Gothe-Snape; Chief Executive Officer, Services Australia and
[2021] AATA 2710
•4 August 2021
Gothe-Snape; Chief Executive Officer, Services Australia and [2021] AATA 2710 (4 August 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2020/3899
Re:Chief Executive Officer, Services Australia
APPLICANT
AndJackson Gothe-Snape
RESPONDENT
Appeal from: [2020] AICmr 19
DECISION
Tribunal:Deputy President Boyle
Date:4 August 2021
Place:Perth
The decision of the Australian Information Commissioner in Jackson Gothe-Snape and Services Australia (Freedom of Information) [2020] AICmr 19 (1 June 2020) is varied to find that the Document is exempt under s 34(1)(c) of the FOI Act.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
FREEDOM OF INFORMATION – review of a decision of the Australian Information Commissioner – Cabinet confidentiality – whether exemption under s 34 of the FOI Act applies – request for material regarding the implementation of Taskforce Integrity –conditional exemption under s 47C of the FOI Act – document was brought into existence for the dominant purpose of briefing a Minister on a document to be submitted to Cabinet – document exempt under s 34(1)(c) – information in the document is not purely factual material – exception to the exemption under s 34(6) does not apply – reviewable decision varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 35(4), 43, 43(1)(b), 43(1)(c)
Freedom of Information Act 1982 (Cth) – ss 4(1), 8A, 11, 11A(5), 11A(6), 22(1)(a)(ii), 24AB, 34, 34(1)(a), 34(1)(c), 34(3), 34(6), 47C, 47C(1), 55K, 57A(1), 93A
CASES
Commonwealth v Northern Land Council (1993) 176 CLR 604
Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962
Fisse and Secretary, Department of the Treasury (2008) 48 AAR 131; [2008] AATA 288
Jackson Gothe-Snape and Services Australia (Freedom of Information) [2020] AICmr 19
Lanyon v Commonwealth (1974) 129 CLR 650
Sankey v Whitlam (1978) 142 CLR 1
Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645; [2003] AATA 1301
Whitlam v Australian Consolidated Press (1985) 73 FLR 414
SECONDARY MATERIALS
Department of the Prime Minister and Cabinet, Cabinet Handbook (13th ed, August 2019)
Office of the Australian Information Commissioner, FOI Guidelines (June 2020) – paras 5.55, 5.57, 5.75
REASONS FOR DECISION
Deputy President Boyle
4 August 2021
THE APPLICATION
The Applicant seeks review of a decision of the Australian Information Commissioner (IC) in Jackson Gothe-Snape and Services Australia (Freedom of Information) [2020] AICmr 19 (1 June 2020) (IC decision).[1]
[1] T16.
By the IC decision, the IC relevantly held that the material in question was not exempt under s 34 of the Freedom of Information Act 1982 (Cth) (FOI Act), nor conditionally exempt under s 47C of the FOI Act (see [8] below).
BACKGROUIND
The facts set out under this heading are taken largely from the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) and are not contentious.
On 6 January 2017 the Applicant received a request under the FOI Act from the Respondent.[2] During the course of a request consultation process undertaken by the Applicant pursuant to s 24AB of the FOI Act, the Respondent revised the scope of his request to be as follows:
the document that was first approved by the Minister that proposes the policy of establishing or implementing Taskforce Integrity.[3]
[2] T3/30.
[3] T16/92.
The Applicant identified one document in its possession (the Document) relevant to the Respondent's FOI request.
On 17 March 2017 the Applicant notified the Respondent of its decision (original decision) to refuse access in full to the Document on the basis that it was exempt under s 34(1)(c) and, or in the alternative, s 34(3) of the FOI Act.[4]
[4] T9/42–8.
The Respondent made an application to the IC for review of the original decision.
By the IC decision, the IC set aside the original decision and made a decision in substitution of that decision that:
(a)the Document contains material that is regarded as irrelevant to the request under s 22(1)(a)(ii) of the FOI Act; and
(b)the remaining material in the Document is not exempt under ss 34(1)(c), 34(3) or 47C of the FOI Act.
The Applicant received notice of the IC decision on 2 June 2020 and, by application lodged with the Tribunal on 29 June 2020, seeks review of that decision.
