Cox; Secretary, Department of Agriculture, Water and the Environment and (Freedom of information) - [2023] AATA 375

Cox; Secretary, Department of Agriculture, Water and the Environment and (Freedom of information) [2023] AATA 375 (9 March 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2021/9890
Re:Secretary, Department of Agriculture, Water and the Environment
APPLICANT

AndLisa Cox
RESPONDENT

File Number(s): 2022/0671 and 2022/0672
Re:Lisa Cox
APPLICANT

AndSecretary, Department of Agriculture, Water and the Environment
RESPONDENT

Appeal from: [2021] AICmr 72

Decision
Tribunal:Deputy President Britten-Jones
Date:9 March 2023
Place:Melbourne

In proceeding 2021/9890, the decision of the Tribunal is to set aside the decision of the Information Commissioner and substitute a finding that:
(a)Documents 1, 2, 3, 4, 4a, 5, 6, 7, 7a, 8, 9a, 13, 14, 14d, 15, 16, 17, 18, 18a, 19, 20, 21, 22, 23, 24, 25 and 26 are exempt in part under s 47F, or in the alternative, s 47E(c);
(b)Documents 9, 10, 10a, 10b, 10c, 11, 12, 13a and 13b are exempt in full under s 37(2)(b), or in the alternative s 47E(d); and
(c)Document 22a is exempt in full under s 47C.
In proceeding 2022/0671, the Tribunal affirms the decision under review.
In proceeding 2022/0672, the Tribunal affirms the decision under review.
.......................[sgd].................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – access sought to documents relating to the native grasslands in the south eastern highlands of New South Wales – exceptions claimed under ss 34, 37(2)(b), 47C, 47E(d) and 47F – Secretary bears the onus under s 61 – whether documents brought into existence for the dominant purpose of briefing a Minister on a Cabinet document – whether disclosure would reveal a Cabinet deliberation or decision – whether documents would disclose deliberative processes – whether disclosure of documents would affect enforcement of law – whether disclosure of documents would affect operational conduct – whether disclosure is in the public interest or whether disclosure is contrary to the public interest – decision under review in proceeding 2021/9890 is set aside – decisions under review in proceedings 2022/0671 and 2022/0672 are affirmed
Legislation
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)
Cases
Arnold v Queensland (1987) 73 ALR 607
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Commonwealth v Northern Land Council (1992) 176 CLR 604
Commissioner of Taxation v Pratt Holdings Pty Ltd (2003) 195 ALR 717
Fernandes and National Archives [2014] AATA 180
Fisse v Secretary, Department of Treasury (2008) 172 FCR 513
Lobo and Department of Immigration and Citizenship [2011] AATA 705
New South Wales v Ryan (1998) 101 LGERA 246
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
Warren; Chief Executive Officer, Services Australia and (Freedom of Information) [2020] AATA 4557
Secondary Materials
Department of the Prime Minister and Cabinet, Cabinet Handbook, 15th Ed.
Office of the Australian Information Commissioner, Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
9 March 2023
These applications for review arise from a request for documents made under the Freedom of Information Act 1982 (Cth) (the FOI Act)[1] by a journalist, Lisa Cox, to the Secretary of the Department of Agriculture, Water and the Environment (the Secretary). The documents relate to the native grasslands in the south eastern highlands of New South Wales; in particular on a property in the Monaro district owned by Jam Land Pty Ltd, a company in which Angus Taylor MP and his brother, Richard Taylor, have an interest. The property is the subject of a remediation determination made by the Department of Agriculture, Water and the Environment (the Department) on 28 April 2020, which found that Jam Land Pty Ltd had contravened the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) by spraying two lots on the property with herbicide in 2016, resulting in the removal of 28.5 hectares of protected grassland.
[1] All references to legislation are to the FOI Act unless otherwise stated.
Background
The Secretary is the applicant in proceeding 2021/9890 (Proceeding 9890) and the respondent in proceedings 2022/0671 (Proceeding 0671) and 2022/0672 (Proceeding 0672). The Secretary bears the onus under s 61 in relation to each of these proceedings.
Proceeding 9890
On 15 October 2019 Ms Cox made an application to the Department[2] pursuant to the FOI Act for documents relating to the compliance action against Jam Land Pty Ltd in 2017. The Department made a decision which was then the subject of an internal review followed by a review by the Information Commissioner. On 19 November 2021, the (Acting) Information Commissioner made a decision under s 55K as follows:
(a)the material that the Secretary decided was exempt under s 37(2)(b) was exempt;
(b)the material that the Secretary decided was conditionally exempt under s 47C was conditionally exempt, but giving access to the material would not, on balance, be contrary to the public interest;
(c)the names of departmental and ministerial staff were not conditionally exempt under s 47E(c) or s 47F; and
(d)the personal information of 9 persons who were not departmental or Ministerial staff, and the contact details of all individuals, were irrelevant to the request.
[2] Known then as the Department of the Environment and Energy.
The Secretary has applied to the Tribunal for a review of this decision.
Proceeding 0671
On 29 July 2019, Ms Cox made an application to the Department pursuant to the FOI Act for documents relating to the dealings between the Department and certain politicians for the period February 2017 to May 2018. The Department made a decision which was then the subject of an internal review followed by a request for a review by the Information Commissioner. On 18 January 2022, the Information Commissioner decided not to undertake a review. On 27 January 2022, Ms Cox sought review in the Tribunal.
Proceeding 0672
On 14 February 2020, Ms Cox made an application to the Department pursuant to the FOI Act for:
Information and or briefings on the natural temperate grassland of the south eastern highlands that were prepared ahead of meetings between the Minister and the Prime Minister and/or their staff.
The Department made a decision which was then the subject of an internal review followed by a request for a review by the Information Commissioner. On 18 January 2022, the Information Commissioner decided not to undertake a review. On 27 January 2022, Ms Cox sought review in the Tribunal.
Issues
In Proceeding 9890 the issues relate to the effect of disclosure on personal privacy and on law enforcement. The question for determination is whether documents are exempt under the following provisions in the FOI Act:
(a)Section 47F, or in the alternative, s 47E(c); or
(b)Section 37(2)(b), or in the alternative, s 47E(d).
In Proceeding 0671 there are additional issues relating to Cabinet confidentiality and deliberative processes. The issue for determination is whether documents are exempt under the following provisions in the FOI Act:
(a)Section 37(2)(b);
(b)Section 47F, or in the alternative, s 47E(c);
(c)Section 34; or
(d)Section 47C.
In Proceeding 0672 the issue is whether documents are exempt under the following provisions in the FOI Act:
(a)Section 47F; or
(b)Section 34.
Evidence
The Secretary lodged affidavit evidence from Ilona Stobutzki dated 5 May 2022, Richard Chadwick dated 5 May 2022 and 16 June 2022, and Tharanie Jayamalie Vithanage dated 5 May 2022 and 16 June 2022. These witnesses were cross examined by counsel for Ms Cox.
Ms Stobutzki gave evidence that:
(a)she has been employed by the Department since 2006 and is currently the Assistant Secretary of the Protected Species and Communities Branch of the Department;
(b)she has reviewed the documents which have been redacted under s 47F. The Department has redacted the names and contact details of junior officers who are below Senior Executive Service (SES) level. She deposed in her affidavit that:
[33] There is a significant distinction between SES level and other more junior staff in the Australian Public Service (APS). This distinction is clear in both the different recruitment and employment conditions. Recruitment at SES levels has different processes and requirements that are followed, and SES staff are not covered by the same terms and conditions as junior staff. Junior staff tend to be employed under an enterprise agreement while SES staff are engaged under individual contracts which means they can be more easily moved to a different area.
[34] SES staff are more senior in that they tend to have more experience and are expected to exercise greater judgement. Someone in an SES role generally holds more delegations than a non-SES staff member, which means they make and are accountable for making more decisions. For example, decisions around recruitment, financial resources and travel. They may also hold delegations to make particular decisions under legislation administered by the Department. SES staff approve briefs that go to the Minister, a task that would be very rarely delegated to a junior staff member.
