McKinnon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 161

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V 2006/1031
GENERAL ADMINISTRATIVE DIVISION      )          

Re:MICHAEL McKINNON

Applicant

And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

Tribunal:  Deputy President S A Forgie

Place:  Melbourne

Date:  27 August 2008

CORRIGENDUM TO DECISION [2008] AATA 161

The Tribunal amends its decision and reasons for decision published on 27 February 2008 as follows:

(1)insert the words “the respondent” before the word “affirmed” in the last line of paragraph 1;

(2)insert the word “prior” before the word “education” in the first bullet point contained in paragraph 6;

(3)delete the word “covered” and replace with “cover” in the second sentence in paragraph 10;

(4)insert the word “with” before the words “the proposition” in the penultimate sentence in paragraph 29;

(5)delete the word “on” after the words “but are provided” in the fourth sentence in paragraph 34;

(6)insert the word “not” before the words “accept that it is necessary” in  paragraph 59 in the second sentence of the quote;

(7)delete the duplicated phrase: “and the use of the word ‘ongoing’ strongly suggests currency,” from the last sentence in paragraph 98 in the first paragraph of the quote;

(8)insert the word “an” before the word “agency” in the second sentence of paragraph 111;

(9)

delete the sentence beginning with “Notations” and ending in “completion” in paragraph 114 and substitute the following sentence: “Notations at the beginning of certain sections indicate that fact together with the reasons for their being incomplete and what is required of their completion.”

S A FORGIE

Deputy President

CATCHWORDS – FREEDOM OF INFORMATION –  consultant’s draft report and report – whether disclosure contrary to the public interest – whether disclosure affects relations with the States – whether disclosure would have a substantial adverse effect on proper and efficient conduct of agency’s operations – disclosure of draft report contrary to the public interest - decision set aside in relation to report.

Administrative Appeals Tribunal Act 1975 s 37
Freedom of Information Act 1982 ss 3, 4, 11, 22, 24, 24A, 33, 33A(1)(a)-(b), 33A(5), 34, 36, 37, 39, 40(1)(c)-(d), 43, 44, 58(5) and 61

Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Bartlett v Secretary, Department of Social Security (1997) 49 ALD 380

Booker and Department of Social Security AAT 6189, 13 September, 1990
Collins v Parker Unreported, SC (NSW), 11 May 1984

Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577; 54 ALJR 534; 30 ALR 599; (1980) 4 ALD 227

Commonwealth of Australia v Lyon (1979) 24 ALR 300
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Ellison v Vukicevic (1986) 7 NSWLR 104
Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445

Harris v Australian Broadcasting Commission (1983) 51 ALR 581

Harris v Australian Broadcasting Corporation and others (1983) 50 ALR 551; 5 ALD 545
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; 106 ALR 611
Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Kelly v JRA Ltd (1990) 92 ALR 651

Marco Ascic v Australian Federal Police (1986) 11 ALN N184
McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
McKinnon v Secretary, Department of the Treasury (McKinnon) (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Connolly and Department of Finance (1994) 34 ALD 655

Re Environment Centre NT Inc and Department of Environment (1994) 35 ALD 765

Re Guy and Department of Transport (1987) 12 ALD 358
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors (1979) 27 ALR 367; 42 FLR 331

Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Re James and Others and Australian National University (1984) 6 ALD 687

Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Re McKinnon and Secretary, Department of Prime Minister and Cabinet [2007] AATA 1969

Re Millis and Australian Archives (1997) 47 ALD 427
Re Murtagh and Commissioner of Taxation (1984) 54 ALR 313; 6 ALD 112
Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392
Re Petroulias and Commissioner of Taxation [2006] AATA 333; (2006) 62 ATR 1175
Re Richardson and Commissioner of Taxation (2004) 81 ALD 486; [2004] AATA 367

Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20
Re State of Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158

Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588

Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163; 36 FCR 111

Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

DECISION AND REASONS FOR DECISION [2008] AATA 161

ADMINISTRATIVE APPEALS TRIBUNAL     )

)       V 2006/1031
GENERAL ADMINISTRATIVE DIVISION     )

Re:MICHAEL McKINNON

Applicant

And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  27 February 2008
Place:  Melbourne

Decision:                   The Tribunal has decided to:

1.set aside the decision of the respondent dated 26 October 2006; and

2.        substitute a decision that:

(1)the document that is undated and that is not described as a draft report is not exempt from disclosure under the Freedom of Information Act 1982; and

(2)the document that is dated May 2006 and is described as a Draft Report is exempt from disclosure under
s 36(1) of the Freedom of Information Act 1982.

