentary Privileges Act 1987 (Cth) (“the Parliamentary Privileges Act”).
Other records contained in tender bundle
Minister’s Concise Statement
One record tendered by the applicant comprised a document filed in the Federal Court of Australia, Victorian Registry in proceedings number VID 607 of 2020 between Anjali Sharma & Ors (applicants) and the Minister for the Environment (respondent). The Minister filed a Concise Statement in those proceedings.
The litigation concerned an application brought by a litigation guardian for an infant in a representative action on behalf of certain children resident in Australia against the respondent, seeking an injunction with respect to an application by Whitehaven Coal Ltd (‘Whitehaven’) concerning an extension to a proposed greenfield coal mine in northern New South Wales known as the Vickery Coal Project. On 12 February 2016 Whitehaven had referred such proposal to the respondent pursuant to section 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) for consideration as to whether it involved a controlled action under Part 3 of such Act.
In the Minister’s Concise Statement, the following is included:
“Some further warming of the Australian climate is unavoidable. Under all future emissions scenarios, it is very likely that:
(a)average temperatures will continue to increase and Australia will experience more heat extremes and fewer frosty days;
(b)extreme rainfall events will become more intense;
(c)southern and eastern Australia will experience more extreme fire-related weather;
(d)the time in drought will increase over southern Australia;
(e)sea levels will continue to rise throughout the 21st century, with increased frequency of storm surge events; and oceans around Australia will warm and become more acidic.
It is accepted that increases in temperature affect the environment, economy and society. Climate change exacerbates inherent risks in the Australian climate and introduces new risks. Heatwaves, droughts, bushfires, floods and tropical cyclones are all part of the Australian climate experience. Economic infrastructure in Australia’s cities and ports is vulnerable to sea-level rise and storm surges. Australia’s agricultural, mining and other industries are all vulnerable to increasing frequency of severe heat and intensity of drought, floods and storms. Terrestrial and marine ecosystems are facing serious threats from climate change, including extreme weather events, bushfires, ocean acidification and marine heatwaves.”
Presentation given by Ms Cheryl Durrant
Included in the applicant’s tender bundle is a copy of a paper extracted from the Australian Institute of Company Directors website entitled “Scenario planning 101 for directors”, dated 1 February 2021. It’s author is Ms Cheryl Durrant, a former long-standing employee of the Department of Defence. In her role as the Department’s former Director of Preparedness and Mobilisation, Ms Durrant led scenario planning activities in Defence and across government for the Secretaries Group on Climate Risk. Ms Durrant is a Fellow of the Institute for Integrated Economic Research Australia and a Climate Councillor.
In such presentation the author provokes thought for company directors, questioning whether the boards of corporations are prepared for “unexpected scenarios” and how such businesses may be made “shock-proof”. Having referred to unprecedented weather events and climate change issues, Ms Durrant states:
“Scenario planning is especially relevant now because it can potentially eliminate discontinuities, shocks and tipping points at the intersection of these transitions. It can enable business to expect the unexpected.”
Ms Durant continued under the heading “Prepare to be challenged”:
“One of my biggest failures as a scenario-planning lead was in developing scenarios for the interdepartmental federal body, the Secretaries Group on Climate Risk. During this process, I was unable to convince the senior executives sponsoring the activity to genuinely explore the existential risk of climate change. For various political reasons they wanted to play it safe; for them, some assumptions were too risky to challenge.
In the end, we came up with a scenario that was sufficiently divergent to start a useful conversation on some preselected topics, while not scaring the punters or upsetting the government of the day — in effect, a mildly inconvenient scenario. Needless to say, while some insights were generated, the process did not help expect the unexpected. To get the best from scenarios, directors must be prepared to have their own views and assumptions challenged and to be taken to places they do not expect to go.
In the military we always included at least two scenarios: the most likely and the most dangerous. I usually try to add a third — or most different — scenario to the mix as well. In my experience, the most dangerous and the most different are the hardest to develop, but they provide the deepest insight. Too often, dangerous ideas are watered down because they’re too confronting. Different ideas, on the other hand, need careful nurturing, as they often challenge an organisation’s dominant mindset and can be discarded too early in the process. Below I discuss how to design participation in a group process to minimise early rejection of difficult and dangerous scenarios.”