(c)her branch deals with highly contentious and very emotive issues, specifically in the area of environmental regulation. She is of the opinion that if junior staff names were disclosed, the safety of those junior officers would be at risk in breach of the Department’s obligation to take all reasonable steps required to minimise the risk of harm to departmental offices under the Work Health and Safety Act 2011 (Cth) (WH&S Act).
Mr Chadwick gave evidence that:
(a)he has been employed by the Department since April 2019 and has been in his current role as Assistant Secretary of the Environment Compliance Branch of the Department since May 2021;
(b)he has reviewed the documents claimed to be exempt from disclosure under s 37(2)(b). He believes these documents describe procedures and methods employed by the Department’s Compliance and Enforcement Division to detect, investigate and manage alleged breaches of environmental law. He poses two specific examples of investigative procedures and methods which are disclosed in the documents. It is his genuinely held opinion that if the procedures and methods were disclosed, the effectiveness of those methods and procedures would be significantly diminished in the future;
(c)he believes that the disclosure of the Department’s investigation methods and procedures would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department;
(d)he has reviewed the documents claimed to be exempt from disclosure under s 47F. SES staff are senior members of the Australian Public Service (APS). Staff who are not SES are classified at either the APS office level or at the executive level. These staff all report to persons in SES roles. SES staff are expected to be publicly identifiable. Their names are made publicly available on the Department directory, and they are identified in publications as the persons responsible for particular business units. He deposed in his 5 May 2022 affidavit that:
[66] It is the SES staff who are responsible for, and publicly accountable for, the matters that are the subject of the documents in question. Junior level staff are ultimately accountable for their conduct and decisions to SES-level staff…
(e)he is of the opinion that if the junior staff names were disclosed, “the safety of those junior officers may be at risk in breach of the Department’s obligation to take all reasonable steps required to minimise the risk of harm all to all departmental offices under s19”[3] of the WH&S Act.
[3] Chadwick affidavit dated 5 May 2022 at [71].
Ms Vithanage gave evidence:
(a)that she has been employed at the Department since September 2021. Her current role is Assistant Secretary of the Governance and Reform Branch in the Environment Approvals Division of the Department;
(b)that she has reviewed the documents claimed to be exempt under ss 34 and 47C; and
(c)related to whether some of the documents in issue were exempt from disclosure for Cabinet confidentiality.
I will refer below in more detail to the evidence of the witnesses for the Secretary.
Ms Cox provided affidavit evidence setting out the background to her request for access to the documents in question. She deposed to the public interest in disclosing the documents and responded to matters raised by Mr Chadwick with respect to law enforcement.
Documents claimed to be exempt under s 34 – the Cabinet exemption
In Proceeding 0671 the Secretary claims that documents 16, 17a, 18, 18a, 19, 19a, 20, 20a, 20b, 21, 21a, 23 and 23a are exempt in part or in full under s 34. In Proceeding 0672 the Secretary claims that document 7a is exempt in full under s 34(1)(c). As previously stated, the onus is on the Secretary under s 61 to make out the claims for exemption. I note that Ms Vithanage expresses her view that these documents are exempt documents under s 34.[4] I do not rely upon the evidence of Ms Vithanage insofar as she expresses an opinion as to the ultimate issue which, of course, is a matter for the Tribunal. Ms Vithanage’s opinion about the very matter that the Tribunal has to decide should not be regarded as evidence providing support for that conclusion and it should not be relied upon.[5] Further, I note that Ms Vithanage was not employed by the Department when any of the documents in issue were created. She can therefore give no direct evidence about the documents or, for example, the purpose for their creation. However, Ms Vithanage has significant experience with respect to the preparation of Cabinet related materials and Cabinet processes more generally. She has gained that experience whilst employed by the Department since September 2021 and also in her previous role as Chief of Staff to the Australian Border Force Commissioner, where she led the Ministerial and Parliamentary team. Ms Vithanage is therefore appropriately qualified to give evidence as to Cabinet practices and processes. The practices and processes of Cabinet are also contained within the Cabinet Handbook issued by the Department of Prime Minister and Cabinet to which I have had regard in accordance with the Freedom of Information Guidelines (FOI Guidelines) at [5.57].
[4] Vithanage affidavit dated 5 May 2022 at [14], [22], [28], [34] and [41].
[5] See Fisse v Secretary, Department of Treasury (2008) 172 FCR 513 per Buchanan J at 535 [71] and per Flick J at 550 [130].
Section 34 provides:
(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.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) 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.
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5) A document by which a decision of the Cabinet is officially published is not an exempt document.
(6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
The Full Court of the Federal Court in Fisse v Secretary, Department of Treasury[6] said in relation to s 34:
[100] The established convention as to Cabinet confidentiality and those common law principles relevant to determining a claim for public interest immunity in respect to Cabinet deliberations, it is considered, may inform the legislative objective sought to be achieved — particularly in relation to s 34 of the 1982 Act. The legislative objective in passing s 34 was self-evidently to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet. The Second Reading Speech of 18 August 1981 thus records in part:
… Only in some cases are the exempt documents defined by reference to the nature of the document itself, such as Cabinet and Executive Council documents. It is of the essence of Cabinet government that the deliberations of Cabinet and of the Executive Council should be protected from mandatory disclosure. Of course, the tenor of many Cabinet decisions, as well as various Executive Council decisions are published. The documents which make these decisions public are not, of course, exempt documents under the Bill.
[101] It nevertheless remains the task of the Tribunal, and of this Court on appeal, to apply the terms of the 1982 Act to the facts as found. That Act attempts to incorporate (not only in s 34 but also in sections such as ss 37 and 42) claims for withholding information which would have been withheld at common law; it is also an Act which more fundamentally confers a right of access, subject only to those exemptions defined by those statutory provisions in Pt IV. Given the legislative objective of ensuring openness in government, it is of fundamental importance that the terms of the 1982 Act providing for exemptions are construed according to their terms.
[6] (2008) 172 FCR 513.
Documents brought into existence for the dominant purpose of briefing a Minister
Section 34(1)(c) incorporates a reference to s 34(1)(a) such that to be exempt under s 34(1)(c) a document must be brought into existence for the dominant purpose of briefing a Minister on a document:
(a)submitted to the Cabinet for its consideration, or proposed by a Minister to be submitted to Cabinet; and
(b)brought into existence for the dominant purpose of submission for consideration by the Cabinet.
The effect of s 34(1)(c) is to extend the scope of exempt documents from a Cabinet submission (exempt under s 34(1)(a)) to include what can be described as a briefing document, namely a document brought into existence for the dominant purpose of briefing a Minister in relation to a Cabinet submission or proposal.
The Cabinet Handbook issued by the Department of Prime Minister and Cabinet contemplates that Ministers bringing forward a Cabinet submission are fully briefed by making ministers “responsible for ensuring that the consultation necessary to enable a fully informed decision occurs at both ministerial and official levels”.[7]
[7] The Cabinet Handbook 15^th Edition at p 7 [19].
The Cabinet Handbook further contemplates the briefing of a Minister as follows:
[19]…. This includes adhering to processes and timeframes for circulation of submissions. One objective of consultation in the development of proposals is to ensure that, as far as possible, differences between ministers are resolved in advance of the Cabinet’s consideration or, if resolution is not possible, differences are identified and set out in such a way as to facilitate informed decision-making.[8]
[8] Ibid.

