Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of Information) - [2024] AATA 2824

Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of Information) [2024] AATA 2824 (7 August 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/4161
Re:Australian Conservation Foundation Incorporated
APPLICANT

AndSecretary, Department of Climate Change, Energy, the Environment and Water
FIRST RESPONDENT

AndWalker Group Holdings Pty Ltd
SECOND RESPONDENT

DECISION
Tribunal:Mr A. Maryniak KC, Member
Date:7 August 2024
Place:Melbourne

The Tribunal sets aside the decision under review insofar as it relates to the Documents in Issue and in substitution decides that the Documents in Issue are not exempt from disclosure under ss 47(1)(b) and 47G of the Freedom of Information Act 1982 (Cth).
................................[sgd]........................................
Mr A. Maryniak KC, Member
Catchwords
FREEDOM OF INFORMATION – request for access to documents relating to the Toondah Harbour Project – where documents created during the statutory consultation process under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – Freedom of Information Act 1982 (Cth) s 47(1)(b) exemption – s 47G conditional exemption – exemptions not established – decision set aside and substituted.
Legislation
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Freedom of Information Act 1982 (Cth)
Cases
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 35
Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Walker Group Holdings Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2024] FCA 504
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines (compilation July 2024)
REASONS FOR DECISION
Mr A. Maryniak KC, Member
7 August 2024

