Billabong Aboriginal Corporation and Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 956

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1600

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BILLABONG ABORIGINAL CORPORATION

Applicant

And DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date27 October 2008

PlaceCanberra

Decision The decisions under review are varied to the extent that access is granted to documents 38A and 55A and to document 120 with deletions as specified in these reasons. The decisions are otherwise affirmed.

..........[signed].........................

Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - exemptions - internal working documents - law enforcement - prejudice to operations of an agency - legal professional privilege - adverse effect on business affairs - public interest considerations – decision varied

Freedom of Information Act 1982 ss 3, 15, 22, 33A, 36, 37, 40. 42, 43,, 54, 58 61,63, 64, 68

Administrative Appeals Tribunal Act 1975 s 35.

Corporations (Aboriginal and Torres Strait Islander) Act 2006, s 439-20.

Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683

Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Limited (2001) 114 FCR 301

Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588

Harris v Australian Broadcasting Corporation (1983) 50 ALR 551

Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112

Re Howard and Treasurer of the Commonwealth of Australia (1984) 6 ALD 626

National Companies and Securities Commission v News Corporation Limited (1984) 52 ALR 417

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49

Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia(1999) 201 CLR 49

Commonwealth v Dutton (2000) 102 FCR 168

Commissioner of AFP v Propend Finance Pty Ltd (1997) 188 CLR 501

Waterford v Commonwealth (1987) 163 CLR 54

Grant v Downs (1976) 135 CLR 674

Pearse v Pearse (1846) 63 ER 950

REASONS FOR DECISION 

27 October 2008 Mr S. Webb, Member         

1.      The Billabong Aboriginal Corporation provides housing and related programs, and receives funding from the Respondent Department. Departmental officers raised concerns about the management and accountability of the Corporation in relation to Commonwealth grants. A review was initiated. Alleging a lack of procedural fairness and inadequate consultation, the Corporation withdrew from the review and requested access to documents and information held by the Department under the Freedom of Information Act 1982 (the FOI Act).[1] Subsequently, the Corporation agreed to reduce the scope of the request.[2] The Department, nevertheless, identified a large number of documents within its scope and proceeded to deal with these in four tranches,[3] failing to comply with the applicable statutory time limits.[4]  The Corporation requested internal review of the decisions made in relation to the second and fourth tranches of documents.[5] Unhappy with the outcome of the internal review concerning the second tranche of documents and the time taken to finalise a review decision concerning the fourth tranche of documents, the Corporation lodged an application for review[6] of the second tranche decision and the deemed decision to refuse access to the fourth tranche of documents.[7] These matters are presently before the Tribunal.

[1] T3.

[2] T4.

[3] T5, T6, T7 and T9.

[4] Freedom of Information Act 1982 (Cth) s 15.

[5] T8 and T10.

[6] T1.

[7] Freedom of Information Act 1982 (Cth) s 56.

2.      Subsequently the internal review of the decision concerning the fourth tranche of documents was completed and the Department decided to release certain documents or parts thereof to the Corporation.[8] The Tribunal agreed to vary the decision under review in the terms agreed by the parties.[9] As commonly occurs in such cases, negotiations continued; the Department agreed to release additional documents, in whole or in part, and the Corporation agreed not to press for access to certain documents. The terms of the decisions under review were again varied by consent orders.[10]

[8] T11.

[9] Consent orders pursuant to s 26 of the Administrative Appeals Tribunal Act 1975, 8 July 2008.

[10] Consent orders, s 26 of the Administrative Appeals Tribunal Act 1975,1 October 2008.

3.      When the matter came on for hearing, at the outset, further consent orders were made, permitting the release of additional documents to the Corporation. Furthermore, the Corporation informed me that it would not press for access to:

(a)irrelevant material in documents numbered 36A, 42, 55, 66, 76, 81, 82, 103, 121, 122, 123, 124, 125, 126, 127, 128A, 140, 141, 142, 143, 170, 171, 172, 174, 180, 186, 192, 213, 218, 219, 220, 223, 231, 250, 251, 255, 270, 271, 275; and

(b)material that is subject to legal professional privilege in documents numbered 15, 20, 43, 62, 131, 134, 135, 138, 212, 214, 247, 248, 249, 253, 254, 276, 277, 278, 279, 280, 288, 289, 290, 291, 292, 293, 294, 295, 296 and 297.

