McGuirk v Director General, The Cabinet Office

[2007] NSWADT 9

CITATION:	McGuirk v Director General, The Cabinet Office [2007] NSWADT 9
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Director General, The Cabinet Office
FILE NUMBER:	063029
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 June 2006
DATE OF DECISION:	10 January 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - cabinet documents - access to documents - internal working documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	BY v Director General, Attorney General's Department [2002] NSWADT 79 Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 Mangopolah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 National Parks Association of New South Wales Inc v Department of Lands and Anor [2005] NSWADT 124 Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT M Dalla-Pozza, Solicitor
ORDERS:	The matter is to be set down for further directions on Monday, 5 February 2007 at 9.30a.m.

1 Mr McGuirk applied to the Premier's Department under the Freedom of Information Act 1989 (“the FOI Act”) for access to documents relating to a proposal to permit the concurrent holding of the offices of the Ombudsman and Commissioner of the Independent Commission Against Corruption. His application was transferred to The Cabinet Office because that office is responsible for formulating and developing legislative proposals within the Premier's administration and, accordingly, was the agency likely to hold the documents and the agency whose functions most closely relate to the documents sought.

2 The Cabinet Office’s Deputy Director-General, Legal and Justice Policy, Ms Leigh Sanderson determined the application. She identified 26 documents that she considered as falling within the scope of the application. Mr McGuirk had previously been given access to four of those documents. Ms Sanderson prepared a schedule of the remaining documents and determined to refuse access to each of the documents listed in the schedule. Mr McGuirk applied for an internal review of Ms Sanderson’s determination and The Cabinet Office’s Director-General, Mr Roger Wilkins, undertook that review. Mr Wilkins also determined to refuse access to the documents.

3 Mr McGuirk has applied to this Tribunal for an external review of the determination to refuse his request for access to documents. The parties agreed to the matter being determined on the papers without the need for a hearing of the matter.

4 The Cabinet Office relies on a Statement of Evidence by Ms Sanderson that was filed in the proceedings. In the body of her Statement she identified the documents that are the subject of this application. A confidential annexure to that Statement provided a more detailed outline of the nature of the documents than that set out in the Statement. The Tribunal has not been provided with a copy of the documents to which access has been refused.

5 Ms Sanderson identified the documents as follows:

1. Document 1 is a draft of the Cabinet Minute;

2. Document 2 is a draft of the Cabinet Minute;

3. Document 3 is a draft of the Cabinet Minute;

4. Document 4 is a facsimile between the Legal Branch of The Cabinet Office and the Parliamentary Counsel's Office attaching a copy of the final Cabinet Minute;

5. Document 6 is a copy of a draft of the Cabinet Minute;

6. Document 7 is a briefing note summarising and containing recommendations on the draft Cabinet Minute;

7. Document 8 is a record of the decisions of a Cabinet Meeting;

8. Document 9 is a file note recording a conversation between officers at the Legal Branch of The Cabinet Office and the Parliamentary Counsel's Office relating to the proposal to permit the concurrent holding of the offices of Ombudsman and Commissioner of the Independent Commission Against Corruption;

9. Document 10 is a file note recording a conversation between officers at the Legal Branch of The Cabinet Office and the Parliamentary Counsel's Office relating to the implementation of the proposal into legislation;

10. Document 11 is a preliminary draft of the Independent Commission Against Corruption and Ombudsman Amendment Bill 1999 ("the Bill");

11. Document 12 is a briefing note summarising and containing recommendations on the draft Bill;

12. Document 13 is a facsimile enclosing a revised draft of the Bill;

13. Document 14 is a file note recording conversations between officers at the Legal Branch of The Cabinet Office and the Parliamentary Counsel's Office relating to implementation of the proposal to permit the concurrent holding of the offices of Ombudsman and Commissioner of the Independent Commission Against Corruption into legislation;

14. Document 15 is a briefing note summarising, containing recommendations on, and annexing a draft copy of the Bill;

15. Document 16 is a briefing note summarising, containing recommendations on, and annexing a draft copy of the Cabinet Minute;