In this case, the document that was submitted to Cabinet for its consideration was described as the Final Cabinet Submission. It is annexed as a confidential exhibit to the affidavit of Ms Vithanage dated 16 June 2022. There is no doubt that this Cabinet submission would be a document exempt under s 34(1)(a). The Secretary claims that documents 18a, 21a and 23 in Proceeding 0671 and document 7a in Proceeding 0672 are exempt under s 34(1)(c) as briefing documents. The question for the Tribunal is whether those documents were brought into existence for the dominant purpose of briefing a Minister in relation to a Cabinet submission.
The law is settled that:
(a)the time at which these documents were brought into existence is the time at which the requisite purpose under s 34(1) must be ascertained;[9]
(b)the ‘dominant purpose’ is the ruling, prevailing, paramount or most influential purpose.[10]
[9] Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 at [68] and [110]. See also Freedom of Information Guidelines at [5.65].
[10] Commissioner of Taxation v Pratt Holdings Pty Ltd (2003) 195 ALR 717.
The Secretary relies upon both the nature of the individual documents and the context for their creation as support for the contention that s 34(1)(c) is satisfied.
Document 18a in Proceeding 0671 and document 7a in Proceeding 0672
I will now consider document 18a in Proceeding 0671, which is an attachment to the email dated 30 January 2018 (document 18). Document 18 has been partially redacted but otherwise describes the attachment (namely document 18a) as a “draft one page handling brief that we have prepared covering the EPBC reform sub for the Minister’s meeting with the PM on Friday”. This suggests to Ms Vithanage that document 18a was used to brief the Minister on a Cabinet submission. I accept that it is apparent from the covering email that the attachment was a briefing document created for the purpose of briefing the Minister in relation to the Cabinet submission dealing with “EPBC reform”.
Further support for this conclusion is the “Protected, Sensitive: Cabinet” marking on the footer of document 18a. In this regard Ms Vithanage deposes:
[16] Document 18a is marked in the footer as "Protected, Sensitive: Cabinet". Under the protective security framework a rating of "Sensitive: Cabinet" is applied if there is a realistic expectation that the document will be used in a Cabinet process. The originator of the document decides on the classification of the document. From my knowledge of the usual practice about when this marker is applied to documents, the "Protected, Sensitive: Cabinet" marker that was applied to document 18a reflects that the originator of the document would have intended it to be used in connection with Cabinet. As such, it appears to me that document 18a was intended to be used in connection with Cabinet activity. Annexed and marked "A" is a copy of the Department's Security Guideline for Classification of Information.[11]
[11] Vithanage affidavit dated 5 May 2022.
Merely marking the document “Protected, Sensitive: Cabinet” would not on its own be sufficient evidence to satisfy s 34(1)(c), but in the context of the covering email and the subsequent Final Cabinet Submission there is probative evidence that document 18a is a document brought into existence for the dominant purpose of briefing a Minister on a Cabinet submission.
I have had the opportunity of reading the unredacted copies of document 18, document 18a and the Final Cabinet Submission and the Cabinet Minute (both attached to the Vithanage affidavit dated 16 June 2022). It is apparent from my consideration of these unredacted documents that the attachment to the 30 January 2018 email was created for the dominant purpose of briefing a Minister on a Cabinet submission. The same can be said for document 7a in Proceeding 0672, which contains the same text as document 18a but in a slightly different format. I find that the claim for exemption under s 34(1)(c) is made out with respect to document 18a in Proceeding 0671 and document 7a in Proceeding 0672.
Document 21a in Proceeding 0671
I will now consider document 21a in Proceeding 0671 which is an attachment to the email dated 15 February 2018 (document 21). The sender of the document 21 email is the same as the sender of the email dated 30 January 2018 (namely document 18). Document 21 has been partially redacted but is marked “Sensitive: Cabinet”, and otherwise describes the attachment (namely document 21a) as “Talking Points” and “a revised document listing examples of reported problems farmers are having with the EPBC Act”. It is apparent that document 21 is a follow up email to the earlier email dated 30 January 2018, and that it attaches a further briefing document containing examples as talking points for a briefing relevant to the same Cabinet submission.
I have had the opportunity of reading the unredacted copies of document 21, document 21a and the Final Cabinet Submission and the Cabinet Minute (both attached to the Vithanage affidavit dated 16 June 2022). It is apparent from my consideration of these unredacted documents that the attachment to the 15 February 2018 email was created for the dominant purpose of briefing a Minister on a Cabinet submission. I find that the claim for exemption under s 34(1)(c) is made out with respect to document 21a in Proceeding 0671.
Document 23 in Proceeding 0671
I will now consider document 23 in Proceeding 0671. Document 23 has been fully redacted, but Ms Vithanage deposes that it is a brief to the Minister prepared by the Department, asking that they sign a letter to the Prime Minister requesting to bring the relevant submission to Cabinet within a certain timeframe. Ms Vithanage concludes, based upon her review of the documents and her experience, that document 23 was used to brief a Minister on a Cabinet submission. I have read the unredacted copy of document 23 and can see from its face that it is a briefing document to a Minister in relation to the same Cabinet submission. I find that it is exempt under s 34(1)(c).
Draft documents
Ms Vithanage has given the following evidence with respect to documents 19a, 20a and 20b in Proceeding 0671 which are claimed by the Secretary as draft documents exempt under s 34(1)(d):
[22] I have examined documents 19a, 20a and 20b, as well as the related cover emails at document 19 and document 20. Based on the content of those documents and my review of the relevant Cabinet records, I am of the view that the documents meet the requirements for the exemption at section 34(1)(d), as each is a draft of a document to which section 34(1)(a) applies - that is, a document submitted to Cabinet for its consideration or of a document proposed by a Minister to be so submitted.
[23] Document 19a is a draft Cabinet submission. It accords to the standard template that you would expect to follow when preparing a Cabinet submission. The format, the Australian Government marker, the way in which the sponsoring Minister is identified, are all common to how Cabinet submissions are prepared. There is no other reason why this template would be used other than to submit the document for Cabinet. Page 2 contains recommendations for cabinet decision making. There would be no other reason to prepare a document in this form containing recommendations, other than to submit such a document to Cabinet for consideration. The document is not numbered yet which indicates it is a draft and has not been circulated to the central agencies and any other relevant agency that has any interest yet. The document number is assigned by the Cabinet Division of Prime Minister and Cabinet. Document 19a is marked "Protected Sensitive: Cabinet".
[24] Document 20a is a draft of the same Cabinet submission as document 19a, however it is a later version and a little more refined. For the same reasons as set out above for document 19a, document 20a is prepared in a manner that is entirely consistent with the form and process of preparing a Cabinet submission.
[25] Document 20b contains the attachments to document 20a. Document 20a lists the attachments, which is consistent with what is contained in document 20b. It is common for Cabinet submissions to have attachments. The attachments form part of the submission itself as part of the same document pack. Document 20b is exactly the type of document I would expect to see in an attachment to a Cabinet submission of this sort.
[26] I have reviewed relevant Cabinet records, including the relevant Cabinet Minute (Cabinet Minute), and the final version of the submission that was provided to Cabinet for consideration. The Cabinet Minute is the official record of what was discussed and decided in Cabinet. I can see that the final submission reflects the content contained in documents 19a and 20a. The content of the final submission is not exactly the same as what is reflected in documents 19a and 20a, which is expected as they are drafts of that document. I note that however the substantial portion of what is contained in the documents, particularly document 20a, is also contained in the final document that was submitted to Cabinet. This confirms that the final version of these submissions were considered by Cabinet.
[27] Following a review of documents 19a, 20a, 20b, the relevant Cabinet records and my knowledge of documents of this type gained from my various roles dealing with Cabinet documents, it is my view that the documents are draft versions of a document to which 34(1)(a) applies, and therefore is exempt under 34(1)(d) of the FOI Act which I have also seen.