4.      I was informed by the parties that the remaining matters for determination, concern 31 documents which the Department asserts are exempt, in whole or in part, being documents 38A and 55A from the second tranche of documents and documents 29, 30, 36, 37, 68, 119, 120, 144, 175, 193, 199, 217, 237, 256, 258, 260, 264, 265, 266, 267, 268, 272, 273, 281, 282, 283, 284, 286 and 287 from the fourth tranche of documents.

5.      I will proceed on that basis.

6.      In proceedings under the FOI Act the onus is on the government department or agency, in this case the Secretary of the respondent Department, to establish that the exemptions claimed are justified.[11]  Discretion is to be exercised under the FOI Act “as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information”.[12]

[11] Freedom of Information Act 1982 (Cth) s 61.

[12] Freedom of Information Act 1982 (Cth) s 3.

7.      The 31 documents in question were provided to the Tribunal pursuant to s.64 of the FOI Act.  Orders restricting access to and release of these documents were given pursuant to s.63 of the FOI Act and s.35 of the Administrative Appeals Tribunal Act 1975.  I note that the Tribunal does not have power to grant access to a document that is exempt under the FOI Act.[13]

[13] Freedom of Information Act 1982 (Cth) s 58.

8.      The Department presses the following deletions and exemptions:

(a)irrelevant material – s 22, FOI Act: documents 237, 272 and 273;

(b)internal working documents – s 36, FOI Act: documents 38A, 55A, 68, 119, 120, 144, 175, 256, 258, 260, 264, 265, 266, 267, 268, 281, 282, 283, 284, 286 and 287;

(c)documents affecting the enforcement of law – s 37, FOI Act: documents 119 and 120;

(d)documents concerning certain operations – s 40, FOI Act: documents 119, 120 and 256;

(e)documents subject to legal professional privilege – s 42, FOI Act: documents 144, 217, 264, 265, 266, 267, 281, 282, 283, 284, 286 and 287; and

(f)documents relating to business affairs – s 43, FOI Act: documents 29, 30, 36, 37, 193 and 199.

irrelevant material

9.      Documents 237, 272 and 273 have been released with deletions. In the Department’s submission the deleted material is irrelevant, being outside the terms of the Corporation’s request.

10.     I agree.

11.     The Corporation’s request, as narrowed, is in the following terms:[14]

“I am emailing to confirm that we are agreeable to a variation in our request for information under the FOI Act 1982 to a reduction in the time lines to encompass from 1^st July 2005 to 31^st December 2006. We are also agreeable to in this instance identifying the following programs for which we have been funded being Community Housing Infrastructure Program (CHIP), Our Family Our Community Unified Strategy (OFOCUS) and Interconnect. a copy of all documents and electronic records including any records notes memos that are held by the department either electronically, in archive or in physical form that relate in part or in full to Billabong Aboriginal Corporation including, in particular, documents as described above by Donald Inman, Lawrence Gilbert, Gwen Lissome employees of the department. We also request a copy of the report and audit conducted by Ernst and Young in late 2006 on behalf of the department.”

[14] T 4.

12.     The request is confined by its terms.  The terms, however, must not be construed strictly, in the sense of pleadings or legislation for example, or in a manner that is unreasonably narrow.[15]  The request must be considered in the context in which it is made, with an eye to the policy of openness that underlies the FOI Act.  The issue, in essence, is whether disclosure of the information “might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request”.[16]  If the information is found to be irrelevant to the request, the Secretary is not required to disclose it.[17]

[15] Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692.

[16] Re Russell Island Development Association Inc and Department of Primary Industries and Energy (supra) at ALD 691.

[17] Freedom of Information Act 1982 (Cth) s 22.