16. Document 17 is a facsimile enclosing a further revised draft of the Bill;

17. Document 18 is a briefing note summarising, containing recommendations on and annexing draft copies of the draft Bill, Caucus briefing note, the Cross-Bench briefing note, the Second Reading Speech and the Bill;

18. Document 19 is a facsimile enclosing a draft copy of schedule 2 of the draft Bill;

19. Document 20 is a facsimile enclosing the Report of the Parliamentary Counsel's Office on the Independent Commission Against Corruption and Ombudsman Amendment Bill 1999; and the Bill submitted to the Cabinet Standing Committee on Legislation;

20. Document 21 is a facsimile enclosing a copy of internal file note of the Parliamentary Counsel's Office;

21. Document 22 is a briefing note summarising, making recommendations on and annexing a copy of Report of the Parliamentary Counsel and a draft of the Bill;

22. Document 23 is a briefing note summarising, making recommendations on, and annexing copy of the Bill, the draft second reading speech, the Caucus Brief and Cross-Bench briefs, and the Cabinet Minute.

6 The Cabinet Office claims exemptions for the documents on the following grounds:

(1) The Cabinet documents exemption pursuant to Clause 1 of Schedule 1 to the FOI Act in relation to all the documents.

(2) In addition to the above, the internal working documents exemption pursuant to Clause 9 of Schedule 1 to the FOI Act in relation to documents 7 and 9 - 23.

(3) In addition to the above, legal professional privilege in relation to documents 4,9,10,11,13,14,17,19,20 and 21 pursuant to Clause 10 of Schedule 1 to the FOI Act.

7 Under section 16 of the FOI Act, an access applicant has a right to be given access to all documents requested, subject to certain qualifications. Under section 25(1) of the FOI Act an agency has discretion to refuse access to certain documents on the ground that they are ‘exempt documents’ within the meaning of the Act. Section 6 (the definition section) provides:

"exempt document" means:

(a) a document referred to in any one or more of the provisions of Schedule 1, or

(b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act.

8 In this instance The Cabinet Office exercised its discretion to refuse access to the documents. It has relied on the following exemptions: Cabinet documents (Clause 1 of Schedule 1); internal working documents (Clause 9 of Schedule 1); and legal professional privilege (Clause 10 of Schedule 1).

9 Clause 1 of Schedule 1 provides:

1 Cabinet documents

(1) A document is an exempt document:

(a) if it is a document that has been 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 of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or

(d) if it is an official record of Cabinet, or

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

(2) A document is not an exempt document by virtue of this clause:

(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or

(b) if 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.

(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.

10 Clause 9 of Schedule 1 provides:

9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

11 Clause 10 of Schedule 1 provides:

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.

12 Cabinet documents are one category of “restricted documents”. Section 57 sets out the procedure which the Tribunal must follow when considering restricted documents. Section 57 states that:

57 Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.

13 The burden of proof lies on the agency. Section 61 provides:

61 Burden of proof

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.

14 The Cabinet Office’s Solicitor, Mr Dalla-Pozza, made detailed written submissions in support of the applicability of the claimed exemptions to the various documents.

Cabinet Documents

15 The Tribunal’s President considered the issue of the exemption of cabinet documents in Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282. He observed at paragraph [57] of his decision:

This exemption finds its justification in the primacy of Cabinet in the Westminster system of democratic government. It preserves the constitutional convention of collective ministerial responsibility. It seeks to ensure that what is said in Cabinet remains in Cabinet. As with any committee process, there will often be a range of views and a wide range of material canvassed before a final decision is reached. Under the Westminster system all Ministers are bound by the final decision, and must speak with one voice in relation to it. The same is true of other decisions taken on the way to the final decision. These principles are well-known, and they find their expression in such terms as ‘Cabinet solidarity’.