The Applicant (‘ACF’) seeks review of a decision of a delegate of the First Respondent (‘the Department’) dated 28 May 2019 refusing access under the Freedom of Information Act 1982 (Cth) (the ‘Act’) to now relevantly documents numbered 3, 10, 11 (in part), 22 (in part) and 44(b), save for the content referred to in paragraph 12 below (together, ‘Documents in Issue’).[1]
[1] See ‘Schedule of Documents in Dispute’ (JB4, 46-7).
The Documents in Issue relate to communications between the Department and the Second Respondent (‘Walker’), a developer, regarding the potential development of apartment buildings at Toondah Harbour in Morton Bay Queensland. Toondah Harbour is the location of the North Stradbroke Island Marine Transport Facility, the main point of departure and arrival for water taxis, passenger ferries and vehicular ferries between the Australian mainland and North Stradbroke Island.[2] The site includes wetlands listed pursuant to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (entered into force 21 December 1975) (‘Ramsar Convention’).[3]
[2] See ‘Statement of P Saba’ (JB19, 172) and ‘Exhibit PS-1 to Statement of P Saba’ (JB20, 181).
[3] Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water [2023] FCA 1005, [2] (Bromberg J) (‘ACF Federal Court Decision’).
On 14 December 2021 the Tribunal had affirmed the delegate’s decision in respect of a wider set of documents, which included the Documents in Issue, and on 10 January 2022 ACF appealed the Tribunal’s decision.
On 24 August 2023 the Federal Court set aside the Tribunal’s decision and remitted the application to the Tribunal (‘ACF Federal Court Decision’). On 30 January 2024 Walker applied to join the application and on 29 February 2024 Walker was joined.[4]
⁴ Tribunal Order pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) dated 29 February 2024, as varied by the Tribunal’s Order dated 15 March 2024 (together, ‘Joinder Decision’).
The Department no longer considers the Documents in Issue to be sensitive, and considers it appropriate that they be released.[5] The Department no longer makes any claims pursuant to, inter alia, ss 45 and 47E(d) of the Act, which were the subject of consideration in the Tribunal’s original review and the subsequent appeal.
[5] First Respondent’s Statement of Facts, Issues and Contentions dated 29 January 2024, [5]-[6]; First Respondent’s Submissions dated 28 March 2024 (‘FRS'), [4].
In this review application, although remitted, Walker claims alternate exemptions pursuant to ss 47(1)(b) and 47G of the Act, in respect of the Documents in Issue.
BACKGROUND
The ACF Federal Court Decision sets out the following by way of background, which for convenience is repeated below:
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
3.The proposed Toondah Harbour Project engaged Ch 4 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act provides for a two-tiered assessment system for proposals which potentially have environmental impacts, such as those with a potential impact on wetlands listed under the Ramsar Convention. The ‘environmental assessments and approvals process’ under Ch 4 is summarised by Allsop CJ in Minister for the Environment v Sharma (2022) 291 FCR 311 at [64]-[80].
4.Broadly stated, at the first stage under Ch 4, the Minister must determine whether the proposed action is a ‘controlled action’ and therefore needs environmental approval (Div 2 of Pt 7). Section 68 provides that ‘[a] person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister’ under the EPBC Act (Minister) to determine whether they are ‘controlled actions’. The Minister must then decide under s 75 whether the proposed action is a ‘controlled action’. I will refer to this process as the formal ‘referral process’ under the EPBC Act.
5.Once a referral has been made, the Minister must publish that referral on the internet and invite comment from the public and relevant State or Territory Ministers: s 74(2)-(3). There are also rigorous disclosure requirements with respect to referrals provided for by the Environment Protection and Biodiversity Regulations 2000 (Cth).
6.A proposal designated to be a ‘controlled action’ under Ch 4 requires further rigorous assessment as set out in Pt 8 of the EPBC Act. A proposal that is not so designated does not require further assessment and may proceed without being sanctioned under the EPBC Act.
The Toondah Harbour Project and the ‘pre-referral process’
7.The Walker Group submitted three referrals to the Minister under s 68 of the EPBC Act for the Toondah Harbour Project between November 2015 and June 2018.
8.The significance of the referrals for the issues raised in this appeal arises largely from the fact that the referrals were dealt with through a particular departmental process. The Department has developed a practice of holding private meetings with potential proponents (referring parties) in which proposals are discussed prior to those proposals being formally submitted as referrals under the EPBC Act (pre-referral process). Evidence was given about that process in the affidavit and oral evidence provided to the Tribunal by Mr Andrew McNee, Assistant Secretary of the Department’s Environment Assessments (Queensland) and Sea Dumping Branch. The Secretary contended that these pre-referral discussions allow referring parties to provide an overview of their proposed action and provide an opportunity for the Department to explain the referral process and raise any potential concerns with a referring party’s proposal.