13.     The material deleted from document 237 at folio 754 does not refer to and is unrelated to the Corporation, and is not reasonably within the terms of the request. The deleted material in document 272 at folios 854 and 855 concerns entities other than the Corporation and, in my opinion, is reasonably considered to be outside the scope of the Corporation’s request. The material deleted from document 273 at folio 856 does not refer to the Corporation and, on Mr Inman’s evidence, is not related to the Corporation. Having carefully considered the deleted material in context, I accept Mr Inman’s evidence and find that the particular material in document 273 is outside the terms of the Corporation’s request.

14.     It follows that the deleted parts of documents 237, 272 and 273 are irrelevant to the Corporations’ request and there is no obligation to release that material.

internal working documents

15. The Department asserts that documents 38A, 55A, 68, 119, 120, 144, 175, 256, 258, 260, 264, 265, 266, 267, 268, 281, 282, 283, 284, 286 and 287, in whole or in part, are exempt from release pursuant to s 36 of the FOI Act. In the Department’s submission release of the information would disclose matters concerning the deliberative processes of the Department in relation to its functions. The Department asserts that such disclosure is contrary to the public interest.

16.     The Corporation asserts that even if the documents are within the terms of sub-paragraph 36(1)(a) of the FOI Act, their release is not contrary to the public interest. In the Corporation’s submission, release of the documents is in the public interest, citing three grounds:

“1. The delay of the Department in responding to the FOI request and the “ambit claim” nature of its original response.

2.  Increased transparency of the Departments actions and in particular the actions of relatively junior officers working in the NSW/ACT Office of the Department

3.  A measure of accountability for the Department actions in 2006 when it engaged, at the direction of the then Government, in an essentially ideological attempt to mainstream indigenous services and in particular to close down Aboriginal housing organisations”

17.     The test to be applied for the purposes of subsection 36(1) of the FOI Act requires consideration of the deliberative processes[18] that would be disclosed and whether such disclosure would be contrary to the public interest. As can be seen, even if there are grounds supporting release of the document or documents in the public interest, entitlement to access does not follow if it is established that release is contrary to the public interest on any reasonable ground. Furthermore, I will bear in mind what the Full Court said in Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Limited[19] concerning the requirement to consider whether the matter is ‘in the nature of’ and ‘relating to’ opinion, advice, recommendation, consultation or deliberation when applying sub-paragraph 36(1)(a).[20]

[18] Re Waterford and Department of the Treasury (No2) (1984) 5 ALD 588 at [58] to [60]; Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 560.

[19] (2001) 114 FCR 301 at 309.

[20] Freedom of Information Act 1982(Cth) s 36(1)(a).

18. I have carefully considered each of the documents. I am satisfied that none of the documents or parts thereof, over which exemptions are pressed, are within the terms of subs 36(6),[21] concerning reports and formal statements of reasons: the documents do not have that character. Furthermore, for the purposes of subs 36(5),[22] I am satisfied that the documents, or contentious parts thereof, do not contain purely factual material or factual material pertaining to investigations that may be severed  for the purposes of release without compromising the non-disclosure of any remaining material.

[21] Freedom of Information Act 1982 (Cth) s 36(6).

[22] Freedom of Information Act 1982 (Cth) s 36(5).

19.     It can be accepted that each document identified at paragraph [15] was created in the context of Departmental concerns about the governance of the Corporation in relation to Commonwealth funding and specific grants. The contentious material is in the nature of or relates to opinions, advice, recommendations, consultations and deliberations in the course of Departmental deliberative processes. I am therefore satisfied that the contentious material in each of the documents is within the meaning of sub-paragraph 36(1)(a).[23] The material sets out opinions, advice or recommendations in the context of pre-decisional consultations and deliberations that involve Departmental officers pursuant to Departmental functions relating to the Corporation.

[23] Freedom of Information Act 1982 (Cth) s 36(1)(a).

20. That being so, the question in the case of each document, or part thereof, is whether disclosure would be contrary to the public interest. I am mindful of the authorities concerning public interest considerations for the purposes of s 36[24] relied on by the respondent Department.[25] I also note the written and oral evidence of Mr Inman. No other probative evidence concerning relevant matters was adduced.

[24] Freedom of Information Act 1982 (Cth) s 36.