16 All the documents in the present application are the subject of this claim. Section 57(3) requires the Tribunal to determine whether there are reasonable grounds for the claim that each of the documents is a restricted document. The Cabinet Office submitted that there are such grounds because the documents fall within either Clause 1(1)(b), (c) or (e) of Schedule 1. Ms Sanderson identified the documents as falling into one or more of those subcategories:

(a) Documents that are preliminary drafts of documents that have been prepared for submission to Cabinet (Clause 1(1)(b))

17 Ms Sanderson contends that Documents 1-3, 11, 13, 15-20, 22 and 23 fall into this category. She stated:

“13 The draft copies of the Cabinet Minute, namely, documents 1-3 and 16 (due to the fact that document 16 is a briefing note that annexes a copy of the draft Cabinet Minute) are drafts of a document that was intended to be, and actually was, submitted to Cabinet (on 8 November 1999).

14 The draft copies of the Bill, namely, documents 11, 13, 17 and 19 and documents 15, 18, 22 and 23 (due to the fact that those later documents are briefing notes that refer to and annex copies of the Bill) are drafts of a document that was submitted to the Cabinet Standing Committee on Legislation on 15 November 1999. All Bills are prepared for submission by the relevant Minister to Cabinet or the Cabinet Standing Committee on Legislation for consideration.

15 The copies of the Report of the Parliamentary Counsel's Office, namely, documents 20 and also 22 (since document 22 has a copy of the Report annexed to it) are drafts of a document that was submitted to the Cabinet Standing Committee on Legislation on 15 November 1999. This is because such documents are prepared for submission .to Cabinet and annex and summarise the Bill.”

18 Ms Sanderson contends that Documents 4 and 6 fall into this category. She stated:

“16 Document 4 is a facsimile between the Legal Branch of The Cabinet Office and the Parliamentary Counsel's Office annexing a copy of the final Cabinet Minute. Document 6 is a copy of the Minute that was submitted to, and approved by, Cabinet on 8 November 1999.”

19 Ms Sanderson contends that Documents 4, and 7-23 fall into this category. She stated:

“18 Documents 4, 9, 10 and 14 record communications between the officers at the Legal Branch of The Cabinet Office and legal officers at the Parliamentary Counsel's Office. The nature of these communications related to ways to give effect in the Bill to the proposals approved by Cabinet on 8 November 1999. The consideration and adoption by Cabinet of this proposal was a deliberation and decision of Cabinet. On this occasion, Cabinet debated and ultimately decided to adopt this proposal. Therefore the release of these documents would disclose information concerning these deliberations and this decision of Cabinet to adopt the proposal put forward by the Premier. Further, the communications concern the content of the Bill which was subsequently submitted to the Cabinet Standing Committee on Legislation for consideration and would reveal the contents of the Bill in the form approved by the Premier and subsequently deliberated on by the Committee.

19 Documents 7 and 16 are briefing notes prepared by The Cabinet Office for the Premier recommending that the Premier approve an attached draft Cabinet minute. Cabinet minutes are signed and submitted by the relevant Minister (in this case the Premier) to Cabinet. They contain the views of that Minister as formally submitted to Cabinet on a particular issue. These briefing notes summarise in detail the content of, and make recommendations on, the draft Cabinet Minute. The point of such briefing notes is to give the Premier sufficient factual grounding about the contents of the draft Cabinet minute to enable him to make a decision regarding the draft Cabinet minute and if appropriate submit the minute to Cabinet. The briefing notes also contain the recommendations made by the Legal Branch of The Cabinet Office in relation to the Cabinet minute. The briefing note and draft Cabinet minute reflect the views taken by the Premier and presented by the Premier to Cabinet in the minute. Although both briefing notes were prepared prior to the Cabinet meeting, their release would clearly reveal the views subsequently put to Cabinet by the Premier since the Premier ultimately adopted these proposals by adopting and submitting the minute.

20 Document 8 is a file note recording the decisions of a Cabinet meeting. It would reveal the deliberations that took place and decisions which were made on this occasion.