9.The pre-referral process is neither referred to, nor expressly sanctioned by, the EPBC Act. It is described by Mr McNee as a confidential process that is treated by the Department as not subject to any disclosure requirements provided for by the EPBC Act.[6]
[6] ACF Federal Court Decision, [3]-[9].
The Documents in Issue were created during a statutory consultation process pursuant to the EPBC Act. The Federal Court has recently considered this, and the Tribunal sets out the Court’s brief overview of the operation of the EPBC Act below:
14.The EPBC Act provides a statutory framework for regulating activities that have or are likely to have significant impacts upon the environment: Australian Conservation Foundation Inc v Minister for Environment (2016) 251 FCR 308; [2016] FCA 1042 at [6]. The EPBC Act provides that certain actions are unlawful if they occur without approval: ss 66; 67; 67A of the EPBC Act. Those actions are outlined in Part 3 of the EPBC Act and relevantly include actions that have or are likely to have a significant impact on the ecological character of a declared Ramsar wetland (s 16(1)) or actions that have or are likely to have a significant impact on a listed threatened species (s 18).
15.The Minister may determine that an action requires approval if he or she considers that a provision contained in Part 3 (the controlling provision), prohibits the action (referred to as a controlled action): s 67 of the EPBC Act. Section 68 of the EPBC Act allows a person who proposes to take action who thinks it may be a controlled action to make a referral to the Minister. Once a referral is made, the Minister must publish the referral on the internet and invite comment from the public and relevant Ministers: s 74(2)-(3) of the EPBC Act.
16.If the Minister determines that the action is a controlled action, the Minister is then obliged under s 75 of the EPBC Act to consider whether or not approval for the action is required, and must take into account all adverse impacts the action has or will likely have on the matter protected by the controlling provision: ss 75, 82(1) of the EPBC Act; Minister for the Environment v Sharma (2022) 400 ALR 203; [2022] FCAFC 35 at [65]- [71]. The Minister may decide that the relevant impacts of the action must be assessed by way of an Environmental Impact Statement (EIS): ss 87, 101 of the EPBC Act.
17.If the Minister decides that approval is required, ss 131, 131AA and 131A of the EPBC Act outline a consultation process before the Minister makes his or her decision whether or not to approve the taking of the action. That process includes inviting comments from other Ministers, the person proposing the action and the public: Sharma at [76]. In deciding whether or not to approve the action and what conditions to attach to the approval, the Minister must take into account any assessment reports, environmental impact statements and any relevant comments given to the Minister: s 136 of the EPBC Act; Sharma at [79].[7]
[7] Walker Group Holdings Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2024] FCA 504, [14]-[17].
The Tribunal notes that on 9 April 2024 the Minister for the Department issued a ‘proposed’ decision refusing to grant approval for the project and on or about 18 April 2024 Walker withdrew its application to develop the project.[8]
[8] ‘Federal government tentatively refuses controversial Toondah Harbour development on Queensland’s Moreton Bay’, ABC News (Web Page) < ‘Company behind $1.4b Toondah Harbour development withdraws application after Tanya Plibersek’s tentative refusal’, ABC News (Web Page) <
CONSIDERATION
The Tribunal has had regard to material comprising the Joint Bundle (‘JB’), including the affidavit of Andrew McNee sworn 11 December 2020 (‘McNee affidavit’)[9] – which the Department no longer relies upon for the purposes of this review, however, Walker does – and the statement of Peter Joseph Saba signed 12 March 2024.[10] The Tribunal has also had regard to the confidential affidavit of Chantal Louise Tipene sworn 28 March 2024 (‘Tipene affidavit’) relied upon by the Department. The Tribunal has also considered the written and oral submissions from the parties.
[9] JB11, 100-8.
[10] Statement of P Saba (JB19, 171-8); Exhibit PS-1 to Statement of P Saba (JB20, 179-291).
Applicant’s submissions
ACF submits that the Act creates a right of access to government held documents and Walker must establish that any relevant exemptions apply for access to be denied, and contends that Walker has not established this based upon the material before the Tribunal.[11] Further, ACF also submits that the issue of the confidentiality of the referral process as referenced by Mr Saba is essentially more of a distraction and is not a foundation for the grounds of non-disclosure at issue before the Tribunal.[12]
[11] Applicant Statement of Facts Issues and Contentions dated 16 April 2024 (‘ASFIC’), [22]-[23].
[12] See, for example, Transcript of Proceedings 22 April 2024, p 14, lines [1]-[7].