[25] See for example Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 at 121-122; Harris v Australian Broadcasting Corporation (supra); Re Howard and Treasurer of the Commonwealth of Australia (1984) 6 ALD 626.

21. Documents 38A and 55A have been released with deletions. The deleted material sets out opinions and options in the context of deliberative processes between the Department and ACT Government officials. On Mr Inman’s evidence the deleted material is not accurate and does not reflect Departmental policy or the Indigenous Housing Bilateral Agreement between the Commonwealth and ACT Governments. I note that the Bilateral Agreement is not in evidence. I accept Mr Inman’s evidence, nevertheless, and find that the deleted material is inaccurate and speculative opinion in the context of pre-decision deliberations then in process. Consistent with Mr Inman’s evidence, the Department says that disclosure of the inaccurate information could reasonably be expected to mislead and cause confusion. This could, in turn, provoke unnecessary and ill-informed debate that would not fairly or properly reflect the ultimate decisions or policy of the Department. Furthermore, the Department says that disclosure of the information may inhibit frank discussion and may undermine the cooperative arrangements and trust between officers of the Department and the ACT Government in the future. That may be so, but there is scant evidence to support any such conclusion, although it can be accepted that inter-governmental communications are likely to be more sensitive than intra-departmental communications. In the circumstances, I am not persuaded that disclosure of this material is contrary to the public interest. In the context of the material in these documents that has already been released, I see no reason, contrary to the public interest, to withhold the remaining material from disclosure. It follows that the documents 38A and 55A are not exempt pursuant to subs 36(1) of the FOI Act and may be released.

22.     Document 68 contains a clearance sheet concerning a draft email. The document has not been released. On Mr Inman’s evidence the draft email was not finalised or sent, and contains thoughts and preliminary opinions. The clearance sheet is plainly and simply that: a sheet seeking advice about an attached draft email. I accept that the contents of the email did not convey completely formed or concluded positions or policy, and was not proceeded with. The material is plainly a deliberative draft at an early stage of development; one can accept that such drafts are commonly prepared, with only some proceeding further through the Departmental processes for settling and approving such material. On Mr Inman’s evidence this draft was not proceeded with and was discarded. At the highest, the document reflects the thinking of an individual at a certain point in time and it is not indicative of Departmental policy. It does not reasonably or fairly reflect the Department’s decision-making process. On that basis, and on the evidence before me, the release of such preliminary material does not serve any public interest, and is contrary to it. I so find. It follows that the document is exempt from release.

23.     Document 119 has been released with deletions. The deleted material concerns deliberations and recommendations then under consideration. On Mr Inman’s evidence the information concerns matters of a confidential nature that are not publicly known and are ongoing. The department says that disclosure of this information may lead to unnecessary and unfair assumptions being made about its subject. I accept that it may and, furthermore, I am satisfied that disclosure of this information may prejudice the conduct of an investigation. Thus, disclosure of the deleted material is contrary to the public interest and that material is exempt from release. I so find.

24.     Document 120 has been released with deletions. The deleted material contains a draft Ministerial minute and a related email. Document 175 also contains a draft Ministerial minute, but has not been released. Mr Inman’s evidence, which went unchallenged on this point, is that these documents are early drafts that had not been properly checked, settled or finalised in accordance with usual Departmental procedures, and were not sent to the Minister. Mr Inman’s evidence is that the contents of the drafts may contain inaccuracies and are not reliable representations of fact or Departmental policy: the drafts are works in progress within a deliberative process. This evidence is consistent with part of the contents of document 120 and all of the content of document 175. Disclosure of such incomplete or inaccurate information may reasonably be expected to lead to ill-informed debate and confusion. Rather than exacting higher standards of Departmental accountability and decision-making, as contended by the Corporation, especially when ‘relatively junior officers’ are involved, disclosure of such information may reasonably be expected to have a contrary effect, impeding deliberative processes concerning the development of policy options, alternatives and recommendations for Ministerial consideration. The accountability of Departmental deliberative decision-making processes may reasonably be tested in relation to the processes used, the outcomes delivered and the decisions made. In the present circumstances there is little to be gained in the public interest by exposure of early draft materials such as in documents 120 and 175, whereas the release of such material may be detrimental to the public interest in maintaining robust deliberative decision-making processes within Government. There is scant evidence before me, however, that disclosure of such material could reasonably be expected to diminish the frankness and candour of intra-Departmental communications in relation to deliberative processes involving Ministerial briefings, although that cannot be ruled out. What can be said on the present evidence is that, in the particular circumstances, the release of such draft or preliminary information made in the course of policy development could reasonably be expected to lead to confusion and ill-informed debate, without any countervailing benefit to the public. This, I am satisfied, would be contrary to the public interest in maintaining high standards of decision-making within government, and being mindful of what Davies J (as he then was) said in Re Howard and Treasurer of the Commonwealth of Australia.[26]