21 Documents 11, 13, 17 and 19 are drafts of the Bill. The discussions and decisions made during that Cabinet meeting at which the proposal was adopted are reflected in the form that the various drafts of the Bill take. By comparing each draft with earlier copies of it and with the finalised copy, it would be possible for an individual to identify the deliberations of Cabinet on 8 November 1999 which led to the adoption of the specific contents of that particular draft. The Bill was prepared in accordance with the instructions of the Legal Branch of the Cabinet Office to give effect to the proposal approved by Cabinet on 8 November 1999. The consideration and approval by Cabinet of this proposal was a deliberation of Cabinet. Therefore, the drafts of the Bill contain information concerning the deliberations and decisions of Cabinet on that occasion. The release of these documents would accordingly disclose information concerning these deliberation and the decision of Cabinet to adopt the proposal put forward by the Premier. Furthermore, disclosure of the documents would reveal the content of the Bill which was subsequently submitted to the Cabinet Standing Committee on Legislation for consideration on 15 November 1999 and would reveal the content of the Bill in the form approved by the Premier and subsequently deliberated on by the Committee.

22 Documents 12, 15, 18 and 23 are briefing notes that refer to and summarise the various drafts of the Bill. In the case of document 22 the briefing note also refers to and makes recommendations on the Report of the Parliamentary Counsel's Office (which, in turn, annexes a copy of the Bill). These briefing notes summarise in detail the content of, and contain recommendations made by the Legal Branch on the draft Bill. The point of such briefing notes is to give the Premier sufficient factual grounding about the content of the Bill to enable him to make a decision regarding it and, if appropriate, clear it for submission to the Cabinet Standing Committee on Legislation. Thus the briefing notes reflect the views taken by the Premier and presented by the Premier to the Committee (as reflected in the Bill ultimately submitted). Furthermore, the briefing notes contain recommendations made by officers of the Legal Branch of The Cabinet Office in relation to specific issues in order for the Bill to give effect to the proposal approved by Cabinet on 8 November 1999. The consideration and approval by Cabinet of this proposal was a deliberation of Cabinet. Therefore, the disclosure of this information would be a disclosure of information concerning these deliberations and the decision of Cabinet to adopt the proposal put forward by the Premier, and would reveal the content of the Bill which the Premier subsequently submitted to the Cabinet Standing Committee on Legislation.

23 Documents 20 and 22, which contain the Report of Parliamentary Counsel, also annex drafts of the Bill (since the Report annexes and refers to a draft of the Bill). As explained above, the Bill was prepared in accordance with the instructions of the Legal Branch to give effect to the proposal approved by Cabinet on 8 November 1999. The consideration and approval by Cabinet of this proposal was a deliberation of Cabinet. These documents therefore contain information concerning the deliberations and decision of Cabinet on that occasion. Therefore, their release would disclose information concerning these deliberations and the decision of Cabinet to adopt the proposal put forward by the Premier, and would reveal the content of the Bill which the Premier subsequently submitted to the Cabinet Standing Committee on Legislation.

24 Document 21 comprises a record of the internal deliberations of the Parliamentary Counsel's Office in the course of preparing the Bill for submission to Cabinet. These deliberations came about in the course of implementing the proposal of Cabinet on 8 November 1999. The consideration and approval of the proposal was a deliberation and decision of Cabinet, due to the fact that Cabinet on this occasion debated and ultimately decided to adopt this proposal. Therefore, the contents of this file note is a matter concerning those deliberations of Cabinet to adopt the proposal put forward by the Premier, and would also reveal the content of the Bill which the Premier subsequently submitted to the Cabinet Standing Committee on Legislation”.

20 Clauses 1(1)(b) and 1(1)(c) are contingent on Clause 1(1)(a). Pursuant to Clause 1(1)(a) a document is an exempt document if it is a document that has been prepared for submission to Cabinet. The use of the word "for" in Clause 1(1)(a) requires application of a purpose test. In previous decisions, the Tribunal has held that the relevant test is not a "sole purpose" test. Instead, it is sufficient that a submission to Cabinet is one of the purposes for which it was prepared: National Parks Association of New South Wales Inc v Department of Lands and Anor [2005] NSWADT 124.