ACF does not seek review of exemptions in respect of content which constitutes legal professional privileged information (within Document 11), nor personal information (per s 47F of the Act), nor information outside the scope of the request (per s 22 of the Act) within the Documents in Issue.[13]
[13] JB10, 99.
First Respondent’s submissions
The Department ‘no longer considers the documents in dispute are sensitive and considers they are appropriate to be released’, subject to the removal of the particular content not pursued by ACF as outlined above.[14] Further, the Department does not rely upon the McNee affidavit.[15]
[14] FRS (n 5), [4].
[15] Transcript of Proceedings 22 April 2024, p 46, line [1].
Second Respondent’s submissions
Walker submits that the Documents in Issue are exempt under s 47(1)(b) of the Act because each contains confidential business information having a commercial value to Walker that could reasonably be expected to be destroyed or diminished if the information were disclosed.[16]
[16] Walker’s Statement of Facts Issues and Contentions dated 14 March 2024 (‘WSFIC’), [66].
Alternatively, Walker submits that each ‘document is conditionally exempt under s 47G(1)(a) of the Act because disclosure of those documents could reasonably be expected unreasonably to affect Walker adversely in respect of its lawful business, commercial or financial affairs.’[17]
[17] Ibid [69].
Further, or in the alternative, Walker contends that each ‘document is conditionally exempt under s 47G(1)(b) because disclosure of the documents could reasonably be expected to prejudice the future supply of information to the Commonwealth’ or its agencies.[18]
[18] Ibid [74].
In the event that any document is conditionally exempt under s 47G(1), Walker contends that ‘disclosure of those documents would, on balance, be contrary to the public interest’.[19]
Relevant provisions of the Freedom of Information Act
[19] Ibid [79].
The objects of the Act are pro-disclosure in nature, 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 to access to documents.’[20] The Parliament intends by such objects ‘to promote Australia’s representative democracy’ by ‘(a) ‘increasing public participation in Government processes, with a view to promoting better-informed decision-making;’ and ‘(b) increasing scrutiny, discussion, comment and review of the Government’s activities.’[21]
[20] Freedom of Information Act 1982 (Cth) (the ‘Act’) s 3(1).
[21] Ibid s 3(2).
It is also intended ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.’[22]
[22] Ibid s 3(4).
A legally enforceable right for members of the public to obtain access to government documents other than ‘exempt’ documents is provided pursuant to s 11 of the Act.
In addition to the relevant sections of the Act, the Tribunal must also have regard to the Guidelines published by the Information Commissioner for the purposes of the Act (‘Guidelines’) when exercising any power or function under the Act.[23] The Guidelines should not constrain the proper construction of the relevant sections of the Act.
[23] The Act (n 20) s 93A; Walker Group Holdings Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2024] FCA 504, [10].
Section 47 of the Act provides:
(1)A document is an exempt document if its disclosure under this Act would disclose:
(a)trade secrets; or
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed…
Guidelines published pursuant to s 93A of the Act state, relevantly with respect to s 47 of the Act, the following:
Information having a commercial value (s 47(1)(b))
…
5.235 It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding in a particular case whether information has commercial value:
·whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
·whether the information confers a competitive advantage on the agency or person to whom it relates — for example, if it lowers the cost of production or allows access to markets not available to competitors
·whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that information
·whether the information is still current or out of date (out of date information may no longer have any value)
·whether disclosing the information would reduce the value of a business operation or commercial activity — reflected, perhaps, in a lower share price.
…
5.237 The second requirement of s 47(1)(b) — that it could reasonably be expected
that disclosure of the information would destroy or diminish its value — must be
established separately by satisfactory evidence. It should not be assumed that
confidential commercial information will necessarily lose some of its value if it
becomes more widely known. Nor is it sufficient to establish that an agency or
person would be adversely affected by disclosure; for example, by encountering
criticism or embarrassment. It must be established that the disclosure would destroy
[24] Guidelines, ‘Part 5 – Exemptions’, 48-9 (Footnotes omitted).
or diminish the commercial value of the information. [24]
Section 47G provides a conditional exemption for business information as follows:
47G Public Interest conditional exemptions—business
(1)A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a)would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b)could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2)Subsection (1) does not apply to trade secrets or other information to which section 47 applies…