Document 19a is fully redacted. It was an attachment to an email dated 15 December 2017 (document 19). The email refers to the attachment as “171215 Cab Sub.docx” and says that it “is likely to require further refinement”. It is apparent from this wording of the covering email that the attachment is a draft of a Cabinet submission that will be further refined. Ms Vithanage has reviewed the unredacted document and gives evidence that it accords to the standard template for a Cabinet submission. She also considers the content of the document, including that it is marked “Protected Sensitive: Cabinet”, and confirms it is a draft of a document which would be submitted to Cabinet. Ms Vithanage gives the same evidence with respect to document 20a (also an attachment to an email), except to say that it is a later draft version of document 19a and is a little more refined.
I have reviewed the unredacted copies of document 19a and document 20a and compared them to the Final Cabinet Submission, which is annexed as a confidential exhibit to the affidavit of Ms Vithanage dated 16 June 2022. It is apparent from my comparison of these documents that documents 19a and 20a are both draft versions of the document that was submitted to Cabinet. Much of their content is very similar to the Final Cabinet Submission. I find that these documents are drafts of a document to which s 34(1)(a) applies.
Document 20b is fully redacted. It is described in the Schedule of Documents Claimed to be Exempt Documents as the “Attachments to draft cabinet submission (attached to doc 20a)”. Ms Vithanage gives evidence based on her experience that it is common for Cabinet submissions to have attachments and that the attachments form part of the submission itself. I accept this evidence and find that document 20b is a draft of an attachment to a Cabinet submission and is therefore a draft of a document to which s 34(1)(a) applies.
I conclude that documents 19a, 20a and 20b in Proceeding 0671 are exempt documents under s 34(1)(d).
Documents that reveal a Cabinet deliberation or decision
Section 34(3) exempts documents to the extent that their disclosure would reveal any deliberation or decision of the Cabinet unless the existence of the deliberation or decision has been officially disclosed. Ms Vithanage deposed in her affidavit of 5 May 2022 that the existence of the deliberation or decision of Cabinet has not been officially disclosed. There was no challenge to this evidence which I accept.
The evidence of the Cabinet deliberation or decision is found in the Cabinet submission and Cabinet minute which are confidential exhibits to the Vithanage affidavit of 16 June 2022.
Documents 16, 17a, 21 and 23a in Proceeding 0671
I will now consider documents 16, 17a, 21 and 23a in Proceeding 0671 which the Secretary claims are exempt in full under s 34(3). Document 23a is a letter that Ms Vithanage says outlines key issues in the Cabinet submission. Documents 16 and 17a are draft versions of the document 23a letter and therefore these three documents can be considered together. Document 21 is a one-page email dated 15 February 2018 to which attached is document 21a (referred to above). Ms Vithanage deposes that document 21 includes information regarding the status and content of document 21a which I have already found is exempt from disclosure as a briefing document under s 34(1)(c).
The Secretary claims that documents 16, 17a, 21 and 23a are exempt under s 34(3) because their disclosure would reveal the deliberations of Cabinet. The determination of this issue requires a comparative analysis between the information in those documents and the information in the Final Cabinet Submission and Cabinet Minute, which together provide the content of the deliberations of Cabinet. If the information in documents 16, 17a, 21 and 23a included the matter of the Cabinet deliberation, then one would conclude that these specified documents contain information that, if disclosed, would reveal a Cabinet deliberation. Ms Vithanage carries out this comparison in her affidavit dated 5 May 2022 at paragraphs 28 and 29 and concludes that each of the documents contains information which was deliberated upon by Cabinet. I have carried out the same comparison and I agree with the conclusion reached by Ms Vithanage.
I find that documents 16, 17a, 21 and 23a are exempt in full under s 34(3) because their disclosure would reveal the deliberations of Cabinet.
Documents 18, 19 and 20 in Proceeding 0671
I will now consider documents 18, 19 and 20 in Proceeding 0671 which the Secretary claims are partially exempt under s 34(3). Ms Vithanage deposes to these documents in her 5 May 2022 affidavit as follows:
[34] I have examined documents 18, 19, and 20. Based on the content of those documents and my review of the relevant Cabinet records, I am of the view that the documents, in part, meet the requirements for the exemption at section 34(3), as each contains information the disclosure of which would reveal a Cabinet deliberation or decision, where the existence of the deliberation or decision has not been officially disclosed.
[35] Document 18 is an email dated 30 January 2018 that attaches document 18a which, as established above, is a 34(1)(c) document. The partial 34(3) exemptions have been applied to the email subject line and the list of attachments, as this reveals the title and content of document 18a, and a section of the email that details document 18a's connection to the relevant Cabinet submission.
[36] By reviewing the content of documents 18, 18a and the relevant Cabinet records, I can see that document 18a briefed the Minister on a Cabinet submission, and so the information in document 18 which reveals the contents of document 18a would reveal Cabinet deliberations. As this information has not been officially disclosed, 34(3) has been applied in part to the relevant sections of the document.
[37] Document 19 is an email dated 15 December 2017 that attaches document 19a which, as established above, is a 34(1)(d) document. The partial 34(3) exemptions have been applied to the email subject line and the list of attachments, as this reveals the title and timing of Document 19a, as well as a section in the body of the email which states the title of the relevant Cabinet submission.
[38] By reviewing the content of documents 19, ·19a and the relevant Cabinet records, I can see that document 19a is a draft Cabinet submission, and so the release of the submission titles and other relevant information in document 19 would reveal Cabinet deliberations. As this information has not been officially disclosed, 34(3) has been applied in part to the relevant sections of the document.
[39] Document 20 is a two-page email dated 29 January 2018 that attaches documents 20a and 20b which, as established above are draft Cabinet submissions. The partial 34(3) exemptions have been applied to the email subject line and the list of attachments, as this reveals the title and timing of Document 20a, as well as a section in the body of the email which details ongoing Cabinet process in relation to the timing and consideration of the final Cabinet submission.
[40] By reviewing the content of documents 20, 20a, 20b and the relevant Cabinet records, I can see that documents 20a and 20b are draft Cabinet submissions, and so the release of the submission titles and other relevant information in document 20 would reveal Cabinet deliberations. As this information has not been officially disclosed, 34(3) has been applied in part to the relevant sections of the documents
Documents 18, 19 and 20 are emails from the period December 2017 to January 2018. Each of these emails attach and refer to material (namely documents 18a, 19a, 20a and 20b) that I have found to be exempt as Cabinet documents under s 34(1). I adopt the findings that I made above with respect to documents 18a, 19a, 20a and 20b which can also be applied to the relevant parts of documents 18, 19 and 20. In her affidavit Ms Vithanage explains the extent of the redactions which I accept relate to information the disclosure of which would reveal a Cabinet deliberation or decision. I note that the Schedule of Documents Claimed to be Exempt Documents still refers to the whole of document 20 being exempt under s 34(3), but this is inconsistent with the affidavit evidence of Ms Vithanage at paragraphs 39 and 40 so I assume that access has been given to part of document 20.
I find that documents 18, 19 and 20 are partially exempt under s 34(3) to the extent that their disclosure would reveal a Cabinet deliberation or decision.
Documents disclosing deliberative matter – s 47C
Section 47C(1) sets out the general rule prescribing when a document will be conditionally exempt on the basis it will disclose deliberative processes:
(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; or
(d) the Government of Norfolk Island.
The exceptions to the general rule are set out in s 47C(2):
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
There is an alternative claim under s 47C that disclosure of documents 18, 19, 20 and 21 would reveal deliberative matter. I will now consider this claim, noting that I am not required to consider this alternative given that I have found that s 34(3) applies to these documents because their disclosure would reveal the deliberations of Cabinet. It follows from this finding that documents 18, 19, 20 and 21 would be conditionally exempt under s 47C. The exceptions as set out in s 47C(2) have no application.
The public interest
The Secretary must give access to the conditionally exempt documents pursuant to s 11A(5), unless access would be contrary to the public interest. A decision maker cannot withhold access to a document simply because it is conditionally exempt. The FOI Guidelines provide, at 6.7, that:
…Disclosure of conditionally exempt documents is required unless in the particular circumstances and, at the time of the decision, there is, on balance, countervailing harm which offsets the inherent public interest of giving access.