THE ISSUES
The only part of the IC decision of which review is sought is that referred to in [8(b)] above. Accordingly, the issues for determination by the Tribunal are whether the Document is exempt because the relevant material in the Document is:
(a)exempt under s 34 of the FOI Act; or
(b)conditionally exempt under s 47C, and if so, whether (in the circumstances) giving access to the Document would, on balance, be contrary to the public interest.
LEGISLATIVE FRAMEWORK
Section 11 of the FOI Act relevantly provides:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
Section 34 of the FOI Act relevantly 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.
…
(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.
…
(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.
Section 47C(1) of the FOI Act provides:
(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.
(Original emphasis.)
Subsections 11A(5) and (6) of the FOI Act provide:
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a)a conditionally exempt document; and
(b)an exempt document:
(i)under Division 2 of Part IV (exemptions); or
(ii)within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).
Section 55K of the FOI Act relevantly provides that:
(1) After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a) affirming the IC reviewable decision; or
(b) varying the IC reviewable decision; or
(c) setting aside the IC reviewable decision and making a decision in substitution for that decision.
Section 57A(1) of the FOI Act relevantly provides that:
(1)An application may be made to the Tribunal for review of the following decisions:
(a) a decision of the Information Commissioner under section 55K on an IC review;
…
Section 93A of the FOI Act relevantly provides:
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
...
(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section...
Guidelines were issued by the IC under s 93A of the FOI Act in December 2016 (FOI Guidelines).
The IC decision was made under s 55K of the FOI Act.[5] I am satisfied that the Tribunal has jurisdiction to review the IC decision under s 57A of the FOI Act and that the application for review has been made in accordance with the FOI Act and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
[5][5] T1/8.
THE HEARING AND THE EVIDENCE
The parties filed submissions and the Applicant filed a bundle of documents pursuant to s 37 of the AAT Act (T documents). The Applicant also filed the following affidavits:
(a)Affidavit of Leonie McGregor sworn 25 September 2020 (McGregor affidavit). The Tribunal made confidentiality orders pursuant to s 35(4) of the AAT Act in relation to the McGregor affidavit and a redacted version of the affidavit was served on the Respondent.
(b)Affidavit of Rachael Clarke sworn 15 October 2020 (Clarke affidavit); and
(c)Affidavit of Scott Britton sworn 17 September 2020 (Britton affidavit).
On 21 April 2021, I made orders for the filing of any further evidence and submissions and for the parties to advise whether the Tribunal could make a decision in the matter on the papers. The parties advised that they agreed to the matter being determined on the papers without the need for a hearing.
THE PARTIES’ SUBMISSIONS
The Applicant’s submissions
The Applicant contends that insofar as the Document comprises material relevant to the Respondent's request, that material is fully exempt under ss 34(1)(c) and further, or in the alternative, s 34(3) of the FOI Act. The Applicant further contends that the relevant material is conditionally exempt under s 47C of the FOI Act, and that for the purposes of s 11A(5), giving access to the Document would be contrary to the public interest.
The Document is a ministerial briefing document prepared in 2015 by the former Department of Human Services (DHS) for the then Minister for Social Services and the then Minister for Human Services.
Under the Administrative Arrangements Order[6] that was in force at the time that the Document was created, DHS was responsible for the following functions:
Development, delivery and co-ordination of government services, and development of policy on service delivery
Monitoring and management of service delivery arrangements involving social security, child support, students, families, aged care, health programmes, disability employment services, superannuation release and Australian Hearing Services.
[6] Dated 23 December 2014.
A New Policy Proposal (NPP) is a proposal for a new policy that:
(a)has a certain or potential financial impact including on the fiscal balance, underlying cash balance, headline cash balance, net debt or net worth on existing estimates within the forward estimates period or beyond (including drawing down on cash reserves or moving expenditure from outside into the forward estimates);
(b)involves a change in expenses offset by changes in other expenses or user charges (revenue);
(c)creates a legal, financial, contingent or other commitment for the Commonwealth; or
(d)changes the intent of a previous new policy decision or position, including proposals that are fully offset, absorbed within existing resources, or involve movements between or within outcomes.[7]
[7] Citing the McGregor affidavit para 40(c).
All NPPs must be:
(a)approved by the relevant responsible portfolio Minister; and
(b)brought to the Expenditure Review Committee (ERC), which is a committee of the Cabinet, and the Cabinet for Budget approval, and are considered part of the Cabinet process.[8]
[8] Citing McGregor affidavit para 41; Britton affidavit para 12.
