Department of State Development v Pisoni - [2017] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
DEPARTMENT OF STATE DEVELOPMENT v PISONI
[2017] SADC 34
Judgment of His Honour Judge Tilmouth
6 April 2017
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Departmental appeal against a determination of the Ombudsman to release a document claimed to be exempt from disclosure as a Cabinet document.
Held: The document is not an exempt document protected by Cabinet confidentiality, and there was prior disclosure of a portion of the material in any event. Decision of the Ombudsman affirmed.
Freedom of Information Act 1991 (SA) s 3(1)(a), s 4(1), s 12, s 20, s 28(1)(d), s 34, s 39, s 40, s 40(8), Schedule 1; Statutes Amendment (SACAT) Act 2014 No 26 of 2014; Commonwealth v Northern Land Council (1993) 176 CLR 604; The Annotated Constitution of the Commonwealth of Australia 1901 Quick and Garran; District Court Act 1991 (SA) s 42E(3), s 42F(a); Freedom of Information Act 1982 (Vic) s 28(1)(d); McKinnon and Department of Finance and Deregulation [2011] AATA 469; Re Porter and Department of Community Services and Health (1988) 14 ALD 403; Re Toomer [2003] AATA 1301; Re Mildenhall (No 2) (1994) 8 VAR 478; Re Asher v Department of Premier and Cabinet (2002) VCAT 499; Smith v Department of Sustainability and Environment [2006] VCAT 1228; Birrell v Department of Premier and Cabinet (No 3) (1987) 2 VAR 32; Re Rae & Department of Prime Minister & Cabinet (1986) 12 ALD 589; Re Porter and Department of Community Services and Health (1988) 14 ALD 403; Re Ryan the Department of Infrastructure [2004] VCAT 2346; McGuirke v Director-General, The Cabinet Office [2007] NSWADT 9; Re Burchill & Department of Industrial Relations (1991) 23 ALD 97; Re Boehm & Department of Industry, Technology and Commerce (1985) 7 ALN N186; National Parks Association of NSW Inc v Department of Lands [2005] NSW ADT 124; Hudson v Department of Premier, Economic and Trade Development, Re Hudson (1993) 1 QAR 123; Re Anderson and Department of Special Minister of State [1986] AATA 81; Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589, referred to.
Secretary to the Department of Infrastructure v Louise Asher MP (2007) 19 VR 17; Rann v SA Water and Baker (No 2) (1996) 187 LSJS 438, applied.

DEPARTMENT OF STATE DEVELOPMENT v PISONI
[2017] SADC 34
Introduction

This is an appeal from a determination of the Ombudsman ordering the release to Mr Pisoni a number of documents in the possession of the Department of State Development.[1] Only one such document remains the subject of this appeal. At issue is whether it is protected by Cabinet confidentiality. These reasons explain why the appeal must fail and the decision of the Ombudsman affirmed.
[1] Exhibit PR8, p 24 para [78].
The appeal process
The appeal comes to this court pursuant to s 40 of the Freedom of Information Act 1991 (SA) (the FOI Act). This provided at relevant times that an agency aggrieved by a determination, may ‘with the permission of the District Court, appeal against the determination’. This appeal was instituted before s 40 was amended to vest the appeals jurisdiction in the South Australian Civil and Administrative Tribunal.[2]
[2] Section 60 of the Statutes Amendment (SACAT) Act 2014, No 26 of 2014 effective from 11 December 2016.
At the outset of the appeal, the requisite permission was granted and was not opposed by Ms Walker, counsel for Mr Pisoni. Since the appeal is to the District Court, the conduct and disposition is governed by the Administrative and Disciplinary provisions of the District Court Act 1991 (SA).
Application for Freedom of Information
The process of disclosure commenced with an application by Mr Pisoni for access to the agenda and minutes of meetings of the Economic Development Board (the Board), as provided for in s 12 of the FOI Act. The Board is for relevant purposes an ‘agency’ within the meaning of s 4(1) of the FOI Act. It is an independent advisory body charged by the Executive arm of the South Australian Government, with providing ‘high level strategic and policy advice to Government on economic development and industry issues’.[3] The Board comes under the umbrella of the Department of State Development (the Department) for administrative purposes.
[3] Exhibit PR8, p 34 para [2].