For the purposes of working out whether access would, on balance, be contrary to the public interest, s 11B sets out factors favouring access and factors that are irrelevant and further obliges the decision-maker to have regard to the FOI Guidelines.
The law recognises that the public interest in the confidentiality of Cabinet processes means that there exists a public interest against requiring the Government to disclose documents which form part of those processes. However, that is not the end of the matter; as the High Court said in Commonwealth v Northern Land Council:[12]
…Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. But, whatever the position may have been in the past, the immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence...
(footnotes omitted)
[12] (1992) 176 CLR 604 at 616.
The FOI Guidelines consider the interaction between s 47C and the Cabinet exemption in s 34:
6.86 In some cases, a document may contain deliberative matter that relates to Cabinet in some way but is not exempt under the Cabinet exemption in s 34. An example would be a document containing deliberative matter that is marked ‘Cabinet-in-Confidence’ but nonetheless does not satisfy any of the exemption criteria in s 34. Disclosing a document of this kind would not necessarily be contrary to the public interest only because of the connection to Cabinet deliberations. For example, disclosure is less likely to be contrary to the public interest if:
·the document contains a deliberative but otherwise non-sensitive matter about a policy development process that has been finalised, and
·the government has announced its decision on the issue.
(footnotes omitted)
The FOI Guidelines reflect that the public interest in disclosure may prevail even where the documents have a connection to Cabinet deliberations. Nevertheless, it remains the case with respect to documents 18, 19, 20 and 21 that the public interest, within the context of s 47C, in maintaining the principle of Cabinet confidentiality will be given significant weight:
… it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made...[13]
[13] Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615.
Ms Vithanage deposes in her 5 May 2022 affidavit, and I agree, that it is not in the public interest for the general public to become aware of matters which were deliberated upon by Cabinet. Further, I agree with Ms Vithanage that it is important that the deliberations are not made publicly available because they may be taken out of context and because those engaged in the deliberations would feel constrained if their discussions were disclosed.
The Secretary relies upon the evidence of Ms Vithanage to support the contention that there is a public interest in the protection of Cabinet confidentiality which would be undermined if the documents in issue were released. Appropriate weight should be given to her evidence. As said in New South Wales v Ryan:[14]
In a case where the court has to weigh the competing public interests, it is required, in doing so, to give weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document. In Sankey v Whitlam (at 44) Gibbs ACJ said that the court is “required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest”, and he reiterated the point, using the expression “full respect” (at 46). In the same case, Stephen J quoted (at 59-60) a statement by Lord Pearson to similar effect, and Mason J said (at 96) that the court “will give weight to the Minister's opinion that the documents should not be produced”. Since the public interest on which the immunity is based is concerned with the protection of the inner workings of government, this proposition is inevitable.
[14] (1998) 101 LGERA 246.
Having identified the public interest in not disclosing the documents in question, I must weigh that factor against those factors that favour granting access to the documents. Section 11B(3) provides a non-exhaustive list of factors that favour access:
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.
The factors in ss 11B(3)(a) and (b) favour access. Disclosure of the documents would promote the objects of the FOI Act, including by increasing public participation in Government processes and by increasing scrutiny of Government activities.
I consider that disclosure of the documents would inform debate on a matter of public importance. There is a significant public interest in understanding policy decisions by Government in respect of ecological environments that have been listed as “endangered” since the year 2000 and “critically endangered” since 2016.[15]
[15] Cox affidavit dated 2 June 2022 at [8] and [29].
In terms of weighing up the factors for and against granting access to documents 18, 19, 20 and 21, I give greater weight to the need to maintain confidentiality over Cabinet related documents. I conclude that granting access to documents 18, 19, 20 and 21 would, on balance, be contrary to the public interest.
Documents affecting enforcement of law – s 37(2)(b)
Section 37 relevantly provides:
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;
The phrase “could reasonably be expected to” was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190 where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J.
Sheppard J agreed with Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft,[16] but gave separate reasons in which he said at 196:
…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.
[16] (1986) 10 FCR 180.
Wilcox J said in Arnold v Queensland (1987) 73 ALR 607 at 616 that the words “could reasonably be expected” do not require the demonstration of a probability of damage.
There are two elements that must be satisfied in sub-s (b) of s 37(2). The first element should be read with its chapeau in s 37(2) so as to require that its disclosure would, or could reasonably be expected to, disclose certain lawful methods or procedures. The second element is that the disclosure would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
The FOI Guidelines,[17] with respect to exemptions, provides at [5.17]:
The use of the word “could” in this qualification is less stringent than “would”, and requires analysis of the reasonable expectation rather than certainty of an event, defect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
[17] The Tribunal is required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner.
It follows that the use of the word “could” in the first element of s 37(2)(b) is less stringent than “would”, which is used in the second element. The first element requires analysis of a reasonable expectation rather than the certainty of the relevant disclosure occurring. The second element requires a higher level of satisfaction, namely that prejudice would “reasonably likely” be caused by the disclosure. The word “likely” can, in some contexts, mean “probably”, and in other contexts mean a real or not remote chance or possibility.[18] Given the general object of the FOI Act is to give access to information held by the Australian Government, the words “reasonably likely” require the higher standard, namely a meaning of “probably” in the sense of more likely than not. In other words, the Secretary will have to establish that prejudice will, on the balance of probabilities, be caused by the disclosure.
[18] Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 380 and Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 308 - 313.
The Secretary referred me to the Tribunal decision of Lobo and Department of Immigration and Citizenship [2011] AATA 705 (Lobo) where Deputy President Forgie carried out a similar analysis of the two elements or ‘qualities’ in s 37(2)(b):
[208] Where s 37(2)(b) differs from exemption provisions such as s 37(1)(b) or even ss 33(1)(a)(ii) and (b) is that the defined outcome is not itself defined in what might be thought to be absolute terms. The defined outcome is first defined by reference to methods or procedures that have two qualities. The first is that they are methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. If they are, the exemption does not apply unless the second quality is also present. The second is that they are methods or procedures whose disclosure “would, or would be reasonably likely to” prejudice their effectiveness.
Deputy President Forgie in Lobo concludes:
[211] When analysed, it seems to me that the expressions “would, or could reasonably be expected to” and “would, or would be reasonably likely to” lead to little practical difference…
I have concluded, contrary to Deputy President Forgie in Lobo, that there is a significant difference between these two expressions in the sense that the first requires a lower standard of probability than the second. With respect to the first expression, I would adopt President Kerr in Fernandes and National Archives [2014] AATA 180 who said that:
[40]…the proper point of the spectrum is somewhere between risk and balance of probabilities. But in the end … the real test is not to be found in any gloss of judicial language, but rather in the language of the Archives Act itself understood in the context of the interests it is protecting…
With respect to the second expression, I have found that the causal connection between the disclosure and the prejudice caused must be established on the balance of probabilities.
As for the meaning of ‘prejudice’, I would adopt Deputy President Forgie in Lobo who said:
[212] … The meaning of “prejudice” in this context is that of “... harm; detriment; disadvantage ...”. The harm, detriment or disadvantage is to the ability of the methods or procedures to prevent, detect, investigate or deal with matters arising out of breaches or evasions of the law.
[213] The way in which the exemption has been applied appears in the reasons for decision by two differently constituted Tribunals. The earlier reasons were prepared by The Hon GD Clarkson QC, Senior Member, Mr Wilkins and Dr Billings, Members in Re Mickelberg and Australian Federal Police. They said:
“... in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility. Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies (sic), own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.”
[214] A similar approach was taken by Senior Member Beddoe in Re Murphy and Australian Electoral Commission when he considered a request for access to documents setting out what the Australian Electoral Commission (AEC) considered to constitute valid and sufficient reasons for a person’s failure to vote in a Federal election. In finding that the documents were exempt under s 37(1)(b), Senior Member Beddoe referred to the AEC’s having guidelines so that its divisional returning officers might make consistent decisions as to whether or not an elector had a valid and sufficient reason for failure to vote at an election. He continued:
“... [T]he divisional returning officers are required to rely primarily on the responses to their Penalty Notices. It is clear, on the material that they do not conduct face to face investigations with each defaulting voter and that they rely, to a large extent, on the honesty of the responses. That procedure depends upon those responses being a frank and factual statement of the facts rather than an excuse which is known to be an acceptable excuse to the electoral office. ... The techniques adopted by the electoral office in the administration of s 245 of the Electoral Act are, in my view, lawful methods or procedures for detecting investigating or dealing with matters arising out of breaches of s 245 of the Electoral Act and the disclosure of those methods or procedures would or would be reasonably likely to prejudice the effectiveness of those methods or procedures. ...”
(footnotes omitted)
I turn now to the open evidence to determine whether it is sufficient to support a finding under s 37(2)(b). This evidence is also relevant to the alternative claim that the documents are conditionally exempt under s 47E(d) because of the effect of their disclosure on the proper and efficient conduct of the operation of the Department.
Documents 9, 10, 10a, 10b, 10c, 11, 12, 13a and 13b in Proceeding 9890
In Proceeding 9890, the Secretary claims that documents 9, 10, 10a, 10b, 10c, 11, 12, 13a and 13b are exempt in full under s 37(2)(b). Mr Chadwick has reviewed these documents and deposed in his affidavit dated 5 May 2022:
[37] I am of the belief that these documents describe procedures and methods employed by the Department's Compliance and Enforcement Division to detect, investigate and manage alleged breaches of environmental law. Aspects of the Department's investigative methodologies are disclosed in these documents more generally. The Department's methods and procedures for investigating a breach of the law covers the approach it takes to the matter in its entirety, and this extends beyond specific processes or procedures followed for an aspect of the investigation, for example the process for conducting a site visit. The department's investigative methodologies incorporate a broad range of activities including operational practices, techniques, theories, lines of enquires, who is involved and how we engage with parties, what investigators focus on and consider relevant, and how senior managers engage with investigators and are briefed. Should these documents be released, they would disclose to the public the Department's investigation methodologies, and would compromise the Department's investigations by exposing how the investigative function is undertaken, thereby enabling its evasion.
[38] Specific examples of investigative procedures and methods which are disclosed in the document are as follows:
(a)Document 9 sets out the procedure that was to be followed by the officers when inspecting the relevant property to assess if there was a breach of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the process being followed during the site inspection. If these procedures were disclosed, it would have the effect of disclosing the Department's methodology for conducting site investigations.
(b)Documents 10, 11, 12 and 13(a) similarly set out, among other things, the approach and process of the Department's engagement with the relevant landholders in investigating an alleged contravention of the EPBC Act, including who is involved and how investigators engage with parties in the course of the investigation.
(c)Document 10(a) discloses the Department's methodologies to the extent that it details what the Department considers when conducting an investigation, and its negotiation strategy regarding discussions with a landholder, which directly related to the Department's method for dealing with matters arising out of a breach of the EPBC Act.
(d)Documents 10(b) and 10(c) contain, among other things, the various compliance options available to the Department, including factors that the Department will consider when deciding which of the various options to pursue if there is an alleged contravention of the EPBC Act. Document 10(c) sets out in some detail the way an investigation is conducted.
(e)Document 11 contains the proposed approach to an investigation and so discloses the Department's processes and procedures for this type of investigation, and how risk is assessed in relation to investigative techniques.
(f)Document 12 sets out the approach taken in an investigation including theories, lines of inquiry and investigator advice, which again discloses the Department's methodology for conducting this type of investigation.
(g)Document 13(a) discloses a method for dealing with an identified breach of the law by the Department and is correspondence in relation to which both parties would consider they have a reasonable expectation of privacy, as the contents of the correspondence were not intended to be public.
(h)Document 13(b) contains imagery used to assess a suitable resolution to the alleged contravention of the EPBC Act. The quality of the imagery and how well it shows vegetation is evident.