ORAL EVIDENCE
Ms Joanne Lee Evans was extensively cross-examined on her affidavit. Much of the examination related to the claimed exemption made under section 47C of the FOI Act, namely the conditional exemption which applies if disclosure under the FOI Act would disclose “deliberative material”.
Ms Evans unequivocally stated her concern that disclosure of the contents of the scenarios would inhibit the APS in its decision-making; that the issue of climate change was a highly contested public issue and that there needed to be the capacity for the APS to generate ideas knowing and trusting in the confidence that their deliberations would remain secret.
Ms Evans stated that Ms Durrant was not directly involved in the decision-making. Ms Durrant was not a Secretary of an agency: she was involved in the preparation of the scenarios prior to her retirement from the APS. However, Ms Evans acknowledged that Ms Durrant was a valuable contributor to the thinking that went into the planning of the scenarios. Approximately 10 persons attended the scenarios and it was understood that all discussions would be treated as confidential to ensure that participants could speak freely. The existence of the Secretaries Group became known through a Senate Estimates hearing or through another committee, although the detail of the scenarios were not disclosed: only their existence was disclosed.
Ms Evans stated that whilst Ms Durrant, who wrote her paper following her departure from the APS, stated that the scenarios were carried out on the understanding that they may become public, Ms Evans strongly disagreed with such proposition. Ms Evans stated that the scenarios were intended to be provocative, to promote discussion; to “stretch” reactions. Ms Evans stated that the scenarios were not developed with the intent that they should become public.
It was suggested to Ms Evans that since the preparation of the scenarios, there is now more “broadly based” scientific evidence concerning climate change. Ms Evans responded stating that it made no difference; there was scientific knowledge available which needed to be considered in the highly contested debate on climate change. Ms Evans restated her opinion is contained in the affidavit that the release of the scenarios could cause confusion and unnecessary debate.
CONSIDERATIONS
The Tribunal is required to consider the objects of the FOI Act, as well as its relevant statutory provisions. In particular, the Tribunal is mindful of the objects contained in section 3 of the FOI Act, including the object stated in subsection 3(2), namely to promote Australia’s representative democracy by contributing towards increasing public participation in government processes with a view to promoting better-informed decision-making (see paragraph 3(2)(a); and increasing scrutiny, discussion, comment and review of the government’s activities (see paragraph 3(2)(b)). To this end, it has considered each of the documents and the claims made by the respondent corresponding to each. It has examined the content of the documents in respect of the particular exemptions claimed over each. The Tribunal accepts the applicant’s submissions that climate change is a matter of significant public debate. Nevertheless, the Tribunal is required to apply the provisions of the FOI Act in considering the application currently before it.
The Tribunal is also aware of the applicant’s submission that the documents do not suggest that they are to be confidential. This assertion is to be balanced by the respondent’s submission that the oral evidence of Ms Evans establishes that the workshop contributions were to be treated as confidential especially in view of the sensitivity of the matters involved, the provocative nature of the scenarios and the seniority of the participants comprising the Secretaries Group.
WEIGHING THE PUBLIC INTEREST
Even if a document is found to be conditionally exempt, the FOI Act requires its disclosure unless it would, on balance, be contrary to the public interest: see subsection 11A(5) of the FOI Act and the Guidelines (Conditional Exemptions) at [6.27]:
“To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision-maker must analyse, in each case, where on balance the public interest lies based on the particular facts of the matter at the time the decision is made.”
In considering public interest factors, the Tribunal may have regard to factors in subsection 11B(3) (which favour disclosure) but must not have regard to the factors against disclosure referred to in subsection 11B(4). The respondent has identified both factors in favour and against disclosure.
The respondent maintained that there are factors in favour of disclosure of the documents, such as:
·the public interest in promoting the object of the FOI Act, particularly increasing public participation in government processes to promote “better informed decision-making” and increased scrutiny and comment and review of the government’s activities;[4] and
·informing debate on matters of public importance concerning the manner in which the APS is engaging with risks and opportunities arising from climate change and providing advice to the government.