Mr Pisoni is the State Member for the seat of Unley in the House of Assembly. As Shadow Minister for Education, Employment, Skills and Training and for Multicultural Affairs at the time of making the application, he no doubt held a legitimate interest in obtaining the material sought. The Board refused access to the documents by its accredited Freedom of Information officer.[4] Mr Pisoni sought an external review pursuant to s 39 of the FOI Act, the relevant body for that purpose being the Ombudsman. The Ombudsman made the decision to release various documents on 15 February 2016.
[4] Exhibit PR2.
The material in dispute
The ambit of the appeal is relatively narrow. It pertains to minutes of the Board of 6 December 2013, designated by the parties as document 5.[5] The material in dispute is a short redacted extract from Item 6 therein, entitled ‘Infrastructure Investment’.[6] The redacted version provided to Mr Pisoni was this:[7]
[5]    Exhibit PR8, para 16, p 28, Item 5.
[6]    Exhibit PR9, pp 85-89.
[7]    Exhibit PR9, pp 87-88.
6. (b) Regional Infrastructure (Ports)
The Board:
a.   noted the outcomes from a meeting with Minister Koutsantonis, Raymond Spender and Corinne Namblard on 22 November 2013;
b.   “Exempt Clause 1’
c.   “Exempt Clause 1’
EBD Project Team:    Corinne Namblard** supported by Catherine Jamieson.
The Court was provided a copy of the entire minute in a sealed affidavit.[8] This was read in the privacy of Chambers at the request of the parties. Subsequent to the hearing, Counsel for the Board Ms Seal, advised that the Department now limits the claim for exemption to parts of items 6(b)b and 6(b)c that remain redacted, to the extent attached to her communication of 3 March 2017.
[8] Described in the record as the closed affidavit of Phillip Vaughan Reichelt on 28 September 2016.
Cabinet Confidentiality
Cabinet is the dominant political organ of Executive Government in the Westminster system. It is responsible for Government policy, and is entirely a creature of convention. Its Ministers are collectively responsible for the decisions it makes, so Ministers are effectively taken by convention to be of one mind and voice. Walter Bagehot in the ‘English Constitution’[9] explains the separation of the Executive and Legislative arms of government ‘through the agency of Cabinet … [as] … the latent essence and effective secret of the English Constitution’.[10] The protection of Cabinet confidentiality is accepted as a necessary feature of the Westminster systems and as ‘an important element in our system of government’: Commonwealth v Northern Land Council.[11]
[9] 2^nd Edition pp 10-11.
[10] Quick and Garran, The Annotated Constitution of the Commonwealth of Australia, 1901 Angas and Robertson, pp 382-387.
[11] (1993) 176 CLR 604, 615-616.
The protection is afforded on the basis that disclosure may precede the formal announcement of Cabinet decisions, and may diminish adherence to Cabinet responsibility by revealing the individual opinions of Cabinet members. As the High Court observed in Commonwealth v Northern Land Council:[12]
It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited.
[12] (1993) 176 CLR 604, 616
The Freedom of Information Regime
Australia has comprehensive Freedom of Information legislation in all States and Territories.[13] It is unsurprising that exemptions for Cabinet documents became a universal feature of the Freedom of Information laws in this country. All deal in relatively comparable terms with the subject.
[13] Freedom of Information Act 1982 (Cth) s 34(1)(a); Freedom of Information Act 1989 (ACT) s 35(1)(a); Information Act 2002 (NT) s 45(1)(a)(i); Government Information (Public Access) Act 2009 (NSW) Sch 1 cll 2(1)(b), 2(1)(c) and 3(1)(b); Right to Information Act 2009 (Qld) Sch 3 cll 2(1)(a), 3(1)(a), 3(1)(b); Right to Information Act 2009 (Tas) ss 25(1)(b), 25(3), 26(1)(b), 26(3); Freedom of Information Act 1982 (Vic) s 28(1)(b); Freedom of Information Act 1992 (WA) Sch 1 cl 1(1)(b) (recommendations prepared for possible submission to an Executive body).
Section 12 of The FOI Act furnishes a legally enforceable right of access to Government agency documents. A primary object of the FOI Act is ‘to promote openness in Government and accountability of Ministers of the Crown … and thereby enhance respect for the law and further the good government of the State’: s 3(1)(a). However s 20 requires those agencies (of which the Department of State Development is one) to refuse access to those documents which are ‘exempt’.