I have also reviewed these documents and agree with Mr Chadwick that they describe methods and procedures employed by the Department to detect, investigate and manage alleged breaches of environmental law. I find that their disclosure would disclose those lawful methods or procedures. The first element of s 37(2)(b) is satisfied.
I note that the (Acting) Information Commissioner found the first element satisfied in her decision dated 19 November 2021:
[20] Having reviewed an unedited copy of the documents and the parties’ submissions, I find the material discloses lawful methods and procedures for detecting, investigating and managing alleged breaches of environmental law. In particular, I consider that the documents demonstrate the procedure the Department undertook in investigating the alleged breach and how it subsequently dealt with the allegation.
The issue with respect to the second element of s 37(2)(b) is whether the disclosure of those documents would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
A necessary consideration with respect to the second element is whether the Department’s methods or procedures are already disclosed. If so, the requirement of causation will not be made out. The disclosure of information that is already publicly available could not and would not cause any prejudice to the effectiveness of those methods and procedures. In this regard, the FOI Guidelines say:
[5.112] The exemption will not apply to routine techniques and procedures that are already well known to the public or documents containing general information. For example, in Re Russo v Australian Securities Commission, the AAT rejected a s 37(2)(b) claim about the (then) Australian Securities Commission’s method of allocating priorities to matters, with the observation that disclosing such a method is on par with disclosing that the respondent uses pens, pencils, desks, chairs and filing cabinets in the investigation of possible breaches of the Corporations Law. On the other hand, the AAT has held that authoritative knowledge of the particular law enforcement methods used (as opposed to the applicant’s suspicion or deduction) would assist endeavours to evade them…
(footnotes omitted)
Mr Chadwick deposed to the second element of s 37(2)(b) in his affidavit dated 5 May 2022 as follows:
[39] It is my genuinely held opinion that if the procedures and methods were disclosed, the effectiveness of those methods and procedures would be significantly diminished in the future. Specifically:
(a)The specific procedure followed by the officers when inspecting a property and investigating where there is an alleged breach of the EPBC Act is not publicly known, nor are the techniques used to detect non-compliance.
(b)If these procedures and techniques were known, there is a risk that landowners could preempt the Department's investigations ahead of any site visit and attempt to cover up evidence or minimise offending conduct to avoid detection of their offending conduct. For example:
i.while it may be known that the Department would use imagery, the exact resolution is not known and this level of information would allow landowners to understand what the imagery captures and what cannot be identified;
ii.such disclosure would allow landholders to know how the Department will consider information obtained during an investigation. This would enable a proponent to undertake illegal activity to evade identification and/or detection of their potentially offending conduct. For example, disclosure of the types of evidence the inspectors are looking for would give other parties the prior knowledge to destroy or move evidence in advance of an inspection;
iii.such disclosure could give landholders who are subject to compliance action insight into how to prepare a site for compliance action, rendering the inspection less effective or ineffective;
iv.landholders would also know what the investigation is not looking for. A landholder could use that information to know that certain behaviour or action is unlikely to be captured by future compliance action. This would undermine compliance and enforcement of national environmental laws more generally; and
v.such disclosure would expose the Department's methods for identifying evidence of particular concerns. For example, the type of evidence relied upon to determine whether something that was endangered was removed.
[40] Additionally, in respect of the individual documents and parts of documents, I make the following comments:
(a)Dot points (3)(d) and (3)(e) in Document 9 discloses the Department's investigative process by detailing how the outcome of the site inspection would inform the next steps of the investigation.
(c)Document 10 discloses who the Department engages with as part of an investigation. The Department's investigative methodologies include identifying lines of enquiry, reflected in who the Department engages with in the course of the investigation.
(d)Document 10a records the Department's thought process around an alleged contravention of the EPBC Act and negotiating an outcome. The document records the options available and the talking points to be adopted in the negotiations. Document 10a further discloses the Department's priorities and goals in the negotiation. Release of this information would impede the Department's ability to negotiate similar outcomes in the future, and could give rise to expectations from other landholders about the use of non-adversarial processes. Understanding this framework could also be used by a landholder to stifle an investigation process.
(e)Document 10b discloses the Department's methodology, including how investigators prepare for meetings with relevant parties, what investigators consider relevant, how the investigation is undertaken, what the investigator's assessment and strategy is at a particular stage in the investigation, and how the investigators engage with senior executives participating in investigations. It also discloses the Department's approach to undertaking enforcement actions. Document 10C is a compliance report, which sets out in some detail the way an investigation is conducted. If landowners had access to this information, it would allow them to understand the process undertaken and take steps to undermine the investigation.
(f)Documents 11 and 12 also contain the proposed approach to an investigation, which similarly, if disclosed, would give insight into the processes and methodology used in EPBC Act investigations and allow landowners to shape their behaviour to minimise non compliance being identified.
(g)Document 13(a) sets out the method for dealing with an identified breach of the law, which gives insight to landowners about how such breaches may be dealt with by the Department. By knowing what options are available, landowners may be able to manipulate their behaviour and influence the outcome of an investigation.
(h)Document 13(b) consists of imagery used as part of the investigation. If landowners knew the resolution of the imagery used and what is able to be shown, this would allow them to know in advance what details can and cannot be identified and shape their behaviour accordingly.
I note the reasons of the (Acting) Information Commissioner in her decision dated 19 November 2021 (with which I agree and adopt) as follows:
[21] I have considered the applicant’s submission that ‘investigative techniques used by the environment department are broadly understood’. However, I am satisfied that the specific methods used are not routine, nor are they known to the public. Further, I consider that given the detailed descriptions of the methods contained in the documents, knowledge of them could reasonably be expected to assist landowners to take steps to evade detection by the Department’s compliance team in the future…
I accept the evidence of Mr Chadwick with respect to each document about the likely prejudice to the effectiveness of the Department’s methods and procedures if the subject documents were disclosed. Mr Chadwick has given probative evidence supported by numerous examples of how knowledge of the Department’s methods and procedures disclosed by these documents would compromise investigations by enabling landowners to pre-empt investigations and attempt to take steps to avoid detection of offending conduct. Mr Chadwick gives evidence with respect to how the information contained in each of the subject documents would likely prejudice the effectiveness of the Department’s methods and procedures.
Mr Chadwick was cross examined with respect to some of the specific documents, in particular the compliance report which is document 10c. Ms Cox says in her affidavit of 2 June 2022 that the information in document 10c is not confidential because of a previously published compliance report which is referred to in her affidavit at paragraph 40 (exhibit 12). Mr Chadwick explains in his later affidavit of 16 June 2022 that this earlier compliance report[19] was unique and related to a different property at Cape York. I find that the public disclosure of the report at exhibit 12 is not a disclosure of the information contained in document 10c. The information in 10c has not been publicly disclosed and remains confidential. There is no basis to suggest otherwise.
[19] Exhibit 12.
Mr Chadwick deposed in his further affidavit dated 16 June 2022 in more detail about how landowners could pre-empt an investigation through understanding the Department’s methodology and how the specifics of that methodology are not publicly available and are not disclosed by the publicly available Compliance Policy.[20] I accept this evidence.
[20] Exhibit 17.
I am satisfied that documents 9, 10, 10a, 10b, 10c, 11, 12, 13a and 13b in Proceeding 9890 are exempt in full under s 37(2)(b).
Documents 2, 4b and 6 in Proceeding 0671
In Proceeding 0671 the Secretary claims that documents 2, 4b and 6 are partially exempt under s 37(2)(b).
Mr Chadwick has reviewed these documents and deposed in his affidavit dated 5 May 2022:
[42] I am satisfied that the parts of these documents currently redacted under s 37(2)(b) of the FOI Act describe procedures and methods employed by the Department's Compliance & Enforcement Division to detect, investigate and manage alleged breaches of environmental law. These documents disclose how the investigators incorporate expert or specialist environmental information into the investigation, how the investigation was undertaken, what information the investigator regards as relevant, what lines of inquiry are being pursued, and who is being spoken to. For example:
(a) Documents 2 and 6 contain information about the Department's procedures and methods to identify and investigate alleged breaches of the EPBC Act, as well as the process that is followed if an alleged breach is identified. In particular, dot point 3 in Document 2 and the same content in Document 6, identifies the Department's methodology for engaging with a proponent and the process followed for various enforcement options and outcomes.
(b) Document 4(b) sets out how the Department deals with compliance and possible outcomes where there is an alleged breach of the EPBC Act.
[43] It is my genuinely held opinion that if information about these procedures and methods were released, the effectiveness of the Department's compliance and enforcement functions would be diminished, including because:
(a) Documents 2 and 6 contain information about engagement with its co-regulator. If this regulator knew this type of information would be made publicly available, it may be reluctant to engage with the Department in the future. Additionally, state regulators may be more reluctant to provide detailed information or intelligence to the Department if there was a risk that this information would be disclosed publicly. Further, releasing communications and information shared between law enforcement agencies (including state regulators) during the course of investigations would expose investigative techniques that are used by investigators.
(b) These documents also state the Department will use imagery. While members of the public may know or assume the Department uses imagery in its investigations, the key features of the land that are captured and monitored through the imagery is not publicly known. This level of information would allow landowners to understand what the imagery captures and what cannot be identified. If made publicly available this may allow landowners to pre-empt and evade detection.
(c) In particular, dot point 3 in Document 2 and the same content in Document 6, identifies the Department's methodology for engaging with a proponent and the process followed for various enforcement options and outcomes. Disclosure of this information, by providing an insight into how the Department undertakes investigations, including how it assesses information, the types of lines of inquiry it pursues, the people it speak to and its approach to analysing information, may allow parties to anticipate the Department's investigative approach and make non-compliance harder to detect, investigate and/or respond to through appropriate compliance and enforcement action.
(d) Document 4(b) outlines a specific possible compliance outcome which may not be offered to all landowners who have breached the EPBC Act. While the department operates within a consistent compliance framework and policy, we tailor out specific compliance response on a case-by-case basis depending upon how the best compliance outcome can be achieved. Disclosure in this case which may set an unreasonable expectation about how the Department would respond to such an allegation. The process one entity goes through in relation to alleged non-compliance may differ to that of another entity due to the circumstances of a case. The use of different compliance tools is approached on a case-by case basis. While there is reference to a publicly available policy in this document, that is just one part of what was being considered in determining what would be a good environmental compliance outcome. The publicly available policy was relevant to one of the possible outcomes which was being considered. This document also contains some details about the process for trying to reach an appropriate compliance and environmental outcome. Making this process publicly available would potentially embolden someone to push for the process discussed in this document to take place, when there is no guarantee that it is appropriate or available in all circumstances - it depends on the breach and the outcomes that are appropriate and being considered.
I have also reviewed these documents and agree with Mr Chadwick that they contain descriptions of the methods and procedures employed by the Department to detect, investigate and manage alleged breaches of environmental law. I note that the extent of the redactions is limited to the information in the documents which, if disclosed, would satisfy s 37(2)(b). I find that their disclosure would disclose those lawful methods or procedures. The first element of s 37(2)(b) is satisfied.
The issue with respect to the second element of s 37(2)(b) is whether the disclosure of the redacted information in those documents would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
I accept the evidence of Mr Chadwick with respect to each document about the likely prejudice to the effectiveness of the Department’s methods and procedures if the subject documents were disclosed. Mr Chadwick has given probative evidence of how knowledge of the Department’s methods and procedures disclosed by these documents would diminish the effectiveness of the Department’s compliance and enforcement functions.
I am satisfied that documents 2, 4b and 6 in Proceeding 0671 are exempt under s 37(2)(b).
Documents affecting operational conduct – s 47E(d)
Mr Chadwick also gives evidence in relation to the same documents which were considered above under s 37(2)(b) for the purposes of an alternative claim for exemption under s 47E(d):
[46] For all of the reasons set out in paragraphs 37 to 40 above, the disclosure of the Department's investigation methods and procedures would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department.
[47] Disclosure of these investigation methods and procedures is not in the public interest as it would allow landowners to understand how the Department investigates such matters and to potentially change their behaviour to thwart or undermine the outcome of an investigation. As the Department is the regulator for the relevant EBPC Act provisions, such behaviours would limit the effectiveness of the Department to identify non-compliance and enforce these laws.
[48] The Department administers a number of pieces of legislation that deal with issues that can be highly emotive and controversial with a range of individuals. For example, in the case of the EPBC Act, this Act provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places and includes the granting of approval for projects that have the potential to have a significant impact on matters of national environmental significance.
[49] Stakeholders on both sides, for example primary producers and environmentalists, often hold strong views on the legislation we administer as well as strong views about how the EPBC Act should be enforced. Some may be concerned and hold very strong views that compliance action is not strong enough to protect threatened or endangered species or other matters of national environmental significance, while others may be equally concerned and have equally strong views that compliance action may hinder significant economic development projects and may have significant financial implications for particular individuals wishing to engage in a particular project in a particular way.
[50] The Department is also a regulator for the enforcement of the laws within its portfolio. Breaches of these laws attract a combination of civil and criminal penalties. Where the penalty is civil, the Department is the sole enforcer of the laws. Even where an Act contains a criminal penalty, the Australian Federal Police does not have the resources to investigate or enforce all potential breaches - in fact their role is very limited in this area. As such, the Department has to assume the role of investigator and enforcer for the vast majority of breaches of the laws it administers.
[51] Some of these enforcement roles are very significant, for example the Department has a crucial role in border protection in respect of biosecurity. In some areas of enforcement, for example biosecurity and wildlife trade, these areas can and have been targeted by organised crime. These laws are only effective if they can be enforced effectively through good enforcement action, particularly where you are dealing with sophisticated and concerted non-compliance. The public interest in regulating these laws is very high.
[52] If the methods and procedures of the Department for law enforcement are made publicly available, it would undermine the Department's ability to regulate, investigate and enforce these very important laws. Anything that undermines enforcement options, and the success of an investigation, has the effect of undermining the enforcement of the underlying laws and thereby undermine the policy objectives that the underlying laws are seeking to achieve. As such, in my view, any information about the Department's investigation processes, methods or procedures, be they high level such as who we speak to, what we look for and the approach we take, to the more granular information around the exact process for a site visit, should not be publicly disclosed.