It is the usual practice for departments to provide briefings to Ministers in relation to NPPs that are proposed to be put forward to Cabinet in the Minister's name. The development of an NPP often involves Ministers and departments undertaking work in the days, weeks and months ahead of the culmination of a Cabinet submission. This work can take many forms, including canvassing options with Ministers and obtaining their approval to progress the development of NPPs proposed for submission to the Cabinet for its consideration.[9]
[9] Citing McGregor affidavit paras 29–39, 47.
The Document addresses a number of proposals, including, but not limited to, the creation of what would subsequently become known as Taskforce Integrity. The development of this proposal formed the basis of an NPP package that was subsequently submitted to the ERC and Cabinet for consideration.[10]
[10] Citing McGregor affidavit para 46.
The Applicant submits that for the purposes of s 22(1)(a)(ii) of the FOI Act, the parts of the Document which relate to matters other than the Taskforce Integrity proposal would reasonably be regarded as irrelevant to the scope of the Respondent's request (as found by the IC decision) and that the Tribunal should affirm that finding. I note that the Respondent did not make any submissions in relation to this issue. In relation to the Applicant’s submission that I should affirm these findings of the IC, the Tribunal does not have the power under s 43 of the AAT Act to set aside or vary a decision (the relief primarily sought by the Applicant) and to affirm a decision as the Applicant here submits. In effect, however, insofar as I do not set aside[11] or vary[12] the IC decision, it will remain in force as made by the IC. In those circumstances there would be no need to “affirm” that aspect of the IC decision.
[11] AAT Act s 43(1)(c).
[12] AAT Act s 43(1)(b).
Application of para 34(1)(c) – Ministerial briefing on a proposed Cabinet submission
The Document is exempt under s 34(1)(c) of the FOI Act because it was brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) applies (see [12] above).
The purpose for which a document has been prepared is a question of fact that is determined with reference to the point in time at which it was created.[13]
[13] Citing Fisse and Secretary, Department of the Treasury (2008) 48 AAR 131; [2008] AATA 288.
The Document was brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) applies, namely a document that has been submitted to or was brought into existence for submission to Cabinet, in this case the NPPs.
Cabinet includes a committee of the Cabinet such as the ERC.[14] The NPP was in fact subsequently submitted to and considered by the ERC and Cabinet in 2015 (McGregor affidavit para 15).
[14] Freedom of Information Act 1982 (Cth) s 4(1).
Application of s 34(3) – Disclosure of a Cabinet deliberation or decision
The Document is also exempt under s 34(3) of the FOI Act because it contains information the disclosure of which would reveal a Cabinet deliberation or decision and the existence of the deliberation or decision has been officially disclosed (see [12] above).
The term “deliberation” in the context of s 34(3) refers to an active debate of a matter, or weighing up of alternatives by the Cabinet, with a view to reaching (but not necessarily arriving at) a decision.[15]
[15] Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645; [2003] AATA 1301.
A document can also disclose a Cabinet deliberation even where the document was prepared prior to the Cabinet meeting at which the relevant matters were discussed.
The relevant material in the Document includes information that was contained in the final NPP package that was submitted to, and considered by, the ERC and Cabinet and reveals the substance and nature of ERC/Cabinet deliberations in relation to the final NPP.[16]
[16] McGregor affidavit paras 48–50.
The qualification in s 34(3) relating to the existence of the deliberation or decision being officially disclosed does not apply in the present case.
In the IC decision, the IC formed the view that the existence of Cabinet deliberation or decision in relation to the establishment or implementation of Taskforce Integrity had been officially disclosed, based on contents of the DHS Annual Report 2015–2016 and 2015–2016 Budget Paper statements.[17]
[17] T16/104 para 75.
While the 2015–2016 Budget Paper statements make reference to the title of the NPP package, of which Taskforce Integrity formed one part, those statements do not refer specifically to Taskforce Integrity, nor do they refer to that measure being subject to deliberation or decision by the Cabinet or the Australian Government. Although the DHS Annual Report does include information about Taskforce Integrity:
(a)it does not refer to that measure being subject to deliberation or decision by the Cabinet or the Australian Government; and
(b)the DHS Annual Report is not a document approved by Cabinet or a Minister.
As far as the Applicant is aware, the existence of Cabinet deliberations or decisions regarding the Taskforce Integrity NPP has not been disclosed in any other public material released with the authority of the Cabinet.