The Guidelines state the following regarding s 47G:
Elements of the exemption
6.181 The operation of the business information exemption depends on the effect of disclosure rather than the precise nature of the information itself. Nevertheless, the
[25] Ibid, ‘Part 6 – Conditional Exemptions’, 37.
information in question must have some relevance to a person in respect of his or her business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking (s 47G(1)(a)).[25]
As s 47G is a conditional exemption, the public interest test is also relevant. By reason of s 11A(5) of the Act, access must be given to a document if it is conditionally exempt unless in the circumstances access to the document at that time would, on balance, be contrary to the public interest. Section 11B of the Act sets out the public interest test as follows:
11B Public interest exemptions—factors
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).
(2)This section does not limit 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.
Relevantly, the Guidelines state as follows:
The public interest test
…
6.223            To decide whether giving access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5), the factors set out in s 11B must be considered. Some of these factors must be taken into account (where relevant) and some factors must not be taken into account. Decision makers are required to balance the factors for and against disclosure and decide whether it would be contrary to the public interest to give access to the requested document(s).
6.224            The public interest test is considered to be:
·    something that is of serious concern or benefit to the public, not merely of individual interest
·    not something of interest to the public, but in the interest of the public9
·    not a static concept, where it lies in a particular matter will often depend on a balancing of interests
·    necessarily broad and non-specific, and
·    related to matters of common concern or relevance to all members of the public, or a substantial section of the public.
6.225            It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.[26]
[26] Ibid, ‘Part 6 – Conditional Exemptions’, 44 (Footnotes omitted).
The ACF Federal Court Decision, although dealing with alternate exemption grounds, does have some relevance in respect of the Application on remittal. The Court noted that the Documents in Issue ‘contain information, often expressed in standalone dot points in an email or memo, that only relate to the Department’s operations and which could not be considered the information of, let alone the confidential information of, the Walker Group’.[27] Confidentiality (being ‘an agreement between government and private parties to keep their dealings confidential’ or ‘some agreed condition/flavour of confidentiality’) does not of itself mean documents should not be disclosed, by reason of the Act.[28] Whilst the Tribunal accepts that the Documents in Issue were initially created within a confidential context, which is considered in light of the observations in Searle adopted in the ACF Federal Court Decision,[29] much time has passed, and the Department no longer considers that they are sensitive and that it is appropriate for them to be released.
[27] ACF Federal Court Decision, [57].
[28] Ibid [62]-[63], citing Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, 127 (Davies, Wilcox and Einfield JJ).
[29] Ibid [62].
Further, the exemptions within the Act are ‘to be interpreted according to the words used, bearing in mind the stated object of the Act’.[30]
[30] Ibid [64], citing News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64, 66 (Bowen CJ and Fisher J).
‘Would or could reasonably be expected to’
In the context of s 47E(d) the Court discussed the expression ‘would, or could reasonably to expected to…’[31] It conveys something more than an outcome that ‘could’ be expected.[32] The Court stated, ‘it is undesirable to consider …in terms of probabilities or possibilities or the like’. The relevant enquiry is ‘whether the expectation claimed was reasonably based’[33] and ‘that it was clear that a reasonable expectation of an event occurring required more than a possibility, risk or chance of the event occurring’.[34] The Court at [71] also adopted the approach taken by Sheppard J in Attorney-General’s Department v Cockcroft [1986] FCA 35,[35] set out below:
…Relevantly, Sheppard J said at 195 that it was clear that a reasonable expectation of an event occurring ‘required more than a possibility, risk or chance of the event occurring’. Furthermore, his Honour said this at 195-196:
The words are expressed in the passive voice – ‘could reasonably be expected’. What is required is that the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
[31] Ibid [48]-[78].
[32] Ibid [65].
[33] Ibid [69], citing Attorney-General’s Department v Cockcroft (1986) 10 FCR 180, 190 (Bowen CJ and Beaumont J).
[34] Ibid [71].
[35] (1986) 10 FCR 180, 195-6.
Hence, material before the Tribunal must provide a reasonable basis for any relevant expectation and ‘facts must support a reasonable basis for the expectation in question, rather than merely a possibility of the adverse effect’.[36]
[36] ACF Federal Court Decision, [78].
Consistent with the Objects and s 11 of the Act as discussed above, a presumption toward a right of access is complemented by putting the onus upon the party seeking to make out any exemptions to disclosure. Such moving party has the onus of establishing that (a) a decision refusing to give access to the document is justified; or (b) the Tribunal should give a decision adverse to the person who made the relevant request.[37] ACF and the Department essentially agreed that Walker carried the onus to establish any claimed exemptions. However, Walker submitted that it is ‘not clear where the onus lies’.[38] The Tribunal is of the view that the fact that Walker is, inter alia, availing itself of its entitlement under s 27(4) to a reasonable opportunity to make submissions pursuant to the Joinder Decision, does not displace the onus it has generally consistent with claiming disclosure exemptions in respect of the Documents in Issue. In any event and in light of the position taken by the remaining parties, Walker must ultimately satisfy the Tribunal that any exemptions preventing disclosure are validly claimed.