Under s 47E(d) a document is conditionally exempt if its disclosure would, or could reasonably be expected to, have an adverse effect on the proper and efficient conduct of the operation of an agency. Having been satisfied above under s 37(2)(b) with respect to prejudice to the effectiveness of lawful methods and procedures, it follows for the same reasons that the same documents are conditionally exempt under s 47E(d). The Secretary must give access to the conditionally exempt documents pursuant to s 11A(5), unless access would be contrary to the public interest. Disclosure of conditionally exempt documents is required unless in the particular circumstances and, at the time of the decision, there is, on balance, countervailing harm which offsets the inherent public interest of giving access.[21]
[21] FOI Guidelines at [6.7].
Mr Chadwick gave evidence, and I agree, that it is not in the public interest to disclose these documents because it would undermine the effectiveness of the procedures and methods used by the Department in the investigation of, and dealing with, breaches of Commonwealth environmental legislation. The Secretary relies upon the evidence of Mr Chadwick to support the contention that there is a public interest in the protection of those procedures and methods which would be undermined if the documents in issue were released. Appropriate weight should be given to his evidence.[22]
[22] New South Wales v Ryan (1998) 101 LGERA 246.
Having identified the public interest in not disclosing the documents in question, I must weigh that factor against those factors that favour granting access to the documents. Section 11B(3) provides a non-exhaustive list of factors that favour access:
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.
The factors in ss 11B(3)(a) and (b) favour access. Disclosure of the documents would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities.
I consider that disclosure of the documents would inform debate on a matter of public importance. There is a significant public interest in understanding policy decisions by government in respect of ecological environments that have been listed as “endangered” since the year 2000 and “critically endangered” since 2016.[23]
[23] Cox affidavit dated 2 June 2022 at [8] and [29].
In terms of weighing up the factors for and against granting access to these documents, I give greater weight to the need to maintain confidentiality over these prejudicial documents. I conclude that granting access to these documents would, on balance, be contrary to the public interest.
I conclude that the Secretary’s alternative claim under s 47E(d) is made out.
The personal privacy exemption in s 47F or alternatively under s 47E(c)
Section 47F provides relevantly:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
If the documents are conditionally exempt under s 47F, s 11A(5) provides that access must be given to them unless contrary to the public interest.
The expression “personal information” has the same meaning as it does in the Privacy Act 1988 (Cth) (Privacy Act):[24]
“personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.
[24] Freedom Of Information Act 1982 (Cth) (FOI Act) s 4(1).
Section 11B(3) provides:
Factors favouring access
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.
Section 11B(4) sets out those factors to which regard may not be had:
Irrelevant factors
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.
In working out whether access to a 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 under s 93A.[25] The FOI Guidelines consider further the four factors identified in s 11B(3) as favouring access:
[25] FOI Act ss 11B(5) and 93A(2)(b).
6.18 For example, disclosure of a document that is conditionally exempt under s 47G(1)(a) might, in the particular circumstances, both inform debate on a matter of public importance, and promote effective oversight of public expenditure. These would be factors in favour of disclosure in the public interest. Similarly, it would be a rare case in which disclosure would not promote the objects of the FOI Act, including by increasing scrutiny, discussion, comment and review of the government’s activities.
6.19 The four factors favouring disclosure are broadly framed but they do not constitute an exhaustive list. Other factors favouring disclosure may also be relevant in the particular circumstances. A non-exhaustive list of factors is below.
Public interest factors favouring disclosure
(a) promotes the objects of the FOI Act, including to:
i.inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community
ii.reveal the reason for a government decision and any background or contextual information that informed the decision
iii. enhance the scrutiny of government decision making
(b) inform debate on a matter of public importance, including to:
i.allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official
ii.reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct
iii.reveal deficiencies in privacy or access to information legislation
(c) promote effective oversight of public expenditure
(d) allow a person to access his or her personal information, or
i.the personal information of a child, where the applicant is the child’s parent and disclosure of the information is reasonably considered to be in the child’s best interests
ii.the personal information of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household)
(e) contribute to the maintenance of peace and order
(f) contribute to the administration of justice generally, including procedural fairness
(g) contribute to the enforcement of the criminal law
(h) contribution to the administration of justice for a person
(i) advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies
(j) reveal environmental or health risks of measures relating to public health and safety and contribute to the protection of the environment
(k) contribute to innovation and the facilitation of research.
(footnotes omitted)
The FOI Guidelines note that the FOI Act does not list any factors weighing against disclosure:
6.20 … However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the application of public interest factors that may be relevant in a particular case.
6.21 Citing the specific harm defined in the applicable conditional exemption is not of itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.
6.22 A non-exhaustive list of factors against the disclosure is provided below.
Public interest factors against disclosure
(a) could reasonably be expected to prejudice the protection of an individual’s right to privacy, including where:
i.the personal information is that of a child, where the applicant is the child’s parent, and disclosure of the information is reasonably considered not to be in the child’s best interests
ii.the personal information is that of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household) and the disclosure of the information could reasonably be expected to affect the deceased person’s privacy if that person were alive
iii.the personal information is that of a government employee in relation to personnel management and the disclosure of the information could be reasonably be considered to reveal information about their private disposition or personal life. …
(b) could reasonably be expected to prejudice the fair treatment of the individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
(c) could reasonably be expected to prejudice security, law enforcement, public health or public safety
(d) could reasonably be expected to impede the administration of justice generally, including procedural fairness
(e) could reasonably be expected to impede the administration of justice for an individual
(f) could reasonably be expected to impede the protection of the environment
(g) could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h) could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
(j) could reasonably be expected to prejudice the competitive commercial activities of an agency
(k) could reasonably be expected to harm the interests of an individual or group of individuals
(l) could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General
(m) could reasonably be expected to discourage the use of the agency’s access and research services
(n) could reasonably be expected to prejudice the management function of an agency
(o) could reasonably be expected to prejudice the effectiveness of testing or auditing procedures
(footnotes omitted)
Mr Chadwick deposed in his affidavit dated 5 May 2022 in relation to a claim under s 47F:
[56] I note that the only names that have been redacted under s 47F and are in dispute are those of junior departmental and ministerial officers who are below SES level. The Department has not redacted the names of SES level staff. I understand that the contact details for these junior departmental and ministerial officers have not been sought as part of this request.
[57] SES staff are senior members of the Australian Public Service (APS). The seniority of this role is acknowledged in the Public Service Act 1999 (Cth). Section 35 of this Act states that the functions of the SES are to (among other things) provide APS wide strategic leadership and to provide professional/specialist expertise, policy advice, program or service delivery, and regulatory administration at a high level. The terms of employment for SES staff are very different than those for staff who hold a more junior position.
[58] Staff who are not SES, are classified at either the APS officer level (which are graded up to APS 6) or at the Executive Level (EL1 or EL2). An EL2 is often referred to as a Director. These staff all report to persons in SES roles. Ultimately, SES staff are, and are held to be, responsible for any activity within their Branch, including any activity carried out by non-SES staff.
[59] It is my experience that SES staff are expected to be publicly identifiable. Their names are made publicly available on the Department directory, they attend Senate Estimates hearings on behalf of the Department, and they are identified in publications as the persons responsible for particular business units. I accept that part of my role as Assistant Secretary involves public stakeholder engagement and accountability.
[60] In general terms, SES staff hold much more responsibility for delegations under legislation and for financial approvals.
[61] In my Branch, the majority of decision-making powers are held by SES staff (either myself as the Assistant Secretary or SES officers more senior than me, for example the First Assistant Secretary or the Deputy Secretary). Even where decisions are made by non-SES staff, it is ultimately SES officers who will be held responsible for the outcome of these decisions because of the hierarchical structure of the Department.
[62] Similarly, matters that give rise to a higher level of risk will require a higher level of clearance within the Department. This includes all operational work and workplace safety matters. In the Department's Compliance and Enforcement Division, it is generally the case that staff in positions junior to the SES will work on investigations. However, once an investigation is completed, the SES staff in the Division are accountable for the outcome.
[63] Each of the officers whose names the Department proposes to redact were employed in positions below SES level at the relevant time. Staff whose names have been redacted were from the Environment Compliance Branch (formerly Office of Compliance), the Assessment Branches and Biodiversity Conservation Division.
(a) A compliance officer engages with a variety of stakeholders to detect, deter and disrupt noncompliance of national environmental laws. This is done through the promotion of voluntary compliance and through the use of a range of monitoring, investigation and enforcement activities;
(b) An assessments officer considers project activities under the EPBC Act and/or the Sea Dumping Act. They undertake assessments of projects and work closely with project proponents, state and territory governments, other Australian Government departments and non-government stakeholders; and
(c) A project officer from the Biodiversity Conservation Division is responsible for working with the Threatened Species Scientific Committee, other experts and stakeholders to: assess ecological communities for assessment of their conservation status and potential listing as threatened under the EPBC Act; drafting conservation advices and recovery plans in line with EPBC Act requirements for those documents, and providing other advice as requested, to guide the protection and recovery of threatened ecological communities.
…..
[65] It is my genuinely held opinion that disclosure of these names will not contribute to the increased scrutiny of government activities. I do not see that the public has any interest or will derive any benefit from the public release of these names.
[66] It is the SES staff who are responsible for, and publicly accountable for, the matters that are the subject of the documents in question. Junior level staff are ultimately accountable for their conduct and decisions to SES-level staff. The Minister is also publicly accountable for the actions of the Department. I do not agree that names of a employees in an APS or EL position adds any value to an assessment of the matters raised in the documents.
[67] The names of these junior staff members are not well-known publicly outside the Department. As far as I am aware their names are not known outside of the Department to be associated with any of the matters or events contained in the relevant documents.
[68] Given my view that it is the SES officers who have responsibility and accountability for decisions within the Branch, there is negligible benefit of releasing the more junior staff names. It does not assist with government accountability or to increase scrutiny of government activities. This negligible benefit is far outweighed by the risk of harm to those staff by the release of their personal information, which I have discussed further below.
In these applications, the Secretary has claimed exemptions over the names of some Department and Ministerial staff who are part of the APS. Names and email addresses have been redacted from the documents in issue which have otherwise been provided to Ms Cox. However, not all names have been redacted. The Secretary has decided to disclose the names of those employees who are engaged by the APS as SES level.
Ms Cox contends that there is no legislative basis for the distinction made by the Secretary between SES and non-SES staff. In particular, Ms Cox relies upon the FOI Guidelines which say:
Information about agency employees included in documents because of their usual duties or responsibilities
6.152 Documents held by agencies or ministers often include personal information about public servants. For example, a document may include a public servant’s name, work email address, position or title, contact details, decisions or opinions.
6.153 Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.
6.154 When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt.
6.155 In Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85, where the agency raised the concern that disclosure would affect the personal safety of its officers, the Information Commissioner said that there is no apparent logical basis for distinguishing between the disclosure of SES officers and other officers’ names, particularly where the purported concern is that disclosure could affect personal safety.
6.156 A document may, however be exempt for another reason, for example, where disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person (s 37(1)(c)). In addition, where an individual has a propensity to pursue matters obsessively and there is no need for them to contact a particular public servant in the future, disclosure of the public servant’s name may be unreasonable.
6.157 There needs to be careful consideration of the exemption where the personal information does not relate to the public servant’s usual duties and responsibilities. For example, if a document included information about an individual’s disposition or private characteristics, disclosure is likely to be unreasonable. This would generally include the reasons a public servant has applied for personal leave, information about their performance management or whether they were unsuccessful during a recruitment process.

