Department of Premier and Cabinet v Birrell

The High Court of Australia heard an application by the Department of Premier and Cabinet, represented by Mr. H.C. Berkeley, QC, and Mr. M.J. Grennan, against the respondent, Mr. Birrell, represented by Mr. R.K.R. Alston and Mr. T.P. Tobin. The dispute concerned an application made by Mr. Birrell under the *Freedom of Information Act* for access to documents, which were identified as results of public opinion polls held by the Department. The Department had initially refused access under section 28 of the Act, arguing the documents were prepared by a minister for submission to Cabinet.

The legal issues before the High Court revolved around the interpretation of two legislative provisions: section 38 of the *Freedom of Information Act* and section 32 of the *States Interpretation of Legislation Act*. Specifically, the court was required to determine whether a regulation, which prohibited public service officers from disclosing certain types of information, applied "specifically to information of a kind contained in the document" for the purposes of section 38 of the *Freedom of Information Act*. This question arose after the Full Court had previously found that the documents, while prepared on a minister's instructions by a consultant, were not "prepared by a minister" within the meaning of section 28.

The applicant argued that the regulation, which defined "enactment" to include regulations, did not apply specifically to the *kind* of information contained in the documents. The court considered that information can be characterised in various ways, including by its subject-matter (e.g., Cabinet decisions) or by how it came into existence (e.g., prepared by a minister). The core of the dispute was whether the regulation's prohibition on disclosure was sufficiently specific to the *nature* of the information itself, rather than merely its origin or purpose.