[4] FOI Act ss 3(2) and 11B(3)(a).
The respondent contends that the public interest factors against disclosure are as follows together with the applicant’s responses to those contentions:
(a)Respondent: disclosure would inhibit the generation and expression of novel and creative ideas responding to the risks and uncertainties of climate change.
Applicant’s response: such a claim is imaginary and fanciful. The applicant questioned whether any public servants have failed to provide full and frank advice because of the possible consequences of information being released.
(b)Respondent: disclosure would potentially inhibit the range and quality of future policy options in the formulation of policies of potential future impacts.
Applicant’s response: such contention is profoundly anti-democratic: the FOI Act envisages increased debate and discussion which would occur if the information were released. The objects of the FOI Act cannot be used as a basis of public interest against release.
(c)Respondent: disclosure would divert agency resources away from progressing policy ideas and solutions, with loss of trust and working relations with ministers or other APS departments if writing generated specifically for the purpose of confidential scenarios analysis were to be released, interfering with the ability of the APS to effectively develop and progress policy proposals.
Applicant’s response: there is no evidence of occasions when a possible loss of “trust” or “working relations” with Ministers or other APS departments has occurred because of release of FOI Act related material and such claim should not be accepted. Further, there is no reason why the APS’s ability to debate the development of policy proposals would be inhibited. Logically the release of information would foster debate in the public arena and may provide further ways to develop policy proposals.
The applicant referred to the acute public interest and debate in climate change which is an issue of great public importance in Australia; the need for participation of the community in debates; and of the need for transparency.
The applicant submitted that the documents contain information that is of serious concern to the Australian public; that such information is not just of interest to the public but in the interest of the public, since they relate to matters of common concern and relevant to all Australians and future Australians.
The applicant acknowledged that climate change remains an issue of significant controversy, but maintained this is no reason to justify secrecy. The applicant referred to several surveys conducted showing the overwhelming interest of Australians in climate change including a Roy Morgan online survey; polling by The Australia Institute in January 2020 which found “climate change top the list of threats to Australia’s vital interest in 2019…”; and a Guardian Essential survey from November 2019 which found 61% of the sample believe that climate change is happening and was caused by human activity in supporting its claims.
The Tribunal will consider the public interest component in the assessment of each of the documents in light of the several authorities which have assisted in explaining the relevant sections of the FOI Act. Before it does so, it is required to address the issue of Parliamentary Privilege.
AN ISSUE OF PARLIAMENTARY PRIVILEGE
A threshold question arises concerning the admissibility of two documents sought to be relied upon by the applicant. The documents are described as:
“…respectively, an extract from a report written by a parliamentary committee in the course of an inquiry undertaken by that committee (see para d of the definition), and a written response to a question asked in the Parliament, furnished to the Parliament for the purpose of providing Parliament with an answer to the question (see para b or c of the definition).”
The respondent submits that the tender of each document is prohibited by the provisions of subsection 16(3) of the Parliamentary Privileges Act” which relevantly provides:
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concern proceedings in Parliament, by way of, or for the purpose of:
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
It is common ground that the documents are records of proceedings in Parliament for the purposes of subsection 16(2) of the Parliamentary Privileges Act.
Section 49 of the Australian Constitution provides:
“The powers, privileges, and immunities of the Senate and the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.”
This provision incorporates the common and statutory law of the United Kingdom as at 1901 and empowered the Commonwealth Parliament to change that law. The Parliamentary Privileges Act was enacted. Such Act ensures the freedom of Parliamentary debates and proceedings from question and impeachment. Its foundations are contained in article 9 of the English Bill of Rights of 1689 which declares:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
The Parliamentary Privileges Act was enacted following decisions of the Supreme Court of New South Wales which were considered to be unsatisfactory: see for example R v Murphy (1986) 5 NSWLR 18.
Parliamentary privilege: Applicant’s Submissions
The applicant essentially submitted that the Parliamentary Privileges Act does not prohibit the tender of the material, since the purpose of its tender is confined to establishing that something was said in Parliament, not for the purpose of criticising statements made in Parliament.