21 The Cabinet Office submits that as long as one of the purposes for creating a document is for making a submission to Cabinet and as long as that purpose is something more than a "peripheral" purpose, the exemption will operate: Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924.

22 Documents 1-3 are drafts of the Cabinet Minute submitted to Cabinet on 8 November 1999. Document 6 is a copy of a final Cabinet Minute. Document 4 refers to and annexes a copy of the final Cabinet Minute. Document 16 refers to and annexes a copy of a draft of that document. Documents 11, 13, 15, 17, 18, 19 and 23 are either copies of the draft Bill or are documents that refer to and annex copies of the Bill, submitted to the Cabinet Standing Committee on Legislation on 15 November 1999. Document 20 is also a draft of a document submitted to the Cabinet Standing Committee on Legislation, namely, the Report of Parliamentary Counsel. This report, in turn, refers to and annexes a draft copy of the Bill. Document 22 annexes and refers to a draft of the Report.

23 The Cabinet Office submits that, in each case, the dominant purpose for the creation of all of these documents was to prepare a document for submission to Cabinet. It says that it is doubtful whether any of the documents would have been created but for submitting the draft Bill to Cabinet and therefore, it may even be possible to contend that the "sole purpose" for their creation was for submission to Cabinet. The Cabinet Office submits that the relevant test is satisfied here.

24 Section 57(3) of the FOI Act provides that if the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. In this case, I only have before me the statement of Ms Sanderson going to this question. As already noted, some evidence was received confidentially in support of the applicability of the Cabinet documents exemption. None of the affected documents were produced to the Tribunal.

25 Mr McGuirk has not sought to challenge Ms Sanderson’s statement. I am satisfied that her evidence provides reasonable grounds for the claim. I am satisfied after having regard to Ms Sanderson’s open statement that these documents fall within this sub-category.

Clauses 1(1)(e)

26 The Cabinet Office relies on this clause in relation to documents 4-23. Clause 1(1)(e) provides that a document is exempt if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. This exemption is directed to securing the maintenance of Cabinet confidentiality, and goes beyond seeking simply to secure the protection of the formal documentation of Cabinet (which is the concern of exemptions (a), (b), (c) and (d)). In Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 the Tribunal’s President observed that it is, perhaps, the most important exemption in terms of maintaining the traditional convention.

27 Varying views are found in the case-law as to the interpretation to be given to the words ‘deliberation’ and ‘deliberative processes’. In Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 the Tribunal’s President referred to this at paragraphs [44] and [46] to [47]:

“44 Ms Allars drew attention to varying views found in the case-law as to the interpretation to be given to the words ‘deliberation’ and ‘deliberative processes’. She contrasted what she saw as a narrower approach in cases such as Re Birrell and the Department of Premier and Cabinet (Nos 1 and 2) (1986) 1 VAR 230, Re Mildenhall and Department of Premier and Cabinet (1995) 8 VAR 284, Re Porter and Department of Community Services and Health (1988) 14 ALD 403 and Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 with the broader - and she submitted more realistic approach - reflected in the decision in the Commonwealth AAT decision of 2003, Re Toomer , previously cited. [Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301] The main difference in the two approaches has to do with the extent to which it is necessary to prove in order to establish the exemption that Cabinet actually deliberated or made a decision in relation to the information which is the subject of the claim for exemption.”

“46 Under the broader approach Ms Allars submitted that it is enough to obtain the benefit of sub-category (e) to show that the information related to a matter of concern to Cabinet, even if neither the information nor the matter was ultimately the subject of discussion, careful consideration or decision-making. Ms Allars referred to the passage in Re Toomer where the Tribunal described the deliberations of Cabinet as ‘its thinking processes be they directed to gathering information, analysing information or discussing strategies’ at [88].

47 On this occasion it is not, the Tribunal considers, necessary to form a concluded view on the difference in the approaches found in the case-law of other jurisdictions with exemptions equivalent to sub-category (e).”