Schedule 1 to the FOI Act contains the exception for Cabinet documents in these terms:
Schedule 1—Exempt documents
Part 1—Restricted documents
1—Cabinet documents
(1) A document is an exempt document—
(a)if it is a document that has been specifically prepared for submission to Cabinet (whether or not it has been so submitted); or
(b)if it is a preliminary draft of a document referred to in paragraph (a); or
(c)if it is a document that is a copy of or part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(e)if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet; or
(f)if it is a briefing paper specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted to Cabinet.
It is solely clause 1(1)(e) that is in issue here. Essentially, two basic points were pursued by Ms Seal on behalf of the Department, to which it is now necessary to turn.
Failure to consider the application of clause 1(1)(e) of Schedule 1
It must be recognised that when the Ombudsman reviewed the decisions of the accredited officer, a relatively large number of documents were in issue. These were summarised in his reasons and comprised either Minutes or Agendas of the Board.[14] The Ombudsman considered whether the documents would disclose information intended for discussion by Cabinet, or would alternatively disclose information concerning the deliberations or decisions of Cabinet, either presently or in the future.[15] Next, he expressly ‘considered whether or not any of the documents are exempt under clause 1(1)(e)’.[16]
[14] Exhibit PR8, para16, p28.
[15] Exhibit PR8, para 33 p34.
[16] Exhibit PR8, paras 34, p34.
Having done so the Ombudsman was satisfied the Board agendas described as Document 2 were exempt, as they referred to past Cabinet deliberations. It must on the other hand be conceded that he did not in so many words, refer to the subject minutes. However he dealt with the remaining items generically in this way:[17]
41.I am not satisfied that any of the other documents ‘contain matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet’, as required by clause 1(1)(e). Although some of the documents refer to possible future events concerning Cabinet, neither the agency nor CT2 have provided any evidence to show that these items were actually the subject of Cabinet deliberations or decisions.
42.I am therefore not satisfied that the remaining documents, or the remaining parts of document 2, are exempt under clause 1(1)(e).
[17] Exhibit PR8, paras 41-42, p35, ‘CT2’ refers to the cancellation at para 27, second last bullet point.
His ultimate conclusion was this:[18]
78.     In light of my views above:
.       I am satisfied that document 2 is exempt under clause 1(1)(e)
. I consider it practicable to release document 2 after deleting item 8.b.b, in accordance with section 20(4) of the FOI Act
.      I vary the agency’s determination with respect to application 1 to enable document 2 to be released in part (that is, after deleting item 8.b.b), and documents 3 to 6 to be released in full.
.      I reverse the agency’s determination with respect to application 2. Documents 7 to 14 should be released in full.
The third bullet point just quoted refers to the generic list of documents noted earlier, which clearly includes the subject document number 5.[19] When the determination is considered in context, it is entirely explicable that it was dealt with in this way rather than referencing them all individually.
[18] Exhibit PR8, pg39.
[19] Exhibit PR8, para 16 p28.
It is not therefore demonstrated that the Ombudsman erred in failing to consider the exempt status of Document 5. Had he so failed, the question remains in any event whether the redacted portions fell into the Cabinet exemptions contained in Appendix 1 of the FOI Act. If they do, clearly that would furnish ‘cogent reasons’ to rescind the decision of the Ombudsman, for failing to give effect to the mandatory exemption provisions: s 42E(3) District Court Act 1991 (SA).
Characterisation – ‘concerning any deliberation or decision of Cabinet’
The terms of Schedule 1 clause 1(1)(e) of the Act are reproduced above. It is cast in wide terms in the protection it affords Cabinet deliberations or decisions, in-as-much as it contains the additional words ‘concerning any’, which are not present in any of the parallel provisions in other Australian jurisdictions. The protection is an absolute one, in that for example there is no requirement to establish disclosure would be contrary to the public interest, or that the failure to disclose is unreasonable.[20]
[20] See Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301, [96]; Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361, [74]; and Re Anderson and Department of Special Minister of State (No 2) [1986] AATA 81; (1986) 4 AAR 436, [26]-[27] and McGuirk v Director General, The Cabinet Office [2007] NSWADT 9 at [37].
It is submitted on behalf of the Department that disclosure of the revised redacted version would make it:[21]
… possible to ascertain from the determination what if any consideration was given to the application of this clause to the parts of document 5 relevant to this appeal.