[26] Re Howard and Treasurer of the Commonwealth of Australia (supra) at 634 to 635.

25.     On this basis, document 175 in its entirety and part of document 120 is exempt from release. I am not persuaded, however, that all of the deleted material in document 120 is of the same character. Much but not all of the deleted material in document 120 is consistent with material already released to the Corporation or that is in the public domain, and I can find no reasonable ground, contrary to the public interest, to preclude that information from release. Thus, document 120 may be released with deletion of the following material:

·     all of the material in folio 312,

·     all of the material above ‘KEY POINTS’ in folio 313,

·     all of the material below the first paragraph (following the words ‘… between 2002 and 2006.’) in folio 314.

Furthermore, the material at point 8 in folio 316 is irrelevant material and there is no obligation to release it. This material will also be excised from document 120.

26.     Document 144 has been released with deletions. The deleted material is in the form of hand written notes of meetings between Departmental officers, including legal officers of the Department. Although the handwritten notes are difficult to read, the notes appear to set out legal advice in relation to deliberations then in process concerning the Corporation. It appears to me that this deleted material is exempt from release as it is subject to legal professional privilege. Were that not so, I am not persuaded that release of the material would be contrary to the public interest.

27.     Documents 256, 258, 260 and 268 are in the form of emails that contain commentary and discussion of options and alternatives in the context of deliberative processes arising from Departmental concerns about the Corporation and related review processes. These documents have not been released. On Mr Inman’s evidence these communications relate to deliberative processes of a steering committee that was established to guide review processes relating to the Corporation. His evidence is that the steering committee included representatives from the ACT Government and officials of the respondent Department. Mr Inman asserted that communications and deliberations of the steering committee are treated in confidence, as there is a need for full and frank discussions about issues, processes and objectives, including in relation to briefings for Commonwealth and ACT Government Ministers. Mr Inman gave evidence concerning the intergovernmental policy framework underlying the considerations of the steering committee. I accept that release of these materials may compromise the confidentiality of steering committee deliberations. There is scant evidence, however, to support the Department’s submission that disclosure of these documents would raise an impediment to open communications between Commonwealth and ACT Government officers in the future. Considering Mr Inman’s evidence, as it appears to me, at the highest, any such effect would be unlikely to extend beyond the particular steering committee. I note that the Department has not pressed any exemption under s 33A of the FOI Act. There is no compelling probative evidence before me that would support such a conclusion: on the present evidence it is unlikely that disclosure of information such as that contained in these documents would or could reasonably be expected to cause damage to relations between the Commonwealth and the ACT.

28.     Mr Inman’s evidence is that matters concerning the Corporation, in relation to funding arrangements and the outcome of the reviews that have been conducted, are ongoing. I accept that disclosure of the information contained in documents 256, 258, 260 and 268 may adversely affect the ongoing deliberations of the steering committee and related operations of the Department in relation to those matters. There is a powerful public interest in cooperative policy development and the effective coordination of programs, including the proper evaluation and acquittal of publicly funded programs and projects, involving the Commonwealth and the States and Territories in relation to indigenous issues.