Further, the Document was created in the course of preparing an NPP for Cabinet's consideration, and as such, is a document that relates to the Cabinet process. The inclusion of the s 34 exemption in the FOI Act recognises the importance of the protection of Cabinet confidentiality as a foundation for the proper functioning of the Cabinet process. All government proposals for a new policy that has a certain or potential financial impact must be subject to an NPP that is brought to the ERC and the Cabinet for approval. If any reference in a government publication or announcement to a matter relating to an NPP were to be construed as an official disclosure of the existence of a Cabinet deliberation or decision, this would undermine the well-established convention of Cabinet confidentiality.
Exception in s 34(6) of the FOI Act
The relevant material contained in the Document:
(a)is not “purely factual material”, but rather comprises deliberative matter relating to the development of an NPP package, including options presented to the former Ministers of Social Services and Human Services for consideration, for proposed submission to the Cabinet for consideration; and
(b)to the extent that certain material could be characterised as factual in nature, such material:
(i)forms an integral part of the deliberative content and purpose of the Document, and is therefore not appropriately characterised as being “purely” factual material; or
(ii)is otherwise so embedded in or intertwined with the deliberative content such that it is impractical to separate it.[18]
[18] Dreyfus and Secretary, Attorney General’s Department [2015] AATA 962 (Dreyfus).
Even if the material in the Document is purely factual, its disclosure would reveal a Cabinet deliberation or decision, the existence of which has not been officially disclosed, and therefore the exception to the exemption in s 34(6) of the FOI Act does not apply.
Application of s 47C – Deliberative processes
If relevant material in the Document is not exempt under s 34 of the FOI Act, the material is conditionally exempt under s 47C, and disclosure in the circumstances would, on balance, be contrary to the public interest.
The relevant material in the Document:
(a)comprises advice and recommendations about the development of an NPP package, which were prepared for the purposes of obtaining Ministerial approval for the proposed submission of NPPs to the Cabinet for consideration;
(b)relates to deliberative processes involved in the functions of:
(i)DHS (as the agency which proposed and was responsible for administering the relevant NPP measures);
(ii)the Ministers for Social Services and Human Services; and
(iii)the Government of the Commonwealth, in particular the Budget processes of the Cabinet and ERC;
(c)does not comprise “operational information” as defined in s 8A of the FOI Act; and
(d)does not comprise “purely factual material”.
There is a public interest in the protection of Cabinet confidentiality which would be undermined if the substance of matters considered by the Cabinet and ERC were to be released. On balance, this public interest factor outweighs any general public interest factors in favour of disclosure.
Disclosure could also reasonably be expected to have a wider detrimental effect on Cabinet processes. The principle of confidentiality that underpins Cabinet processes (including the development of matters proposed for Cabinet consideration) ensures that Ministers and their departments, as well as Cabinet members, can have open and frank communications about policy development. If the Document were to be disclosed, this could lead to changes in the way in which documents relating to policy proposals are prepared and communicated in the future, which may be less open or efficient.
It is well established that Cabinet related documents are a class of documents “in respect of which there are strong considerations of public policy mitigating against disclosure regardless of their contents” so that decision-making and policy development by Cabinet can remain uninhibited.[19]
[19] Citing Commonwealth v Northern Land Council (1993) 176 CLR 604, 615–6; Sankey v Whitlam (1978) 142 CLR 1, 39–40.
The important role that the maintenance of Cabinet confidentiality plays in avoiding serious damage to the proper workings of government at the highest level has received strong judicial recognition.[20]
[20] Citing Whitman v Australian Consolidated Press (1985) 73 FLR 414, 420–2; Lanyon v Commonwealth (1974) 129 CLR 650, 653.
The Document was brought into existence for the purposes of briefing Ministers in relation to matters proposed for Cabinet submission, is closely connected to Cabinet processes and informed the development of the final NPP that was considered by Cabinet. Its release would reveal (either directly or by inference) matters that were the subject of Cabinet deliberation.
On 13 August 2020, Services Australia (SA) opposed the production of certain documents (including draft versions of the Document) in Federal Court of Australia proceedings on the basis that they are Cabinet-related documents and were exempt from production on the grounds of Public Interest Immunity. On 13 August 2020, Lee J upheld SA's claim.[21] Unfortunately, Lee J’s ruling was not published. At my request the Applicant provided the transcript of the proceedings before Lee J, however, his Honour’s rulings on the objections to production were not transcribed, with the relevant parts of the transcript stating: “JUDGMENT DELIVERED”.