[21] Appellant’s summary of argument, para 23.
It is an established principle that documents prepared for future submission to Cabinet can be protected from disclosure: National Parks Association of NSW Inc v Department of Lands.[22] The South Australian provision is interpreted to apply to ‘any deliberation or decision’ of Cabinet, irrespective of the temporal proximity of the material in question to the requisite determination or decision of Cabinet: Rann v SA Water and Baker (No 2).[23]In contrast, the comparable Queensland provision is construed to apply ‘only to documents created contemporaneously with, or subsequent to active discussion and debate within Cabinet’: Hudson v Department of Premier, Economic and Trade Development, Re Hudson.[24] It is this difference in interpretation to which the additional words in the South Australian provision ‘concerning any’are directed.
[22] [2005] NSWADT 124, [19].
[23] (1996) 187 LSJS 438, 443, Chief Judge Brebner.
[24] (1993) 1 QAR 123, [39].
There is highly persuasive, and if not binding authority, to the effect that a document merely revealing a description of an event placed before Cabinet is not protected. Thus, in Secretary to the Department of Infrastructure v Louise Asher MP, Buchanan JA wrote:[25]
That is not to say that a document supplied to Cabinet for its consideration could never be exempt as disclosing a deliberation of Cabinet. It all depends upon the terms of the document. At one end of the spectrum, a document may reveal no more than that a statistic or description of any event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular point of view.[26] The former would say nothing as to Cabinet’s deliberations; the latter might say a great deal. In my view, in the present case the reports were in the former, rather than the latter, category. The reports revealed information about the performance and requirements of government departments, but said nothing about the deliberations of Cabinet.
[25] (2007) 19 VR 17, [2007] VSCA 272, [8].
[26] Cf Re Smith and Department of Environment and Sustainability [2006] VCAT 1228.
Vincent JA considered the question is ‘what the document itself would convey in the circumstances’,[27] and providing that there is nothing in the document enabling one to ‘draw any inferences as to what may have been the subject of deliberation or decision’, the document is unprotected.[28] Redlich JA was of a similar view in Secretary to the Department of Infrastructure v Asher. His Honour considered there was nothing on the face of the subject documents permitting ‘the conclusion that their disclosure would involve disclosure of any “deliberation” or “decision” of the Cabinet.’
[27] Secretary to the Department of Infrastructure v Asher [50].
[28] [51].
The provision considered in Asher was s 28(1)(d) of the Freedom of Information Act 1982 (Vic). This provided:
A document is an exempt document if it is —
…
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet other than a document by which a decision of the Cabinet was officially published.
The operative words of this section are for practical purposes identical to Schedule 1, Clause (1)(e) of the FOI Act; ‘disclose information consisting any deliberation or decision of Cabinet’. There is no apparent reason to think the additional words ‘any information’, add any more to the meaning or application of the exemption in the present respect, other than in the way considered in Rann v Water and Baker (No 2).[29]
[29] (1996) 187 LSJS 438.
This view is consistent with previous authority For instance in McKinnon and Department of Finance and Deregulation,[30] the Tribunal drew a critical distinction between ‘the subject matter of Cabinet discussions and the discussions themselves’. The provision there under consideration was s 34 of the Freedom of Information Act 1982 (Cth) as it then stood. So far as is presently relevant, this provided:
1. Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
…
(a) Would disclose 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 an agency or Minister or of the Government of the Commonwealth …
There are of course differences between this provision and that pertaining here. However the core subject is identical, namely ‘deliberation’. Likewise in Re Anderson and Department of Special Minister of State,[31] the Tribunal drew the distinction ‘between a document as such, and the information which … disclosure … would reveal’.
[30] [2011] AATA 469 at [38]-[39].
[31] [1986] AATA 81; (1986) 4 AAR 436, 441-2, [21].
Accordingly, the noun ‘deliberation’ does not capture material presented to Cabinet but not discussed or considered by it as to its merits: Re Rae and Department of Prime Minister and Cabinet,[32] or the debate in Cabinet by way of deliberation or formal decision making process: Re Porter and Department of Community Services and Health.[33] That is to say, speaking generally the protection is aimed at preventing the disclosure of documents that shed light on the decision making process in Cabinet.
[32] (1986) 12 ALD 589, 602.
[33] (1988) 14 ALD 403, 407.