The Full Federal Court in British AmericanTobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123 determined that, in consequence of subsection 16(3) of the Parliamentary Privileges Act, statements made in Parliament could not be relied upon to determine whether legal professional privilege had been waived because such a conclusion relied on there being inconsistency in the two positions posited by the government. The relevant extract is as follows:
“[49] …Since inconsistency in maintaining the privilege is the point on which waiver turns, for the appellant to succeed it must persuade the Court that the conduct of the respondent in insisting on privilege is inconsistent with the publication of the Government Response by tabling it in the Senate. That is precisely the kind of reflection which may not be made upon the conduct of those whose published statements are within the protection of s 16 (3) of the PP Act.”
The Second Reading Speech of the Parliamentary Privileges Act was considered in Rann v Olsen (2000) 159 FLR 132 at [95] in which the Court observed that:
“…one of the intended effects of the Bill was to protect a witness before Parliament or a committee from cross examination about the truth of the evidence given by the witness, and from challenges to the credibility of the witness based upon that questioning.”
In British American Tobacco Australia (extracted from paragraph [167] of the decision under appeal in that matter) the Deputy President is quoted at paragraph [28], inter alia:
“I may have regard to proceedings of Parliament in order to ascertain historical facts or events. They include ascertaining what words were spoken and acts done. Regard may be had to those words and acts provided their only relevance is that they were spoken or done. If judgements must be made or conclusions drawn as to why they were said or done or the accuracy or appropriateness question, regard may not be had to them for to do so would be to draw inferences or conclusions from them.”
The applicant refers to the decision of the Full Federal Court in Leyonhjelm v Hanson-Young [2021] FCAFC 22 and to the dissenting decision of Rares J, particularly the sentence of his decision at [39] where his Honour said:
“Basically what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.”
Wigney J at [248] also acknowledged that subsection 16(3) of the Parliamentary Privileges Act did not impose a “blanket prohibition in respect of evidence and submissions concerning proceedings in Parliament”.
The authorities, including those referred to by Wigney J at [248], establish that the purpose of the proposed tender of the parliamentary material is pivotal. If the documents are to be tendered purely as a historical record, without comment, to show that something occurred in Parliament, then such use is permissible. However, if the Tribunal is then required to draw an inference or conclusion from the material, such purpose is prohibited under paragraph 16(3)(c) of the Parliamentary Privileges Act.
Accordingly, it is necessary to examine the purpose of the applicant. In this application, that purpose is to have the records tendered for the purpose of having the Tribunal making a finding that information has been disclosed to show that the claimed exemption of one extract in a document (paragraph 8(a) of document 9) cannot be sustained because the material has been disclosed in Parliament.
Accordingly, the applicant is not merely seeking to tender the documents for a historical fact. Had that been the case, then there is no objection under subsection 16(3). However, when the further step is then proposed, namely of using the document to establish another fact, namely that there has already been disclosure and that therefore the claim of exemption cannot be sustained, then such proposal becomes prohibited: the observations in British American Tobacco Australia at [48] and [49] are directly pertinent, particularly the last sentence at [48] in that case which states:
If the appellant seeks to show the inconsistency necessary to make good its waiver argument, it must be gored by section 16 (3) of the PP Act.
Further at [49] which states:
In our opinion, it is not possible to avoid the conclusion that the appellant does indeed seek to make use of the tabling of the Government Response to permit the drawing of an inference adverse to the government. Since inconsistency in maintaining the privilege is a point on which waiver turns, for the appellant to succeed it must persuade the Court that the conduct of the respondent in insisting upon the privilege is inconsistent with the publication of the Government Response by tabling it in the Senate. That is precisely the kind of reflection which may not be made upon the conduct of those whose publish statements are within the protection of s 16 (3) of the PP Act.