[21] Clarke affidavit paras 7–9.
The Respondent’s submissions
By written submissions lodged with the Tribunal on 27 April 2021 the Respondent submitted that:
(a)The IC found that the Applicant had failed to provide sufficient particulars to establish that the Document was brought into existence for the dominant purpose of briefing a Minister in relation to a Cabinet matter.[22] The affidavits filed in these proceedings do not provide sufficient information for that assessment to be made.
(b)While the Respondent is, as he puts it, “making an argument with one arm tied behind [his] back”, from reading the materials that he is able to, it appears that the parts of the Document that he seeks are part of a broader brief that subsequently went on to form an NPP, and was submitted to Cabinet. To argue that a preliminary brief is exempt because it was subsequently built upon for an NPP for Cabinet is nonsensical. Such a notion could potentially expand the Cabinet exemption to a much wider range of documents than it was originally intended and would mean logically that a document's purpose cannot be determined at the time of its creation.
(c)In relation to disclosure of the deliberations and the decision, there have been many disclosures in relation to decisions made about Taskforce Integrity over the years, both through the documents identified by the Information Commissioner released by the Government with the endorsement of Cabinet but also in various disclosures by public officials acting within the scope of their ordinary functions under general endorsement of Cabinet. The Respondent cites the transcript of the Senate Community Affairs Legislative Committee hearing of 25 October 2017. The Respondent also says that Minister Stuart Robert has as recently as December 2020 been talking in detail about Taskforce Integrity.
[22] IC decision para 50; T1/16 para 50.
The Applicant’s reply
By a reply dated 3 May 2021, the Applicant responded to the Respondent’s above submissions as follows:
(a)In relation to the Respondent’s argument that the exemption under s 34(1)(c) does not apply because the Document is a preliminary brief on an early proposal that was subsequently developed into what was to become an NPP that was submitted to the Cabinet for its consideration at a later point in time.
(i)The Cabinet exemption in s 34 of the FOI Act is intended to protect the confidentiality of the Cabinet process and ensure that the principle of collective ministerial responsibility is not undermined.
(ii)The test in s 34(1)(c) is satisfied on the basis that:
A. all NPPs must be approved by the relevant responsible portfolio Minster, and brought to the Cabinet for Budget approval;
B. Ministerial briefings on proposed NPPs are intricately interwoven in the Cabinet process;
C. the Document was prepared for the dominant purpose of briefing a Minister on an NPP that was subsequently submitted to the Cabinet for its consideration; and
D. while certain details of the NPP may have been in the process of further development at the time that the briefing document was created, the Document was nevertheless brought into existence to brief the Minister on a proposal that was at that time proposed to be the subject of a Cabinet submission and was in fact the subject of a Cabinet submission.
(b)In relation to the disclosure issue:
(i) the qualification in s 34(3) arises where the existence of the deliberation or decision has been officially disclosed. It is not sufficient that there has been a disclosure of information relating to a matter that has been the subject of a Cabinet deliberation or decision, or that an inference could be drawn that a matter has been subject to Cabinet deliberation or decision. If any reference in a government publication or announcement, or in responses to questions posed by a Senate Estimates committee, to a matter relating to an NPP were to be construed as an official disclosure of the existence of a Cabinet deliberation or decision, this would undermine the protection of Cabinet confidentiality.
(ii) None of the events identified by the Respondent constitutes official disclosure of the existence of any Cabinet deliberations or decisions such that the Document is not exempt under s 34(3) of the FOI Act.
CONSIDERATION
Is the Document exempt under s 34(1)?
As noted at [5] above, the Applicant identified one document (the Document) in its possession which came within the category of documents sought by the Respondent. The IC found that the Applicant had taken all reasonable steps to locate documents within the scope of the request as it was required to do under s 24A of the FOI Act.[23] That finding is not contested. The Document is described in the Schedule of Document Annexure LM-1 to the McGregor affidavit and Annexure RC-1 to the Clarke affidavit as follows:
Brief B15/125 from the Department of Human Services to the former Minister for Social Services, and the former Minister for Human Services, titled ‘Information on Current Processes and Options for Improvement’.[24]
[23] T16/96, para 30.
[24] Similarly described in Annexure SB-1 to the Britton affidavit as, “Briefing document provided by the DHS to the former Minister for Social Services and the former Minister for Human Services on 12 February 2015.”