Expressed in other ways ‘deliberation’ is referable to Cabinet’s ‘thinking processes’: Re Toomer,[34] the content of discussions taking place in the Cabinet room: Re Mildenhall (No 2),[35] what Cabinet ministers ‘had on their minds’: Re Asher v Department of Premier and Cabinet,[36] Smith v Department of Sustainability and Environment,[37] the content of Cabinet consideration with a view to making a decision: Birrell v Department of Premier and Cabinet (No 3),[38] or ‘the disclosure of contents … concerning the process of deliberation or decision-making’: McGuirke v Director-General, The Cabinet Office.[39]
[34] [2003] AATA 1301, [96].
[35] (1995) 8 VAR 478, 488.
[36] (2002) VCAT 499, [222].
[37] [2006] VCAT 1228, [23].
[38] (1987) 2 VAR 32, [34].
[39] [2007] NSWADT 9.
It must follow that a ‘deliberation’ does not encompass material not discussed or considered by Cabinet: Re Rae and Department of Prime Minister & Cabinet,[40] or the formal decision made by Cabinet simpliciter: Re Porter and Department of Community Services and Health.[41] That is, the protection is aimed at preventing the disclosure of information that sheds light on Cabinet discussions and decision-making processes. This is the gist of the decision of the Victorian Court of Appeal in Secretary to the Department of Infrastructure v Louise Asher MP (discussed above). As expressed by Buchanan JA, disclosure involves ‘what use … Cabinet made of any part of the [material]’, and ‘the manner in which Cabinet deals with a topic’, or ‘Cabinet’s treatment of a subject matter’.[42] For that reason the exemption applies to the disclosure of the content of any deliberation or decision of the Cabinet: Re Ryan and the Department of Infrastructure.[43]
[40] (1986) 12 ALD 589, 602.
[41] (1988) 14 ALD 403, 407.
[42] Above [5], [6].
[43] [2004] VCAT 2346, [44]-[49].
Resolution
In the present case, neither the redacted nor the revised redacted versions of document 5 items 6(b)b and (b)c contain any reference to the content of information concerning a deliberation or decision of Cabinet, in the senses discussed above. Rather, that material merely contains a description of subject matters to be placed before Cabinet. Furthermore, the revised redacted version simply contains aspirational or expectational views of the Board as to the outcome of a future Cabinet meeting, which could hardly be said to ‘disclose information concerning any deliberation or decision of Cabinet’. For these reasons the second basis of attack on the determination of the Ombudsman must fail.
Prior disclosure
There is one further matter. In the documents that were released, there is a statement contained in the Minutes of the Board also of 6 December 2013, as item 6(c) reproducing items 6(b)c of the redacted minutes:[44]
(b) Regional Infrastructure (Ports)
c.agreed that Corinne Namblard would provide an update to the Board in early 2014 shortly after the Cabinet submission has been approved and the taskforce has been established.
This reference is in identical terms, to the whole of the first line of item 6(b)(c) up to ‘in early 2014’. There is nothing in the description in these references that records other than the fact that a Cabinet submission was since made, which was not the case when the Ombudsman considered the matter. It contains nothing about the content of the discussions held in Cabinet.
Accordingly, the appeal must fail in part on the additional ground that the substance of the redacted material in item 6(b)c was disclosed in the passage quoted above taken from other Minutes of the Board. As noted in Re Burchill & Department of Industrial Relations,[45] Cabinet protection no longer applies when ‘disclosure … has already taken place’. As was expressed in Re Boehm & Department of Industry, Technology and Commerce,[46] ‘what has been disclosed cannot be disclosed again’.
[44] PR9, p 91 and PR9 88 respectively.
[45] (1991) 23 ALD 97, 107.
[46] (1985) 7 ALN N186, at N190.
Conclusion and Orders
The formal orders of the Court are therefore:
1The decision of the Ombudsman made on 15 February 2016, is affirmed to the extent that it relates to items 6(b)(b) and (c) of Document 5: s 42F(a) District Court Act.
2The Department of State Development is ordered to pay Mr Pisoni’s ‘reasonable costs’ pursuant to s 40(8) of the Freedom of Information Act.
3There be a stay of 30 days from the date hereof to enable the Department or the Minister responsible (as the case may be) to consider these reasons.
4The closed affidavit be returned to Ms Seal.