The observations in Leyonhjelm do not detract from this principle. Relevantly, Rares J at [52] said:
Here, the question of fact that the primary judge had to determine was whether, as a matter of history, Senator Hanson-Young said, or did not say, the words Senator Leyonhjelm attributed to her in the debate in the Senate. Evidence to establish or negate that objective question of fact was admissible. The purpose of the evidence was to determine whether something, in fact, formed part of a proceeding in Parliament. If, in fact, Senator Hanson-Young did not say in the Senate the words on which Senator Leyonhjelm relied, or anything to their effect, then, self-evidently, they could not form part of proceedings in Parliament. It follows that evidence to prove that fact must be admissible and will not contravene Art 9 or 16 (3).
Wigney J observed at [228] that Mr Leyonhjelm’s purpose in adducing the evidence about what was claimed to have been said in Parliament was to justify or establish the truth of the defamatory imputations. His Honour said:
If he was able to prove that Senator Hanson-Young had made a claim tantamount to a claim that all men are responsible for sexual assault, or that all men are rapists, that may in turn have enabled him to submit that the claim was absurd and that Senator Hanson- Young was a hypocrite and a misandrist. As the primary judge plainly recognised that further step may have amounted to an Infringement of s16 (3) of the Privileges Act. Such a submission may, for example, have amounted to “questioning” a statement made in Parliamentary proceedings contrary to s16 (3) (a), or questioning the “credibility” or “good faith” of Senator Hanson -Young contrary to s 16 (3) (b), or drawing or inviting the drawing of inferences or conclusions from a statement made in Parliamentary proceedings contrary to s16 (3) (c) of the Privileges Act.
Abraham J also concluded that it was essential to determine the purpose for which the evidence was led: that if the purpose was to establish whether something occurred as matter of fact, such was not a prohibited purpose. However, if it was sought to be tendered for another purpose, issues under subsection 16(3) would operate and the purpose would be prohibited: see paragraphs [381 – 383].
Finding on Parliamentary Privilege
The purpose of the applicant goes beyond the tendering of the documents solely for a historical purpose. The purpose extends to requiring the Tribunal to draw an inference and finding that the claimed exemption of paragraph 8(a) of document 9 cannot be sustained as it has been waived. It is this extra step which is impermissible and would contravene subsection 16(3) of the Parliamentary Privileges Act.
It follows that the tender of documents numbered 1 and 2 contained in Exhibit 1 to this hearing, namely the excerpts from the report and the question on notice, is prohibited. Accordingly, such documents are rejected.
STATUTORY CONSIDERATIONS
The applicant draws attention to the provisions of section 11B of the FOI Act which relevantly states in subparagraph (4):
the following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
…
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
The Tribunal is mindful of these provisions. It observes that this application does not concern access to particular documents where the author is of high seniority. Rather, it is a claim based on the fact that the deliberations of the participants in the scenarios were of a high level in the agencies which participated in the scenarios. Accordingly, this provision does not have direct application to the current application.
Public interest
Section 11B, whilst referring to public interest exemptions does not contain a definition of “public interest.” However, in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunaland Ors [2012] HCA 36; (2012) 246 CLR 379, the High Court considered this question. At [42] the High Court said:
“It is well-established that, when used in a statute, the expression “public interest” imports a discretionary value judgement to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”.”
In Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63, the Court said:
“The “public interest” is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interests of an individual or individuals.”
For other examples of “public interest”, see AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; DavidSyme & Co Ltd v General-Motors Holden’s Ltd [1984) 2 NSWLR 294; Wake v John Fairfax& Sons Ltd [1973] 1 NSWLR 43.
In addition to the definitions provided by the above authorities, further authorities have refined the circumstances where public interest might prevail. For example in Rovere and Secretary, Department of Education and Training [2015] AATA 462, it was observed by the Tribunal that in respect of pre-decisional communications, an objection to production on the basis of frankness and candour could not be a public interest factor against access: to justify such objection; rather, it must be related to something such as a particular practice, process, policy or program in government: see also “GI” and Department of the Prime Minister and Cabinet [2015] AICmr 51 [20].
Further, by way of refinement, in the consideration of whether a document is entitled to exemption under section 34 of the FOI Act, the fact that the document has been marked “Cabinet-in-Confidence” does not of itself characterise the document as Cabinet material subject to that exemption: Combined Pensioners and Superannuants Association of NSW Inc and Deputy Prime Minister and Treasurer [2013] AICmr 70 [17].
