Australian Broadcasting Corporation and Secretary, Department of Industry, Science, Energy and Resources (Freedom of information)

This matter concerned an application by the Australian Broadcasting Corporation (ABC) for access to documents held by the Secretary, Department of Industry, Science, Energy and Resources, under the *Freedom of Information Act 1982* (Cth). The Administrative Appeals Tribunal (AAT) was required to determine whether certain documents, identified as containing "deliberative material" or being "cabinet documents," were exempt from disclosure, and if so, whether disclosure was nevertheless in the public interest. The ABC contended that the material in question, comprising hypothetical scenarios, did not constitute "opinion, advice or recommendation" as required for exemption under s 47C, and that even if it did, the public interest favoured disclosure due to the importance of climate change and the objects of the FOI Act.

The Tribunal was tasked with determining the scope of "deliberative matter" under s 47C of the FOI Act and assessing whether the hypothetical scenarios fell within this definition. Crucially, the Tribunal had to weigh the public interest in disclosure against the potential harm identified by the respondent, considering factors favouring disclosure under s 11B(3) of the Act. The respondent argued that disclosure could impede future scenario analysis, limit inter-agency cooperation, necessitate extensive public explanation, negatively impact industries and investment, and cause confusion and unnecessary debate due to the provocative nature of the scenarios.

In its reasoning, the Tribunal acknowledged the significant public debate surrounding climate change and the applicant's submission that the documents did not suggest confidentiality. However, it balanced this against the respondent's evidence that the workshop contributions were intended to be confidential due to the sensitivity and provocative nature of the matters discussed. The Tribunal applied the principles of s 11A(5) of the FOI Act, requiring disclosure unless the public interest in withholding outweighed the public interest in disclosure, and considered the specific facts at the time of the decision. Ultimately, the Tribunal found that for most of the documents, the public interest weighed against disclosure.

However, the Tribunal varied the decision under review in relation to one document. It found that paragraph 4 of document 9 was not exempt under s 47C and ordered that the applicant be provided access to that specific paragraph. For the remaining documents in dispute, the Tribunal affirmed the reviewable decisions, meaning they were to remain exempt from disclosure.