I have reviewed the Document, and while it does not use the word “Brief”, considering the content of the Document, I find that the above is an appropriate description.
As noted at [17] above, s 93A provides for the IC to issue guidelines to which regard must be had in exercising powers under the FOI Act. Paragraph 5.55 of the FOI Guidelines provides a useful statement of the intent and purpose of the Cabinet exemption:
5.55 The Cabinet exemption in s 34 of the FOI Act is designed to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility (fundamental to the Cabinet system) is not undermined. Like the other exemptions in Division 2 of Part IV, this exemption is not subject to the public interest test. The public interest is implicit in the purpose of the exemption itself.
Paragraph 5.57, relating to Cabinet processes, provides:
5.57 Agencies should refer to the Cabinet Handbook issued by DPMC for guidance about Cabinet processes and the underlying principles of the Cabinet system. DPMC asks that agencies consult the DPMC FOI Coordinator on any Cabinet-related material identified as being within the scope of an FOI request.
(Footnotes omitted.)
The Applicant argues that the Document is exempt under s 34(1)(c) as its dominant purpose was to brief a Minister on a document to which s 34(1)(a) applies. The starting point, therefore, is to determine whether the document to which the Document apparently relates is a document that comes within the description in s 34(1)(a).
The IC accepted that the NPP is an exempt document under s 34(1)(a).[25] In so finding, the IC accepted the Applicant’s submission made at paras 10 and 17 of the submissions to the IC which were reproduced in the IC decision at para 40 as follows:
10. The department confirms that the document subject to the IC review is the document that “proposes the policy of establishing or implementing Taskforce Integrity” and formed the basis of the New Policy Proposal (NPP) package that was submitted to Cabinet for its consideration. For the reasons discussed in these submissions, the fact the document pre-dates the final submission considered by the Cabinet does not preclude it form being a document to which s 34 of the FOI [sic] applies.
…
17. Taskforce Integrity forms part of the department’s broader enforcement and compliance strategy, including decreasing welfare fraud. The final NPP proposing the establishment and implementation of Taskforce Integrity was formally submitted to Cabinet in March 2015, and was brought into existence for the dominant purpose of being submitted to the Cabinet for its consideration. Therefore, the NPP is a document to which section 34(1)(a) of the FOI Act applies…[26]
[25] IC decision; T16/98, para 41.
[26] T16/97–8.
That finding is not disputed by the Respondent.
Having made the finding that the NPP is an exempt document under s 34(1)(a), in considering whether the Document comes within s 34(1)(c), the IC made the following findings:
50.Based on my examination of the relevant document and with regard to Services Australia’s submissions, I am not satisfied that Services Australia has provided sufficient particulars to establish that the document was brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) applies.
51.In this case, although it appears that the document at issue may relate to the final NPP which was subsequently considered by Cabinet, insufficient particulars have been provided about the context and timing of the creation of the document at issue to satisfy me that it was brought into existence for a dominant purpose of briefing a minister on a submission, or proposed submission to cabinet, at the time of the creation of the document.[27]
[27] T16/99.
The basis of the IC’s finding in paras 50 and 51 seems to be one as to the timing of the creation of the Document rather than one as to the substance and purpose of the Document. Having accepted that “the final New Policy Proposal is an exempt document under s 34(1)(a)…”,[28] it is not clear how the IC then found as she did in para 51. Given the IC’s finding at para 41 and the reference in the Document to the NPPs which went to Cabinet, the basis for the IC finding as she did at para 51 must be that she was not satisfied that the Document was a document that was brought into existence for the dominant purpose of briefing a Minister on the “final New Policy Proposal”.
[28] IC decision para 41; T16/98.
The issues of the timing of the creation and the purpose of the Document were dealt with in the affidavits filed by the Applicant and set out below.
The Britton affidavit
The Britton affidavit relevantly advised:
(a)Mr Britton was employed by the DHS from 1988 to 2016 and he made the affidavit on the basis of his own knowledge.
(b)He held many roles in the DHS and since 2007 at the SES level.
(c)He has had significant exposure to the Cabinet process including processes relating to NPPs and the related costing and budget approval process.
(d)NPPs are required to be brought to Cabinet for Budget expenditure approval and must be approved by the relevant portfolio Minister prior to submission to Cabinet.
(e)The NPP process often involves work being done by the department for weeks or months prior to submission to Cabinet. This work includes briefing the relevant Minister as the NPP is developed.