29.     The public interest in the Corporation’s right to know, and in the transparency of Government decision-making, does not outweigh the public interest in maintaining effective inter-government policy development and communication as it relates to indigenous issues, and more specifically in this case, funding provided for housing and related programs. That being so I am satisfied that release of the documents would be contrary to the public interest and the documents are exempt from release.

30.     Documents 264, 265, 266, 267, 281, 282, 283, 284, 286 and 287 contain information about deliberative processes and legal advice. With the exception of document 281, which has been released with deletions, these documents have not been released. Even though these documents are within the ambit of sub-paragraph 36(1)(a),[27] I am not persuaded that their release is contrary to the public interest. I am satisfied, however, that each of these documents is subject to legal professional privilege.

[27] Freedom of Information Act 1982 (Cth) s. 36(1)(a).

31. Of course, these conclusions should not be interpreted to imply that there is no public interest in the Corporation’s right to know or in maintaining high levels of transparency and accountability in executive government decision-making processes; those are powerful public interests, but they do not necessitate release of the subject information contrary to the public interest which I have identified. I note in passing that the general right of access to information that is expressed in s 3 of the FOI Act is subject to exemptions necessary to protect essential public interests and the private and business affairs of persons. I also note that the Corporation’s interests in obtaining access to information should not be confused with public interests that must be weighed when determining questions such as those presently on foot.

32. It is appropriate to respond to the Corporation’s submissions concerning the accountability of the Department in relation to an allegedly ideological approach to indigenous policy in 2006. The documents presently in contention, being early drafts of Ministerial minutes, emails and other deliberative materials prepared by Departmental officers, do not shed light on that allegation, which is not supported by any evidence before me. The public interest in the release of this material, as I have said, in the circumstances does not outweigh the public interest in maintaining high standards of Government decision-making, in which options and alternatives can be raised and considered before a decision is made. Where the balance lies concerning such public interest considerations is a matter to be determined on the particular facts of each case and on reasonable grounds raised on the evidence that is adduced. On the evidence before me I have decided that the exemptions claimed by the Department under s 36 are made out, as the contentious materials are within the terms of sub-paragraph 36(1)(a) of the FOI Act[28] and disclosure of those materials would be contrary to the public interest.

[28] Freedom of Information Act 1982 (Cth) s 36(1)(a).

documents affecting the enforcement of law

33.     The Department asserts that contentious parts of documents 119 and 120 are exempt on the grounds that disclosure could reasonably be expected to prejudice the conduct of an investigation for the purposes of sub-paragraph 37(1)(a).[29]

[29] Freedom of Information Act 1982 (Cth) s 37(1)(a).

34.     I agree with regard to the deleted material in document 119 and part of the deleted material in document 120.[30]

[30] Document 120, paragraphs 2, 3 and 4 in folio 314.

35.     Mr Inman’s evidence is that the documents refer to specific investigations which are ongoing. His evidence is that disclosure could be expected to prejudice the efficacy of those investigations, not least by alerting those concerned. I accept that disclosure may result in such prejudice, placing the subjects of the investigations the position of “looking over his shoulder all the time to see how the investigation is going”, and by possibly closing off other sources of inquiry.[31] I am reasonably satisfied, on Mr Inman’s evidence, that this is an expectation that is reasonably based.[32] Thus I am satisfied that this material is exempt from release pursuant to sub-section 37(1).[33]

[31] National Companies and Securities Commission v News Corporation Limited (1984) 52 ALR 417 at 437 per Mason, Wilson and Dawson JJ.

[32] See Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.

[33] Freedom of Information Act 1982 (Cth) s 37(1).

documents concerning certain operations

36.      The Department asserts that the contentious parts of documents 119 and 120 and all of document 256 are exempt from release pursuant to sub-paragraph 40(1)(a),[34] as disclosure of this material could reasonably be expected to ‘prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency’. I have found that this material is exempt under other heads of exemption under the FOI Act. It is appropriate, nevertheless, to address the exemptions claimed under s 40. The Department says that public disclosure of details of the procedures that are ongoing would prejudice the effectiveness of those procedures, not least by alerting those concerned and potentially closing off avenues of inquiry, and that is not in the public interest.

[34] Freedom of Information Act 1982 (Cth) s40(1)(a).