28 In National Parks the Tribunal’s Deputy President Hennessy observed at paragraphs [36] to [37]:

“36 A narrower view was taken by the District Court in Simos v Wilkins (unreported, District Court, NSW, Cooper J, 15 May 1996.) Cooper J discussed the relationship of Cl 1(a) with Cl(1)(e) at p 17:
It seems to me that in most circumstances cl (1)(a) is mutually exclusive with cl 1(1)(e). The former refers to the preparation of the document and requires consideration of the facts and circumstances and purposes of the preparation which by definition must take place before a Cabinet meeting. Such a document, therefore, would not normally contain matters the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

On the other hand, cl 1(1)(e) appears to refer to a document which contains matter which came into existence either during or after a meeting of Cabinet so that it can disclose the information referred to therein.

37 In my view the mere fact that a document, or part of a document, went before Cabinet or was considered by Cabinet when deliberating or reaching a decision, does not make the information in that document, information “concerning” any deliberation or decision of Cabinet. I agree with the comment of Albietz J in Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 141, where the Commissioner said “only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet ... are capable of disclosing” Cabinet deliberations. A broader interpretation is not consistent with the ordinary meaning of the words and would allow agencies to abuse the exemption by attaching documents to Cabinet submissions in an effort to avoid disclosure under the FOI Act.”

29 The Cabinet Office submits that the correct proposition is that found in Re Toomer and Department of Agriculture, Fisheries and Forestry where it was emphasised that it is not necessary that a formal decision be made as a result of the thinking processes for these processes to constitute a "deliberation". Forgie DP noted at [88]:

"[The Cabinet's] deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusion as to courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed".

30 The Cabinet Office submits that the word "deliberation" refers to the preliminary processes before a final decision is reached. It has been interpreted to mean "careful consideration with a view to the making of a decision": Re Birrell and Department of Premier and Cabinet (nos 1 and 2). It says that there is no reason why a deliberation must necessarily result in a formal decision being taken, the subsequent fact that a conclusion is not reached is not relevant to the character of any preliminary discussions or actions taken. Such actions would still constitute "deliberations".

31 Similarly, it submits that the word "concerning" is "of wide import". It refers to views expressed by Rolfe J in O'Connor v Leaw Pty Ltd (1994) 42 NSWLR 285 where his Honour stated at 303:

The question is whether the words “concerning the agreement” are sufficiently wide to encompass a claim on a quantum meruit. In my opinion they are. “Concerning” has been defined as “regarding”, “touching”, “in reference or relation to”, and “about”. It is, accordingly, a word of wide import, and was held to be, albeit when used in conjunction with “arising out of”, in Kathmer [ Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (AD)] . ...

32 Accordingly, it argues, information that "concerns" a "deliberation" of Cabinet is any information "about" its thinking processes, or the preliminary steps it has taken before reaching a decision regardless of whether a decision is, in fact, reached.

33 The Cabinet Office submits that a document may reveal information about the deliberations or decisions reached in two ways. First, when a document is created at the same time as or shortly after the decision making process then it will be "concerning" a deliberation or decision of Cabinet. Such a document may either expressly form a record of the deliberative and decision making processes (such as a file note or minute recording what was discussed during a particular Cabinet meeting) or may, as a result of amendments or changes made to that document, indirectly evidence the matters decided at the meeting which led to those changes. For example, whenever a document is created or amended as a result of the deliberations that took place in a Cabinet meeting, it would be possible from the amendments made, to determine what was decided, since these amendments would have come about as a result of what was decided during that Cabinet meeting.

34 It also submits that a document created before a deliberation or decision of Cabinet may, nonetheless, contain information "concerning" the deliberative and decision-making processes. I do not think that this submission is inconsistent with the view of the Deputy President in National Parks that “the mere fact that a document, or part of a document, went before Cabinet or was considered by Cabinet when deliberating or reaching a decision, does not make the information in that document, information "concerning" any deliberation or decision of Cabinet.” The facts of each case will need to be considered to determine whether or not a document in fact concerns “any deliberation or decision of Cabinet”.