(f)He has reviewed the Document and confirms that, to his knowledge, it was a briefing document provided to the Minister of Social Services and the Minister for Human Services on 12 February 2015.
(g)The Document concerns the package of measures called “Strengthening the Integrity of Welfare Payments” which was an NPP delivered under the 2015–2016 Budget and was subject to Cabinet approval.
(h)At the time that the NPP was created he was that National Manager, Customer Compliance in DHS and was involved in the creation of the NPPs.
(i)In his experience NPPs are brought to Cabinet for Budget expenditure approval and are the subject of formal costings. The NPPs were attached to the Document as Attachment A.
(j)The Document was prepared for the dominant purpose of briefing the Ministers. This is based on:
(i)The content of the Document;
(ii)his knowledge of the NPPs that were submitted to the ERC and Cabinet for consideration in the first half of 2015 as part of the 2015–2016 Budget process; and
(iii)the expectation (based on his experience) that the Minister would have been briefed on the ‘Strengthening the Integrity of Welfare Payments’ NPP prior to its proposed submission to Cabinet.
The Clarke affidavit
The Clarke affidavit relevantly advised:
(a)Ms Clarke is Acting General Counsel, Litigation and Information Release and has been employed by SA since 2004.
(b)The Document is a briefing document provided by DHS to the former Minister for Social Services and the former Minister for Human Services on 12 February 2015 and relates to the NPP which was delivered in the 2015–2016 Budget.
(c)The Commonwealth of Australia is a party to the Federal Court proceedings in Katherine Prygodicz and Others v Commonwealth of Australia VID 1252 of 2019 (Prygodicz).
(d)Draft versions of the Document were discovered in the Prygodicz proceedings, however, the Commonwealth claimed privilege from production of the documents on the basis of public interest immunity (PII) and/or legal professional privilege. The claim for PII was based on the claim that their disclosure would reveal deliberations of Cabinet.
(e)On 13 August 2020 Lee J upheld the claims for PII over the draft iterations of the Document finding that the draft iterations were Cabinet documents and, therefore, subject to the PII exemption.
(f)PII was also claimed over the final version of the Document and that claim has not been challenged by the applicants in Prygodicz.
(g)Advice obtained for the AGS confirms that the Department of Prime Minister and Cabinet (DPM&C) supports a full claim of PII in respect of the Document.
The McGregor affidavit
The McGregor affidavit relevantly advised:
(a)Ms McGregor is currently employed by the DPM&C as the First Assistant Secretary and made the affidavit on the basis of her own knowledge and belief. She was Assistant Secretary of the Cabinet Division from May to October 2013.
(b)In her above roles she has been responsible for managing the work of the Cabinet Division responsible for all facets of Cabinet and Cabinet Committee meetings. This includes overseeing the preparation and finalisation of Cabinet documents including Cabinet submissions, minutes, attachments, papers and presentations.
(c)From 2015 to 2018 she was First Assistant Secretary in the Department of Finance during which time she was appointed as interim Chief Executive Officer for the Independent Parliamentary Expenses Authority. Except for a brief period when she was the Deputy Director General of ACT Health, she has been employed in the Australian Public Service since 1992.
(d)Throughout her time employed in the public sector she has had extensive exposure to the Cabinet process including involvement in the preparation of submissions to Cabinet. She has personally attended 59 Cabinet or Cabinet Committee meetings and has overseen the lodgement of 1596 documents to Cabinet or its committees.
(e)She refers to the Cabinet Handbook (attached to the affidavit) and to paras 5.57 and 5.75 of the FOI Guidelines and makes various submissions on the role of Cabinet, Ministers, the history of Cabinet processes and the need for Cabinet confidentiality in the Westminster-style of government.
(f)She explains the Cabinet approval and ERC process which, amongst other things, requires proposals coming before Cabinet to have a sponsoring Minister, who is usually the Minister with the relevant portfolio. Part of that process requires the relevant Minister to ensure that there has been consultation necessary for an informed decision to be made. This is a requirement of the Cabinet Handbook.
(g)As part of the above process Ministers have memoranda and briefing papers prepared by the relevant department and engage in consultation and briefings with the department. A “Cabinet submission” is a proposal that seeks agreement from Cabinet to a particular course of action. That will invariably be supported by briefings from the department to inform submissions that are put forward.