With regard to conditional exemptions, as provided by the Guidelines, Part 6 – Conditional Exemptions, section 6.87:
Even if Government has not announced a decision on the issue, disclosure of such a document [a document containing deliberative material] is less likely be contrary to the public interest if it is public knowledge that the Government considered or is considering the issue. The key public interest consideration in both situations is to assess whether disclosure would inhibit the Government’s future deliberation of the issue.
APPLICATION OF FOI ACT, GUIDELINES AND PRINCIPLES
Where page numbers are referred to below, those numbers are the pages of the documents as marked in the tendered exhibits.
First Category of Documents
Document 7C:
The Tribunal finds: Most of the redacted portions of the document directly relate to deliberative matter. Accordingly this document is conditionally exempt under section 47C(1).
Public Interest Considerations
As the Tribunal decides if the document is conditionally exempt, the public interest test in subsection 11A(5) must be met before the exemption can be claimed in respect of that part. The test is whether access to the conditionally exempt part of the document would, on balance, be contrary to the public interest.
In applying this test, I note the objects of the FOI act dealing with the importance of other factors listed in subsection 11B(3) of the FOI act, mainly whether access to the document would do any of the following:
(a)promote the objects of the act;
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his own personal information.
Having regard to the above, I am satisfied:
(a)that access to the document would promote the objects of the F0 I act;
(b)the character of the document is of public importance;
(c)no insight into public expenditure will be provided through examination of the documents; and
(d)access to a person’s own personal information is not relevant.
The Tribunal has considered the factors that weigh against the release of the conditionally exempt information and documents namely:
(a)The disclosure of the document could reasonably be expected to prejudice and impede the protection of the environment (6.22 (f));
(b)could reasonably be expected to prejudice an agency’s ability to obtain confidential information (6.22 (h)); and
(c)could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future.
The Tribunal has also had regard to section 11B(4) which sets out the factors which are irrelevant to the Tribunal’s decision which are:
(a)access to the document could result in embarrassment to the Commonwealth government, or cause a loss of confidence in the Commonwealth government;
(b)access to the document could result in any person misinterpreting misunderstanding the document;
(c)the author of the document was (or is) of high seniority the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate
The Tribunal has not taken any of those factors into account in arriving at its decision.
Upon balancing all the above relevant public interest considerations, I have concluded that the disclosure of the conditionally exempt information or documents is not in the public interest and therefore exempt from disclosure under the FOI act.
Paragraph 47C(2)(b) excludes “purely factual material” from the definition of deliberative matter. The Tribunal considers that the content (other than the portions to which access will be granted) do not contain factual material but rather projections, anticipated events and suggested conclusions.
The applicant questioned how the Secretaries Group constitutes any of the entities referred to in paragraphs 47C(1)(a), (b), or (c). The Tribunal considers that the Secretaries Group is intimately involved in the functions of the government and is accordingly an entity referred to in paragraph 47C(1)(c), although the nature of their work will serve the purposes of all sub-categories of subsection 47C(1). Accordingly this document is exempt as it comprises deliberative material.
Document 5d
This document has been part-released. The document is a record of the Secretaries Group on Climate Risk which, in its unredacted parts, shows that the Secretaries Group was considering whether the cabinet process was an appropriate vehicle or mechanism for taking forward the findings of the Secretaries Group. The redacted portion contains a particular recommendation to advance further consideration by the government. As such it is “deliberative material” as defined. Accordingly the document is conditionally exempt under 47C(1).
Public interest finding
A decision-maker, in this case the Tribunal, cannot withhold access merely because a document is conditionally exempt. The Tribunal must consider the public interest. The Tribunal has already stated the respondent’s contentions regarding the public interest factors for and against disclosure of the documents.
A factor in favour of disclosure of this document is that it would inform the public on a matter of public importance, namely how the APS is engaging with the risks and opportunities that may emerge from a changing climate. The factors against disclosure that could apply to this document, as contended by the respondent in a general sense, relates to the recommendations to Cabinet, and the proposed process by which the recommendations of the Secretaries Group could be advanced.