[37] The Act (n 20) s 61(2).
[38] Transcript of Proceedings 22 April 2024, p 51, lines [16]-[29].
It is not in dispute that the Documents in Issue are the product of discussions which were confidential between the Respondents, however, since at least 28 March 2024, the Department no longer considered the Documents in Issue to be sensitive and instead considered it appropriate that they be released.[39] The state of the evidence before the Tribunal relevant to identifying what information within the Documents in Issue is in the public domain is not particularly satisfactory, despite the Respondents being on notice of its importance.[40] During the hearing the Tribunal had contemplated requesting the Respondents to take further steps to clarify this aspect by preparing a table, however, the Tribunal was not convinced that such a further step would ultimately have resolved the Tribunal’s concerns as it seemed evident that the Respondents would remain at issue on this point.[41]
[39]          FRS (n 5), [4].
[40]          Transcript of Interlocutory Proceedings 15 March 2024, p 7, line [22] to p 8, line [12].
[41]          Transcript of Proceedings 22 April 2024, p 6, line [40] to p 7, line [1], p 84, lines [30]-[34].
The Department relies upon the Tipene affidavit as to what material is in the public domain.[42] Ms Tipene states ‘some’ of the content of the Documents in Issue is within ‘publicly available material’ and as such there is an overlap.[43] Walker is critical of this evidence,[44] yet against this it relies simply on Mr Saba’s statement that to the best of his knowledge ‘none of the access documents are in the public domain’.[45] Whilst the Tribunal accepts that the actual Documents in Issue or copies thereof are not in the public domain, Walker declined to go further to specifically challenge Ms Tipene’s evidence which identifies parts of the content of the Documents in Issue which are in the public domain, either by cross-examination or attempting to rely upon further evidence. In such circumstances the Tribunal accepts that ‘some’ of the content of the Documents in Issue is in the public domain. As a consequence, the Tribunal can do no more than conclude that ‘some’ of the information within the Documents in Issue is in the public domain.
[42]          FRS (n 5), [5].
[43]          Tipene Affidavit, [6].
[44]          Walker’s Statement in Reply dated 19 April 2024 (‘W Reply’) [4]-[5].
[45] Statement of P Saba, [18] (JB19, 173); WSFIC (n 16), [59].
The Documents in Issue
Document 3 is an email from the Department to Walker regarding a record of a pre-referral meeting held on 26 April 2017.
Documents 10 and 22 are emails sent internally within the Department regarding developing aspects of the discussions with Walker in January 2018 and October 2017 respectively.
Document 11 is made up of various notes of meetings between the Department and Walker held between March 2017 and March 2018.
Document 44b is a note of a meeting between the Department and Walker held on 27 July 2017.
Having examined each of the Documents in Issue, the Tribunal agrees that to a significant extent their content is as observed in the ACF Federal Court Decision, as noted in paragraph 28 above. In addition, some content relates to Walker’s evolving views and approach during its engagement with the Department during 2017 and early 2018. Walker submitted that its ‘modus operandi’ at the time may be revealed and a benefit to a competitor ‘might’ flow.[46]
[46] Transcript of Proceedings 22 April 2024, p 61 lines 26-37.
Section 47(1)(b) exemption
Whilst Walker mentions s 47(1)(a) of the Act in its written submissions,[47] Walker’s submissions and evidence[48] were directed solely to s 47(1)(b) of the Act and the Tribunal has proceeded on that basis.
[47] WSFIC (n 16), [40].
[48] Statement of P Saba, [19]-[31] (JB19, 173-5).
Pursuant to s 47(1)(b) of the Act a document will be exempt from disclosure if it contains ‘any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information was disclosed.’ The Tribunal has had regard to Guideline [5.234]-[5.237].
The Tribunal has considered the content of each of the Documents in Issue. As an example, Document 3 is an email to Walker of the Department’s record of a pre-referral meeting held on 26 April 2017, over 7 years ago, noting some of the discussions between the two, which occurred as part of the pre-referral process and ‘records views in respect of the Project by representatives of the Department, which were expressed prior to Walker submitting its referral and prior to the preparation of the draft EIS and associated material’.[49]
[49] WSFIC (n 16), [62].
As noted, the Department does not object to the disclosure of Document 3 or the other Documents in Issue, submitting that some of the information within it is publicly available and now no longer relies upon the McNee affidavit,[50] including the view he held regarding the disclosure of Document 3 as at 11 December 2020.[51] Ms Tipene identifies overlapping information within Document 3 which appears within pages 8, 13 and 133 of ‘Exhibit CLT-1’ annexed to her affidavit. Walker has not challenged this evidence save that in Annexure A to his statement Mr Saba in respect of Document 3 repeats, ‘The information is not, to the best of my knowledge generally available, and remains relevant to the current Project and Walker’s existing commercial practices’.[52] The Tribunal notes that this general statement is repeated in respect of each Document in Issue without any specificity.[53] Further, the Project has not been ‘current’ since just prior to the hearing of this Application,[54] although Walker did submit orally that they may make a fresh approach in the future.