(h)The Budget process usually begins in November or December. From February to April the ERC develops the Budget. NPPs are proposals for new policy which have potential financial impacts, involve changes to expenses, create legal or financial commitments or change the intent of previous policy.
(i)NPPs must be provided by the relevant department, approved by the relevant portfolio Minister and brought to the ERC and the Cabinet for Budget approval. In her experience, the NPPs are prepared by the department, sent to the Department of Finance for costing and then shared with the DPM&C and Treasury. The department would then prepare a briefing for the Minister before the NPP is submitted to ERC or Cabinet for approval. NPPs are considered to be part of the Cabinet process.
(j)The Document is a document that would come within s 34(1)(c) because it has certain features and because of certain circumstances. These features and circumstances are set out in the unredacted version of the McGregor affidavit. I take those matters into account in making my decision.
(k)She is also of the view that the Document would come within the operation of s 34(3), disclosure of Cabinet deliberations, because it includes information that was contained in the final NPP that was submitted to Cabinet and to the ERC.
It would be fair to say that the evidence given in the affidavits filed by the Applicant is general in its nature and goes to processes and usual practices rather than giving evidence relating to the creation of the Document specifically. For instance, there is no evidence from anyone who was directly involved in the preparation of the Document. That is understandable as the document was, in all likelihood, the product of a number of individuals who may or may not still be employed in the Australian Public Service. The evidence provided by the Applicant explains the process by which NPPs are formulated and the steps that occur prior to an NPP being submitted to ERC and potentially full Cabinet. The affidavit evidence explains the need for the creation of material such as the Document as part of the NPP and Cabinet process. The evidence given by all of the Applicant’s witnesses, in particular Ms McGregor, is consistent with, and relevantly reflective of, the Cabinet process described in the Cabinet Handbook which it turn is referred to in the FOI Guidelines (see [58] above).
The Document also in large part speaks for itself. As noted in the Clarke affidavit and the Britton affidavit, the Document is a briefing document provided to the two Ministers and concerns a package of measures called “Strengthening the Integrity of Welfare Payments,” which was an NPP delivered under the 2015–2016 Budget.[29] There are also other aspects of the document that I cannot disclose which support my finding as to the purpose of the Document.
[29] Clarke affidavit para 5; Britton affidavit para 10.
Insofar as para 51 of the IC decision (see [62] above) can be taken as being a finding that there is uncertainty as to the timing of the creation of the Document, the date of its creation (or a period of one or two weeks in which it was created) can be worked out from the contents of the Document. Reference is made in the Document to an event having occurred on a certain date and the Document was received by the Minister (or the Minister’s office) on 12 February 2015.[30] Accordingly, the Document must have been created in a period of around one or two weeks before it was provided to the Ministers.
[30] Britton affidavit (see [65(f)] above.
Insofar as para 51 of the IC decision raises a question as to the “context” of and purpose for the creation of the Document, its content largely speaks for itself and is given further context by the evidence in the affidavits. It is, as the affidavits opine, clearly a document that was created for the dominant, if not sole, purpose of briefing the relevant Ministers on a series of NPPs which were to be submitted to ERC (at least) and potentially to full Cabinet. As it turned out, the NPPs went through both ERC and full Cabinet.[31]
[31] Britton affidavit para 13(b).
On the evidence that is before me, I am satisfied that the Document was brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) of the FOI Act applies. It is, therefore, a document which is exempt under s 34(1)(c) of the FOI Act.
I also find that the exception to the exemption under s 34(6) of the FOI Act does not apply in the present case because the information in the Document is not purely factual material. It contains deliberative matter relating to the development of the NPPs and puts forward options to the Ministers for consideration in relation to the proposed submission of the NPPs to Cabinet (and ERC) for consideration. Insofar as some of the material in the Document could be characterised as factual in nature, it forms an integral part of the deliberative content and purpose of the Document. It is therefore not appropriately characterised as being “purely” factual material, or, as the Applicant submits, is otherwise so embedded in or intertwined with the deliberative content such that it is impractical to separate it.[32]
[32] Dreyfus.
Having so found, it is unnecessary for me to consider whether the Document is exempt under s 34(3) on the basis that its disclosure would reveal a Cabinet deliberation or decision. For the same reason it is also unnecessary for me to consider the issues identified in [10(b)] above.
DECISION
The IC decision is varied to find that the Document is exempt under s 34(1)(c) of the FOI Act.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 4 August 2021
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