The Tribunal finds that whilst the public have a general interest in disclosure, the greater public interest in non-disclosure of recommendations to Cabinet overrides the general interest. That is, it would be contrary to the public interest to be disclosed, as referred to in Guideline 6.27.
Document 6a
This document has been part-released. The document is summary of a meeting of the Secretaries Group on Climate Risk. The redacted portion contains a description of a process being undertaken to advance consideration by the government of the advice and work of the Secretaries Group. As such it is “deliberative material” as defined. Accordingly the document is exempt under 47C(1).
Public interest finding
As noted, the Tribunal must consider the public interest. The same factors as considered with respect to document 5d apply in this instance and on balance, the public interest requires that the redacted portion of this document be released, except for the last sentence after the word “2018”. The last sentence expresses a particular opinion of the Secretaries Group which should not be released. If revealed, it may inhibit the APS’s ability to develop and progress policy proposals.
Document 6b
This document has been exempted in full. The document is a record of the discussion of the Secretaries Group which is a discussion of the pilot scenario exercise. The redacted portion contains a description of a process being undertaken to advance consideration by the government of the advice and work of the Secretaries Group. As such it is “deliberative material” as defined. Accordingly the document is conditionally exempt under 47C(1).
Public interest finding
If the nature of commentary that is contained in the redacted material were released it may affect the willingness of participants to express their concepts and suggestions of novel and creative ideas and inhibit the ability of the APS to develop the most effective climate policy.
On balance, the public interest requires that the document remain fully exempt.
Document 7b
Most of this document has been part released. The document is an agenda paper for a meeting of the Secretaries Group.
The first redacted portions of this document comprises specific proposals for courses of action that the Group was recommending be undertaken at the time.
The redacted portions satisfy the definition of “deliberative material” and is therefore exempt under section 47C(1).
Public interest finding
The submissions of the respondent suggested that the release of portions of the documents may prejudice the ability of the government or Ministers to consider the “development of options and commentary on those options” and to “select the most appropriate response to the particular risks relating to climate change” which are dealt with in those options. The Tribunal concurs with the respondent’s submissions noting that the redacted portions contain two specific policy proposals to government for their deliberation. Paragraph 6.87 of the FOI Guidelines as pointed to by the applicant’s counsel does not have application in view of the fact that the specific proposals referred to in the redacted portions are unknown to the public.
On balance, the public interest requires that the redacted portions remain exempt.
Document 7c
This document was part released. The redacted portions comprise deliberative matter concerning information which reveals the subject matter of the scenarios which includes both the details of the scenarios and details of responses of participants in the scenarios, and as such are conditionally exempt under s 47C(1).
Public interest finding
The release of the redacted portions would have the potential to inhibit the debates and the discussions of the Secretaries Group. In consequence, the level of debate would not be optimised thereby prejudicing the APS’s formulation of suitable policies for Australia’s climate change proposals. Accordingly, it is not in the public interest that the documents be disclosed, and it follows that the document is exempt from production.
Document 7e
This document was considered wholly exempt. The document comprises the “material briefing pack” for the scenario that followed the pilot scenario. The document has been created as part of the deliberative process and is exempt under section 47C(1).
Public interest finding
For the same reason as referred to in relation to document 7c above, it is not in the public interest that the documents should be disclosed.
Document 7f
This document comprises a list of the subject matters for consideration by the participants in the scenario and detailed impacts for consideration within each of the subject matters. The document has been created as part of the “deliberative process” on climate change, as considered in Guideline 6.59 and the subject matters for discussions as part of that process. On this ground the Tribunal finds that the document is conditionally exempt under section 47C(1).
Public interest finding
For the same reason as referred to in relation to document 7c above, it is not in the public interest that the documents should be disclosed.
Document 7g
This document comprises in tabular form a record of participant’s deliberations. The document was clearly prepared for the deliberative process, and is exempt under s 42C(1).
Public interest finding
For the same reason as referred to in relation to document 7c above, it is not in the public interest that the documents should be disclosed.