37.     I agree in relation to the deleted parts of document 119, three paragraphs of document 120[35] and part of document 256, being the material in folio 806.

[35] Document 120, paragraphs 2, 3 and 4 at folio 314.

38.     This material sets out details and particulars of procedures relating to Departmental operations that have not been publicly disclosed. Mr Inman gave evidence that public disclosure of this information could be expected to prejudice the effectiveness of the procedures that are presently ongoing: once alerted those concerned may modify their behaviour or attempt to close off sources of inquiry. This, I am satisfied, could reasonably be expected to prejudice the effectiveness of those procedures. Thus, the material will be exempt from release unless, on balance, disclosure is in the public interest.

39.     Plainly enough in this case, on the one hand, the public interest is served by the proper administration of justice, ensuring procedural fairness and natural justice for those that are the subject of investigation, as well as appropriate Departmental transparency and accountability. On the other hand the public interest may be advanced by ensuring the effectiveness of Departmental procedures for the conduct of investigations in relation to the proper administration of publicly funded programs and projects, and adherence to conditions attaching to any such public funding. It can be accepted that in some cases, and perhaps in many cases, certain Departmental investigative procedures may require confidentiality to be properly effective. In such cases one would expect that such procedures would exist in a broader framework, delivering procedural fairness and natural justice to those concerned: placing any adverse material or allegations squarely before those concerned and providing adequate and reasonable opportunity for any such material or allegations to be properly addressed.

40.     Weighing these interests, it appears to me that the public interest in the administration of justice is served by allowing the present confidential phase of investigative procedures to be completed, protecting aspects of those procedures that may compromise future investigations if released. Of course one would then expect that full disclosure of any adverse material or allegations would then be made to those concerned and adequate and reasonable opportunity provided to address the material before finalisation of any findings or conclusions at the Departmental level. Of course if litigation ensues, the administration of justice will be a matter for the courts. The public interest in ensuring the efficacy of Departmental investigative procedures is served, presently, by maintaining the confidentiality of those procedures. On that basis, I am satisfied that disclosure of the contentious material in documents 119, 120 and 256, on balance, is not in the public interest. I note that on the present evidence, particularly that of Mr Inman, the broader framework of investigative procedures to which I have referred is unclear. It should be noted that confidentiality in Departmental investigations is not a matter that is open ended or unfettered, and must exist only within a proper framework that advances the administration of justice.

41.     The public interest in transparency and accountability of Government decision-making and investigatory processes must be weighed against the public interest in ensuring that serious allegations concerning defective governance in publicly funded organisation or in the administration of public funds under grant are properly investigated.  These interests may be promoted, on the one hand, by providing appropriate transparency and accountability in such investigative processes, as contended by the Corporation, or on the other hand, by ensuring the effectiveness of such processes, being mindful in either case of the requirement to provide procedural fairness and natural justice to those concerned and having regard to issues of privacy.  In that regard the public interest in the administration of justice weighs heavily in the balance, and when considered in addition to the public interest in maintaining properly effective and robust deliberative decision-making processes, these interests outweigh those pressed by the Corporation, concerning efficiency, transparency and accountability.

42. I note that investigations into the Corporation by the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations, on referral from the Department, resulted in the issuing of a notice under s 439-20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The letter in Exhibit A1 is evidence that the notice requirements have been met. On Mr Inman’s evidence, this result does not resolve all of the Departmental issues concerning the Corporation, and other procedures are ongoing. Thus, even though it appears that certain investigations have been completed, other procedures are still ongoing, and the completion of the ORAC investigation does not warrant release of the documents presently in issue.

43.     During the hearing Mr Best, representing the Corporation, discussed special audit reports prepared by Walter Turnbull and Associates. These proceedings, however, are not an appropriate forum in which to ventilate or attempt to resolve specific aspects of disputation between the Corporation and the Department, other than in relation to the documents in issue.

documents subject to legal professional privilege

44.     The Department says that documents 144, 217, 264, 265, 266, 267, 281, 282, 283, 284, 286 and 287 are subject to legal professional privilege, and are exempt (in relevant parts) from release. The Corporation informed me that these exemptions would not be challenged if they are properly made out.