Ms Cox says that based on [6.153] of the FOI Guidelines, it would not be unreasonable to disclose all names of public servants “unless special circumstances existed”.
There is no express requirement in s 47F to establish special circumstances when considering whether disclosure of personal information would be unreasonable. The FOI Act does provide some guidance as to what is unreasonable in s 47F(2), which requires the agency or Minister to have regard to certain matters when determining whether disclosure would be unreasonable. Under s 93A(2) I must have regard to the guidelines issued by the Information Commissioner, but I am not bound by them because they are not legislative instruments.[26] Instead of applying a test based on special circumstances, I will determine the question of unreasonableness by having regard to the matters in s 47F(2) namely:
(a)the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources; and
(d)any other matters that the agency or minister considers relevant.
[26] See Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [87]
Other matters that have been considered relevant include:[27]
(a)the nature, age and current relevance of the information;
(b)any detriment that disclosure may cause to the person to whom the information relates;
(c)any opposition to disclosure expressed or likely to be held by that person;
(d)the circumstances of an agency’s collection and use of the information;
(e)the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act;
(f)any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information; and
(g)whether disclosure of the information might advance the public interest in government transparency and integrity.
[27] FOI Guidelines at [6.143]
I will now apply the law to the facts.
The information which has not been disclosed include the names of non-SES staff who work within the Department. Those names are clearly personal information for the reasons given by Deputy President Forgie in Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [36], and as recognised in the FOI Guidelines at [6.130]. The question for determination is whether the disclosure of those names would be unreasonable, taking into account the matters in s 47F(2) which include the extent to which the information is well known or publicly available. The evidence from Mr Chadwick and Ms Stobutzki is that the names of the non-SES staff are not well known publicly and that their names are not known outside of the Department to be associated with any of the matters or events contained in the relevant documents. Further, their names are not made publicly available on the Department directory; unlike the SES staff who have a public profile. I accept this evidence which weighs in favour of a finding that disclosure of these names would involve the unreasonable disclosure of personal information.
There is also evidence that the power to make decisions rests primarily with the SES staff who are responsible for the decisions that are made. The non-SES staff may participate in the process of decision making but they are not held responsible for the decision made.[28] Disclosing the names of these non-SES staff would not enhance the scrutiny of government decision making, particularly in circumstances where the names of those responsible for the decisions have been disclosed. Disclosing the names of non-SES staff would also have the likely effect of deterring the full and frank exchange of ideas in the decision-making process by those non-SES staff because they will be less likely to engage in that exchange if their ideas will be later disclosed.
[28] Stobutzki affidavit at [35].
In determining whether disclosure is unreasonable I must take into account all the circumstances,[29] including that the substance of these documents have been disclosed and the names of SES staff have been disclosed. It is difficult to see what more could be added by disclosing the names of non-SES staff. An example is document 6 in Proceeding 9890, which is an email chain of internal Department correspondence. The first email is dated 28 February 2017 from Monica Collins, Assistant Secretary Compliance and Enforcement, to redacted recipients but copied in to Gordon de Brouwer and Dean Knudson (who I assume to be SES staff). The email is fully disclosed except for the names of non-SES staff, email addresses and phone numbers.[30] The fully disclosed content of the email relates to and provides general information on grasslands, compliance investigation background and compliance inspection. The responding email is dated 2 March 2017 and is addressed to Monica Collins and sent by a redacted non-SES staff Department member. The content of the responding email is fully disclosed. There are further emails in the chain dated 6 and 7 March 2017, of which the contents are fully disclosed except for the redactions of non-SES staff names and email addresses. All the material that could be possibly relevant to government operations and the scrutiny of government decision making has been disclosed in this example.
[29] Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51].
[30] Ms Cox is not seeking access to email addresses or phone numbers which have been redacted: see transcript page 106 lines 4 – 5.
Another example is document 7a in Proceeding 9890, which is an internal Department briefing document. The name and telephone number of the contact officer has been redacted. There is a note that the document has been “Cleared by (SES level): Monica Collins”. The content of the document is otherwise fully disclosed. Disclosing the name of the contact officer would be unreasonable in the circumstances of the disclosure of the responsible SES officer and the disclosure of the whole of the balance of the document.
Ms Stobutzki was cross examined with respect to documents in Proceeding 9890, including document 8 (exhibit 15), document 13 (exhibit 11) and document 22 (exhibit 14). The suggestion was that the Department officer whose name was redacted was a senior officer carrying out significant duties. Ms Stobutzki maintained the position that the reason for their names being redacted was because these persons were not at the SES level. She said that those persons “still don’t have the level of delegation and responsibility that an SES has”.[31] I accept this evidence and would add that the names of those non-SES staff are not well known and are not publicly available.
[31] Transcript p 146 lines 38-39.
I also take into account that the disclosure of a person’s name would create an unnecessary risk that the person would be contacted directly by persons aggrieved by the decision making processes of the Department.
Having had regard to the fact that non-SES staff names are not well known or publicly available, I consider based on the evidence of Mr Chadwick and Ms Stobutzki that the disclosure of non-SES staff names would be an unreasonable disclosure of personal information. For the same reasons as set out above, I find that access to the names of non-SES staff would, on balance, be contrary to the public interest.
DECISION
In Proceeding 9890, the decision of the Tribunal is to set aside the decision of the Information Commissioner and substitute a finding that:
(a)Documents 1, 2, 3, 4, 4a, 5, 6, 7, 7a, 8, 9a, 13, 14, 14d, 15, 16, 17, 18, 18a, 19, 20, 21, 22, 23, 24, 25 and 26 are exempt in part under s 47F, or in the alternative, s 47E(c);
(b)Documents 9, 10, 10a, 10b, 10c, 11, 12, 13a and 13b are exempt in full under s 37(2)(b), or in the alternative s 47E(d); and
(c)Document 22a is exempt in full under s 47C.
In Proceeding 0671, the Tribunal affirms the decision under review.
In Proceeding 0672, the Tribunal affirms the decision under review.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

.....................[sgd]........................
Associate

Date of Decision: 9 March 2023

Dates of Hearing

Counsel for the Applicant

20 and 21 June 2022, and 12 September 2022

Mr Geoffrey Watson and Ms Diana Tang

Counsel for the Respondent
Mr Richard Knowles KC and Mr Nicholas Swan

Solicitor for the Respondent: King & Wood Mallesons

Date of Decision:	9 March 2023
Dates of Hearing Counsel for the Applicant	20 and 21 June 2022, and 12 September 2022 Mr Geoffrey Watson and Ms Diana Tang
Counsel for the Respondent	Mr Richard Knowles KC and Mr Nicholas Swan
Solicitor for the Respondent:	King & Wood Mallesons