[50]          Transcript of Proceedings 22 April 2024, p 45, line [46] to p 46, line [1].
[51]          McNee Affidavit, [25] (JB11, 105).
[52]          Statement of P Saba ‘Annexure A’, (JB19, 176).
[53]          Ibid (JB19, 176-8).
[54]          See also para 9 of these reasons.
The generality of Mr Saba’s evidence extends to his ‘expectation that the commercial value of the information could be destroyed or diminished if it is published, including because the information is relevant and current, and would be valuable to any development within the Toondah Harbour Priority Development Area or within a Ramsar Wetland because the documents reveal Walker’s approach to the Project and developments more generally.’[55]
[55] Statement of P Saba, [24] (JB19, 173-4).
Putting aside the fact that such a general statement is more akin to a submission, whilst acknowledging that the rules of evidence do not apply to the Tribunal, the generality of such ‘evidence’ including other paragraphs of Mr Saba’s statement[56] is without specificity and on balance is not persuasive.
[56] For example, Statement of P Saba, [20]-[21] (JB19, 173).
Even if the Tribunal were to accept that the Documents in Issue contained some information of commercial value, even if de minimus, on the material before it, the Tribunal it is not satisfied that such commercial value of any information within the documents would or could reasonably be expected to be destroyed or diminished if the documents are disclosed.
The Tribunal finds that Walker has not established with any specificity what, if any, content of the Documents in Issue continues to have a commercial value to Walker that would be, or could reasonably be, expected to be destroyed or diminished if the information were disclosed. The Tribunal is not persuaded the claimed s 47(1)(b) exemption is made out.
In respect of any claim made by Walker pursuant to s 47(1)(a) of the Act, in light of the Tribunal’s findings in respect of the s 47(1)(b) claims, the Tribunal is satisfied that no trade secrets are within the Documents in Issue and that no s 47(1)(a) exemptions are established.
Section 47G(1)(a) exemption
The reasoning discussed above is also of some relevance in considering the s 47G(1)(a) exemption as to whether the disclosure of the Documents in Issue, would or could reasonably be expected to unreasonably affect Walker’s business, commercial or financial affairs adversely. Acknowledging that this is a separate conditional exemption, the Tribunal must consider any ‘unreasonable’ adverse effect of disclosure element. At its highest Mr Saba says of each Document in Issue, that he ‘expect[s] that the information in the document would assist competing developers to understand how Walker undertakes its developments and approaches the EPBC assessment process, and may enhance their own operations or objectives, or otherwise frustrate Walker’s legitimate commercial interests’.[57] Mr Saba, again, provides no specific basis for such a general expectation.
[57] Statement of P Saba ‘Annexure A’, (JB19, 176-8).
Walker is concerned with adverse consequences which may result where disclosure of, for example, Document 3 information occurs ‘in an isolated manner and without information relating to the context of the information (such as is provided in the draft EIS)’[58] and that such information ‘may be revealed by the media and used to campaign against approval of the Project’[59] (which is now not proceeding). Walker also submits that whilst the draft EIS contained current, relevant and accurate information regarding the Project, the information within the Documents in Issue ‘would only record views of attendees at the relevant meeting, such views having been expressed prior to preparation of the draft EIS and other work undertaken in respect of potential environmental impact of the Project’,[60] again possibly presenting Walker in an adverse light.[61]
[58]          WSFIC (n16), [71]; Statement of P Saba [23] (JB19, 173).
[59]          Ibid [72]; Statement of P Saba [24] (JB19, 173).
[60]          Ibid [72]; Statement of P Saba [21] (JB19, 173).
[61]          Ibid [72]; Statement of P Saba [23] (JB19, 173).
Walker contends adversity will flow if disclosure ‘would occur in an isolated manner and without information relating to the context of the information (such as is provided in the draft EIS)’,[62] but Mr Saba provides no specificity as to which part of Document 3 or any of the other Documents in Issue may cause the adversity save to express his general concern ‘that if the access documents are released there will be competing and potentially inconsistent disclosure of information to the public in relation to the Project, which may present Walker and its proposed development in an adverse light.’[63] He is further concerned that such information ‘could be used to campaign against approval of the Project, and this could impact adversely’ on Walker.[64] Nothing in Annexure A adds any specificity as to what, if any, content of Document 3 will result in any adversity to Walker. No basis for Mr Saba’s concerns in his paras [23] and [24] is provided. In any event, Walker would not be prevented from taking any public relations or other steps it may choose to take to deal with any of Mr Saba’s general concerns in the unlikely event that they arise.
[62] Ibid [71].
[63] Statement of P Saba, [23] (JB19, 173).
[64] Ibid [24] (JB19, 173-4).