45.     As will appear, I am reasonably satisfied that they are.

46.     Legal professional privilege attaches to confidential communications between a lawyer and his or her client and attaches to material that was brought into existence for the dominant purpose of obtaining or providing legal advice or services or for use in litigation.[36]  It matters not that the material is a collection or a collation of documents, including copies of documents, as long as the material was collected or collated, or copied, for the dominant purpose of legal advice or use in pending litigation.[37]

[36] See The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at pars [9] and [10]; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 54; Commonwealth v Dutton (2000) 102 FCR 168 at 178-179.

[37] Commissioner of AFP v Propend Finance Pty Ltd (1997) 188 CLR 501 at 553.

47.     The documents identified in paragraph 42 are, I am satisfied, documents that were prepared for the dominant purpose of obtaining or providing legal advice. Even though the legal advice was provided by ‘in house’ Departmental lawyers, those lawyers, I accept, were employed within the Department’s legal services section for the purposes of providing impartial legal advice. I accept that at all relevant times there was a solicitor-client relationship between the particular lawyers in the Department’s legal services section and the Departmental officers seeking legal advice.[38] Confidential communications and materials that were generated within the solicitor-client relationship by lawyers in the legal services section and Departmental officers for the dominant purpose of obtaining or providing legal advice, or for use in relation to procedures and possible litigation involving the Corporation, are protected under legal professional privilege.

[38] See Waterford v Commonwealth (1987) 163 CLR 54.

48.     Legal professional privilege is a rule of law.  For the purposes of the FOI Act it is an expression of the public interest in the administration of justice by encouraging full and frank disclosure of information by the client to his or her legal advisor.[39] The importance of maintaining an appropriate degree of confidentiality and independence in client–solicitor relationships is recognised in the long entrenched principle of legal professional privilege.[40]  There are strong reasons for government agencies to obtain independent expert legal services and advice in preparation for or anticipation of litigation. Obtaining such independent legal advice can be expected to promote a proper application of the law, especially in relation to issues of natural justice, procedural fairness and individual rights, and to enhance the quality of administrative decisions.  It stands counter to arbitrary or capricious decision making contrary to law and encourages full and frank disclosure of relevant circumstances.  It therefore promotes the public administration of justice.  Those considerations weigh heavily against releasing the confidential communications and materials contained in these documents. I am reasonably satisfied, therefore, that they are, in relevant parts, exempt from release pursuant to sub-section 42(1) of the FOI Act.

[39] See Grant v Downs (1976) 135 CLR 674.

[40] Grant v Downs (supra) at 685; Pearse v Pearse (1846) 63 ER 950 at 957.

documents relating to business affairs

49.      The Department asserts that the material deleted from documents 29, 30, 36, 37, 193 and 199 is exempt because it contains information of commercial value, concerning the business, commercial and financial affairs of Ernst and Young that would be adversely affected by public disclosure.

50.     The Corporation informed me that it was not interested in pursuing access to material concerning Ernst and Young’s tender pricing and related information.

51.     I accept that undertaking. The documents in question have been released in part and the deleted material sets out information relating to Ernst and Young’s tender pricing and related information. Even without the Corporation’s concession, I am satisfied that public release of this information would, in all likelihood, be exempt pursuant to sub-paragraph 43(1)b) and (c).[41]

[41] Freedom of Information Act 1982 (Cth) s 43(1)(b), (c).

conclusion

52.     Having carefully considered the submissions of the parties and the contents of each document, or part thereof, to which access has been requested, I am reasonably satisfied that further material can be released to the Corporation, being documents 38A, 55A and parts of document 120. All of the other material over which exemptions are claimed is, for the reasons already stated, exempt from release.

53.     That being so the decisions under review will be varied accordingly.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: ................[signed]...................................
  Demelza-Rose Gale           
  Associate

Date of Hearing  13 October 2008

Date of Decision  27 October 2008

Representative for the Applicant: Unrepresented

Representative for the Respondent:  Mr R. Niall