Document 8
This document relates to a scenario meeting. The redacted portions records the activities and proposals and is deliberative material which is conditionally exempt under section 47C(1).
Public interest finding
For the same reason as referred to in relation to document 7c above, it is not in the public interest that the documents should be disclosed.
Document 9
This document is a brief to the Minister for the Environment and Energy. The redacted information on the first page of the document indicates a recommendation to the Minister with respect to further advice from the Secretaries Group. It is clearly deliberative.
Paragraph 4 by itself states a fact. This paragraph is not exempt from production under section 47C(1), because of section 47C (2) (b).
As to paragraph 4(b) the redacted portion is part of the deliberative process.
Paragraphs 5 and 8 and the redaction at the conclusion of the document comprise deliberative material.
Cabinet exemption
PM&C are concerned in this matter. The Cabinet Division maintains the collection of Cabinet documents. The respondent has described the process of receiving Cabinet submissions for consideration which is the key mechanism for enabling decision-making by Cabinet. Submissions are received from committees which have a supporting Minister, usually the Cabinet Minister with a portfolio responsibility for the primary subject matter of the submission. Ministers bringing forward submissions are responsible for ensuring that the consultation necessary to enable Cabinet to make a fully informed decision occurs at Ministerial and official levels before the matter is submitted to Cabinet and, as such, it enables the Cabinet or its committees to be in the best position to make policy decisions based upon agreed facts. Consultation on Cabinet submissions requires close collaboration between Ministers and Departments to finalise the detail, scope and costing of submissions. Often much work precedes the presentation of the final submission such as meetings, preparation of drafts, email exchanges and correspondence.
It is a well-established principle of responsible government that the deliberations of Cabinet are confidential, as is recognised by the FOI Act, the Archives Act 1983 and by section 130 of the Evidence Act 1995 which protects Cabinet and Cabinet related information.
Ms McGregor deposed that in her view the release of Cabinet or Cabinet related documents would interfere with the effective operation of Cabinet and that confidentiality requires protection of formal Cabinet documents and other documents which expressly or implicitly reveal Cabinet’s confidential deliberations. Such a release could have the potential to damage the public interest.
Document 9 is not itself a Cabinet submission but a paragraph contained in the submission shows that Cabinet has deliberated on the specific matters referred to in that paragraph and disclosure would reveal the substance of the deliberations of Cabinet.
Public interest finding
The public interest is not relevant to paragraph 4 of Document 9 which the Tribunal has found is not deliberative material and so not exempt from production. The public interest is also not relevant to the portion which is wholly exempt under s 34(3).
According whilst paragraph 4 is not exempt from production, the residue of the redacted material, the public interest weighs against disclosure for the reasons identified in document 7c.
Document 9(a)
This document is an attachment to document 9. It is deliberative matter in the same sense that document 9 is deliberative matter and the same public interest considerations which weigh against disclosure apply.
Document 12
The redacted portion contains material which is in the nature of opinions of the Secretaries Board and reveals the discussions for developing such opinions to the government. As such it is “deliberative material” as defined. Accordingly the document is exempt under 47C(1).
Public interest finding
The public interest weighs against disclosure for the reasons identified in document 7c.
CONCLUSION
The Tribunal makes the following findings:
c)in respect of documents 5d, 6a, 6b, 7b, 7c, 7e, 7f, 7g, 8, 9a and 12; the Tribunal affirms the reviewable decisions;
d)in respect of document 9; for the reasons provided above, the Tribunal finds that paragraph 4 document 9 is not exempt under section 47C. As such, the Tribunal varies the decision under review so that the applicant is to be provided access to paragraph 4 of document 9.
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
.............................[sgd]...........................................
Associate
Dated: 7 March 2022
Date(s) of hearing: 12 May 2021, 28 & 29 July 2021 Date final submissions received: 6 August 2021 Counsel for the Applicant: Ms I. King Solicitors for the Applicant: Ms M. Tavares, Australian Broadcasting Corporation
Counsel for the Respondent: Mr J. Davidson Solicitors for the Respondent: Ms C. Bennett, Australian Government Solicitor
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