35 I agree that only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet are capable of disclosing Cabinet deliberations, however Clause 1(1)(e) is not merely concerned with “disclosing Cabinet deliberations”. It also concerns “information concerning any deliberation or decision of Cabinet”. This is a broader concept.

36 What needs to be decided is whether, as a matter of fact, the documents contain matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. In my view it is possible that a document that pre-dates a Cabinet meeting could still contain information that is "relevant to" or "about" the deliberative or decision-making process. I agree with the Cabinet Office’s submission that documents created before a Cabinet meeting which are deliberated upon during that Cabinet meeting may profoundly influence the course of any debate or discussion that takes place during that meeting and hence, any deliberations made during that meeting. For example, a Cabinet Minute that contains a series of recommendations upon which Cabinet deliberates logically contains subject matter that is "relevant" to or "about" these deliberations. At the very least, such a document "concerns" these deliberations because it helped to shape the course of these deliberations. To the extent that any document is so central to a Cabinet meeting that it shapes the course of, or outcome of, any deliberations of Cabinet, the disclosure of its contents could reveal information concerning the process of deliberation or decision-making.

37 I also agree with the Cabinet Office’s submission that a document (such as a briefing note), which reveals the contents of a Cabinet Minute, could reveal the views of the Minister as submitted to Cabinet subsequently. For example, a briefing note may recommend that a Cabinet Minute be prepared proposing a particular course of action. The Minister endorses the proposal set out in the briefing note and the recommendations contained therein and the agency prepares a Cabinet Minute accordingly. The Cabinet Minute is subsequently submitted with a briefing note which summarises the content of the Minute and the Minute is signed by the Minister and submitted to Cabinet. The Cabinet Minute contains the views of the Minister which were presented to Cabinet. Release of either of the briefing notes would reveal the views subsequently put to Cabinet by the Minister in that Minute, even though the briefing note was prepared before the matter was submitted to Cabinet. Release of the briefing note would be inconsistent with collective Ministerial responsibility and the document would fall within the exemption provided by clause 1(1)(e).

38 In the present matter, the Cabinet Office submits that the documents "concern" these deliberations due to the fact that Cabinet has either actually considered all these documents in the course of its decision-making process, the contents of documents deliberated upon by Cabinet are disclosed in other documents (in particular briefing notes), or these documents postdate the deliberations and comprise a record of its deliberations.

39 Document 8 is a document that forms a record of the discussions and deliberations of Cabinet during that Cabinet meeting.

40 Pursuant to clause 1(4), a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet. The evidence is that documents 11, 13, 17, 19, 20 and 21 were submitted to the Cabinet Standing Committee on Legislation. Documents 12, 15, 18, 22 and 23 were drafted in response to deliberations made in a Cabinet meeting on 8 November 1999. The Cabinet Office argues that the proposal made by Cabinet on that occasion could be ascertained by the specific contents and amendments to each of these drafts by comparison with each other or with the final copies of these documents.

41 Documents 4, 9, 10 and 14 were created subsequent to, and refer to the proposal of, Cabinet and how to give effect to it in legislation, their disclosure would reveal the deliberations of Cabinet surrounding this proposal. Further, the communications concern the content of the Bill which was subsequently submitted to the Cabinet Standing Committee on Legislation for approval and would reveal the contents of the Bill in the form approved by the Premier and subsequently deliberated on by the Committee.

42 Documents 7 and 16 are briefing notes each of which refers to and annexes a copy of Cabinet Minute. While the briefing notes were not themselves deliberated on, the Cabinet Minute has been deliberated upon and these documents would reveal the views of the Premier, as contained in the Minute, which was subsequently submitted to Cabinet.

43 I am satisfied after having regard to Ms Sanderson’s statement that documents 4 and 7-23 are restricted documents falling within this sub-category.