On the material before it, and having examined each of the Documents in Issue, the Tribunal is not persuaded that disclosure is unreasonable ‘where the environmental approval process (including under the EPBC Act) contains a mandated public disclosure regime in which complete information relating to the Project, including relevant context, is made available to the public for information and consultation’[65] or unreasonable in any event. Further, the Tribunal is not satisfied that disclosure would or could result in any ‘adverse’ effects which could reasonably be expected to occur or any unreasonable effect which will adversely affect Walker’s business interests.
[65] WSFIC (n 16), [73]; See above Bromberg J discussion of relevant provisions of the EPBC Act at paras 7-8 of these reasons.
Having considered all the material, noting the age of the Documents in Issue, the fact that the Project is no longer current and after considering the content of such Documents against the relevant Guidelines, the Tribunal is not satisfied that any s 47G(1)(a) exemptions are made out.
Section 47G(1)(b) exemption
Walker claims this conditional exemption, submitting that disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth or its agencies.[66] Walker contrasts the approvals required under the EPBC Act with the pre-referral process from which the Documents in Issue originate.[67] Walker maintains it has a reasonable expectation that information generated from this confidential process would not generally be disclosed and would remain confidential, and that should such information be disclosed pursuant to FOI requests it is reasonably likely that Walker would be reluctant to openly engage with the Department in the future.[68]
[66] Ibid [74].
[67] Ibid [75]-[76].
[68] Ibid [77]-[78].
This conditional exemption has two parts, being ‘a reasonable expectation of a reduction in the quantity or quality of business affairs information to the government’ and that ‘the reduction will prejudice the operations of the agency’.[69] Further, there must be a ‘reasonable likelihood that disclosure’ would cause ‘a reduction in both the quantity and quality of business information flowing to a government’.[70]
[69] Guidelines, ‘Part 6 – Conditional Exemptions’ [6.197].
[70] Ibid [6.198].
The Tribunal also notes the following Guidelines:
Prejudice future supply of information
…
6.199 Where the business information in question can be obtained compulsorily, or is required for some benefit or grant, no claim of prejudice can be made. No prejudice will occur if the information in issue is routine or administrative (that is, generated as a matter of practice).
6.200 The agency will usually be best placed to identify, and be concerned about the circumstances where the disclosure of documents might reasonably be expected to prejudice the future supply of information to it.
(footnotes omitted)
The Department has no remaining concerns as to any consequences of disclosure and consistent with this no longer relies upon the evidence of Mr McNee. Pursuant to Guideline [6.200], the Department’s view favours disclosure. Hence, the Department does not identify any concerns where the disclosure of the Documents in Issue might reasonably be expected to prejudice the future supply of information to it. The Tribunal is of the view that the Department is best placed in this regard.
Also, Walker, in engaging with the Department years ago during the pre-referral process was doing so for the purpose of obtaining a benefit to itself, namely approval as the developer of the Project. In accordance with Guideline [6.199] Walker cannot make such a claim of prejudice. In any event the Tribunal is not satisfied on the material before it that where the prospect of substantial benefit exists Walker would not properly engage in any future process and provide all information necessary to ensure it would be best placed with respect to any future approvals it pursues.
Having considered each of the Documents in Issue and the general expectations, beliefs and likelihoods referred to in Mr Saba’s statement, in light of all the material before it, the Tribunal is not satisfied that disclosure would result in any of the consequences referred to in s 47G(1)(b). In particular, consistent with the view of the Department, the Tribunal is not satisfied that disclosure of the Documents in Issue will prejudice the future supply of information and therefore the s47G(1)(b) exemption is not established. Further, the Tribunal is not satisfied of any reasonable likelihood of the Documents in Issue’s disclosure resulting in a reduction in both the quantity and quality of business information flowing to a government.
Since the Tribunal has found that the Documents in Issue are not conditionally exempt pursuant to s 47G, it is unnecessary for the Tribunal to consider whether their disclosure, would, on balance, be contrary to the public interest within s 11A of the Act.
CONCLUSION
The Tribunal sets aside the decision under review insofar as it relates to the Documents in Issue and in substitution decides that the Documents in Issue are not conditionally exempt from disclosure under ss 47(1)(b) and 47G of the Freedom of Information Act 1982 (Cth). The Applicant is to be granted access to the Documents in Issue.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

.................................[sgd].......................................
Associate
Dated: 7 August 2024

Date of hearing 22 April 2024

Advocate for the Applicant Mr. Adam Beeson, General Counsel
Australian Conservation Foundation

Advocate for the First Respondent Ms. Chantal Tipene

Solicitors for the First Respondent Sparke Helmore Lawyers

Counsel for the Second Respondent Ms. Houda Younan SC

Solicitors for the Second Respondent Clayton Utz

Date of hearing	22 April 2024
Advocate for the Applicant	Mr. Adam Beeson, General Counsel Australian Conservation Foundation
Advocate for the First Respondent	Ms. Chantal Tipene
Solicitors for the First Respondent	Sparke Helmore Lawyers
Counsel for the Second Respondent	Ms. Houda Younan SC
Solicitors for the Second Respondent	Clayton Utz