44 In my view, all the documents are restricted documents falling within the Cabinet exemption. Therefore, it is not necessary for me to consider whether they are exempt documents by virtue of being internal working documents or whether they are legally professionally privileged. Similarly it is not necessary for me to consider the Cabinet Office submission with respect to the applicable standard of proof and whether the test that must be applied by the Tribunal is that in section 57(4) of the FOI Act or that in section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). In practical terms, this will not make a difference to the outcome of the present case. Ms Sanderson indicated her belief that the documents fell into the categories set out in her statement. This evidence is sufficient to meet either test. In the decision of BY v Director General, Attorney General's Department [2002] NSWADT 79 the Tribunal’s President found there to be no inconsistency between section 57 and section 63. I do not propose to revisit the issue in this matter.

Public Interest Issues

45 Mr McGuirk has asserted that that The Cabinet Office is required to consider whether there is a public interest in releasing the documents in all cases where an exemption is claimed. The Cabinet Office submits that this is incorrect. It contends that there is no need to apply a public interest test where a document is claimed as an exempt Cabinet document pursuant to clause 1 of Schedule 1 of the FOI Act. It further submits that the Tribunal does not have what is commonly referred to as a "public interest override" if it determines that the documents should be classed as exempt documents.

46 The decision of Mangopolah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 is sometimes argued as authority for the proposition that, once it is accepted that section 63 forms the basis for the jurisdiction of the Tribunal in relation to restricted documents, it also gives the Tribunal the power to consider the public interest in determining whether or not a document should be released. This is because section 63 of the ADT Act enables the Tribunal to exercise the functions of a decision maker including the discretion that purportedly lies in sections 24 and 25 of the FOI Act. An implied part of this discretion is the public interest. In practical terms, this means that even if the Tribunal has determined that a document is an exempt document, it can exercise the implied discretion of the decision maker to consider the public interest and nonetheless release these documents.

47 In BY, the Tribunal’s President counselled caution before the Tribunal imported public interest requirements into the exempt documents test and noted at paragraph [75] – [76]:

"There is a line of decisions in the Tribunal to that effect, starting with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. There has been no instance in which the Tribunal, having affirmed an agency determination that a document is an exempt document, has acceded to a public interest submission from the review applicant that disclosure should be ordered.

76 I do not see this as an appropriate case in which to address this issue in detail as it is one that should ideally be dealt with at Appeal Panel level."

48 In Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 the President stated at paragraph [83]:

“83 Accordingly in my view it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25, that a Minister or agency release an otherwise exempt document. That discretion remains entirely with the Minister or agency.”

49 The Cabinet Office submits that the issue has been conclusively decided. This is despite comments made by Deputy President Hennessy at paragraphs [40] and [41] of National Parks which could be read as leaving the issue open for further consideration. The Deputy President stated:

“40 The Department submitted that, if the report is exempt, the Tribunal does not have any discretion under s 25(1)(a) of the FOI Act to release it. Section 25(1)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document. The Department said that, while this section gives the agency a discretion to release an exempt document, the Tribunal is not exercising power under s 25 when it is reviewing an agency’s decision. (See Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at 88 per Smith JM.)

41 As the Tribunal has concluded that the document is not exempt, the question of whether it should grant access to the document notwithstanding a finding that it is exempt, does not arise.”

50 The matter has now been resolved by Nicholas J in his recent decision in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. He stated at paragraphs [102] – [103]:

“102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

103 It follows that with respect to the overriding discretion issue I respectfully disagree with the conclusion expressed in Neary (para 83) that it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25 FOI Act that a Minister or agency release an otherwise exempt document. In my respectful opinion the following passage from Mangoplah correctly states the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

51 The Tribunal’s discretion to order access to exempt documents is to be exercised with regard to the material then before it. In light of this decision it is appropriate that the parties have an opportunity to present argument with respect to how the Tribunal’s discretion should be exercised. The matter should be set down for further directions in respect of the outstanding matters.

Order

The matter is to be set down for further directions on Monday, 5 February 2007 at 9.30a.m.