S A FORGIE
  Deputy President

REASONS FOR DECISION

When he was working for The Australian newspaper, Mr Michael McKinnon asked what was then the Department of Families, Community Services and Indigenous Affairs (FaCSIA) for access to certain documents under the Freedom of Information Act 1982 (FOI Act).  As a result of the Administrative Arrangements Order made on 3 December 2007, FaCSIA was renamed as the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).  Its functions relevant to early child hood and child care policy and programmes were transferred to the Department of Education, Employment and Workplace Relations (DEEWR).  As FaCSIA had not been abolished but had simply been renamed, it remained an agency within the meaning of s 4(1) of the FOI Act.  Although the function relating to the subject matter of the request had been transferred to DEEWR under the Administrative Arrangements Order, s 4(6) of the FOI Act did not operate to deem the request to have been made to DEEWR.  The documents requested related to work that the Edith Cowan University (ECU) had undertaken for the Department and that related to the childcare needs and preferences of indigenous families and children across Australia.  The Department advised Mr McKinnon that ECU had not produced a final report.  There are two documents with one described as a Draft Report and dated May 2006 and the other prepared at a later time and bearing no reference to its being a draft.  The Department decided to refuse the request on the basis that the documents were exempt from disclosure under ss 33A(1)(a) and (b), 36(1)(a) and (b) and 40(1)(c) and (d) the FOI Act.  That decision was made on 20 September 2006 and affirmed that decision on 26 October 2006. 

1. As far more time than I would have liked has passed between the hearing and my giving my decision, I asked those representing FaHCSIA whether it wished to lead any further evidence to support its claims for exemption. It declined to do so. As I knew by then what my decision would be in the absence of any further evidence, I did not consider it necessary to give Mr McKinnon a similar opportunity to lead further evidence and did not do so. I have decided to set aside the decision of the respondent dated 26 October 2006. In its place, I have substituted a decision that the document that is undated and that is not described as a draft report is not exempt from disclosure under the FOI Act. I have also decided that the document that is dated May 2006 and is described as a Draft Report is exempt from disclosure under s 36(1) of that legislation.

BACKGROUND

1. Ms Kathryn Shugg was the Branch Manager, Child Care Services and Policy, in the former FaCSIA and had held that position since 5 July 2006.  In that position, she is responsible for the development and delivery of policy and programmes to support and strengthen Australian families to ensure a better start in life for all children.  Ms Shugg’s evidence was directed, in part, to the effect of disclosure of the documents on the operations of FaCSIA as it then was.  In view of the fact that s 4(6) of the FOI Act makes no provision for the request to be deemed to have been made to DEEWR, which now has responsibility for the relevant function, her evidence remains relevant.  That is to say, the issues that arose at the hearing are not affected by the changes in administration effected by the Administrative Arrangements Order issued in December 2007. The evidence remains relevant to them.  I will address them in terms of FaCSIA as did Ms Shugg although, for the purposes of naming the respondent in these proceedings, I recognise that its name is now FaHCSIA.

Role of FaCSIA in relation to provision of child care services to indigenous people

1. The Commonwealth provides a number of child care related programmes, which are intended to ensure that families can have access to quality child care services.  It does not deliver child care services itself as services are provided through private providers, community based providers and some State, Territory and Local government agencies.  Instead, at the relevant time, FaCSIA assisted families to meet the cost of child care, administers financial support to child care services in areas of need and administers a “quality assessment framework”.[1]  State and Territory governments have responsibility for the regulation of child care services.  Their regulation includes the specification of child to staff ratios and staff qualifications.  Negotiation and cooperation among all levels of government is essential in order to provide child care services to indigenous families in circumstances in which many face significant disadvantage and are sometimes located in remote communities.

   [1] Exhibit 1 at [10]

1. There are a number of fora in which the Commonwealth, State and Territory governments are engaged in negotiations about the way in which child care services should be delivered generally and, in particular, to indigenous families.  In the past, early childhood and child care have been identified as priority areas within the Human Capital stream of the Council of Australian Governments (COAG) National Reform Agenda (NRA).  A communique was issued by COAG on 14 July 2006 indicating that it had given Departmental officers the task of “completing specific reform proposals for its consideration at its next meeting.”[2]  The “high level outcomes” to which the reform proposals were directed included an outcome to:

   “… improve the proportion of children acquiring the basic skills for life and learning (subsidiary outcome: The gap between Indigenous and non-Indigenous children is closed).”[3]

   [2] Exhibit 1 at [14]

   [3] Exhibit 1 at [14]

1. The Ministerial Council on Education, Employment, Training and Youth Affairs released a report entitled Australian Directions in Indigenous Education 2005-2008.  Among the recommendations that it made on early childhood education were two that related specifically to indigenous children.  They were directed to:

   “providing all Indigenous children with access to two years of high quality early childhood education to participation in the first year of formal schooling; and

   developing and implementing education programs for Indigenous children that respect and value Indigenous cultures, languages and contexts, explicitly teach standard Australian English and prepare children for schooling.”[4]

   [4] Exhibit 1 at [15]

1. FaCSIA decided to engage in a consultancy process to identify child care needs and preferences of Indigenous families and their children as well as to provide guidance for the development of new and existing Indigenous child care services.  The results of the consultation process were to be used in the decision-

making process.  In so far as FaCSIA was concerned, the consultant was to be:

“…asked to make recommendations about future developments in Indigenous child care services.  The tender was specific about what was required.  It did not ask for development of the Indigenous Child Care Plan or for policy options for consideration by Government.  The Indigenous stakeholders’ views gathered through the consultation process, while vital to the development process, were one part of the input sought by FaCSIA in order for it to develop policy options for government.”[5]

[5] Exhibit 1 at [19]

The Edith Cowan University and the consultancy

1. FaCSIA called for tenders from suitably qualified consultants to undertake national consultations with the purpose of obtaining information it required from targeted stakeholder groups.  As a result of the tender process, the ECU entered a contract with FaCSIA to provide consultancy services in two main areas.

1. On the basis of Ms Shugg’s evidence, I find that the first aspect of the consultancy was to undertake national consultation with child care providers, Government agencies, families and carers to gather data identifying the needs and preferences of Indigenous families and children across Australia between 26 July 2005 and 30 June 2006.  The results of that consultation were to be used in the Commonwealth’s consideration of the child care models that might prove suitable.  As part of that task, the ECU had to develop and deliver a deliberative forum to major stakeholders who were consulted to discuss the findings of the consultation process.[6] 

   [6] Exhibit 1 at [17] and oral evidence

1. The second area of consultancy services provided by the ECU was to produce a draft report, which was to be followed by a final report, setting out the findings of the consultation process.  It was to covered a number of specific issues listed in Schedule 1 to the contract between the Commonwealth and the ECU.[7]  It was envisaged that the report would be used to record the consultation process.  That would, in turn, be used in the development of policy options available to the government.

[7] Exhibit 2 but tendered and admitted in evidence on the basis that access to it was limited to the members and staff of the Tribunal and the respondent and its officers and legal representatives.

The report produced by the Edith Cowan University

1. On 31 May 2006, the then FaCSIA received a copy of a draft report from the ECU.  From FaCSIA’s point of view, that report did not address a number of specific issues identified in the consultancy contract.[8]  In its view, the draft report went far beyond the scope of the brief and trespassed on areas that were not the subject of the tender.  FaCSIA wrote to the consultants advising that it could not accept the report.[9]

   [8] I make no finding on whether it did or did not do so as I do not have the evidence on which to make such a finding on this or on the other issues on which FaHCSIA has expressed a view.  In any event, I do not consider that it is necessary to make a finding in order to come to a decision in this matter.

   [9] Exhibit 1 at [21]

1. The ECU provided a further draft report to FaCSIA on 6 July 2006.  Again, in FaCSIA’s view, the draft report not only failed to address all of the requirements of the contract but went beyond the scope of the tender by purporting to make recommendations as to policy outcomes.  ECU had not been asked to make such recommendations.[10]

   [10] Exhibit 1 at [22]

Termination of the consultancy

1. After further correspondence between them, FaCSIA terminated the consultancy on the basis that the ECU had not delivered a report that answered the tender within the stipulated time.  On FaCSIA’s view, the ECU did not produce a final report.

The request under the FOI Act

1. On 11 April 2006, FaCSIA received a request from Mr McKinnon, then of The Australian, dated 30 March 2006.  In it, Mr McKinnon requested access to:

   “… documents arising from a consultancy to the department carried out by Edith University [sic] to identify child care needs and preferences of indigenous families and children across Australia.

   The final report by the consultant is likely to fulfil the scope of this request although I may be interested in draft versions of any report on the issue if no final copy exists or if draft versions differ substantially from any final version of the consultant’s report.”[11]

   [11] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 12

1. After pointing out the discrepancy between the name of the University that had undertaken the consultancy and that referred to in the request, FaCSIA advised Mr McKinnon that it would consult with the ECU.  That it did in a letter dated 20 April 2006.  It also advised that the FOI Act provided for an additional 30 days within which to consult with the ECU regarding any contentions it might have regarding the potential release of the documents to Mr McKinnon.  The letter also advised that:

   “… The Act also provides that an internal review and/or appeal process initiated by an affected third party must be completed before the department can make a decision about the release of documents to you.”[12]

   [12] T documents at 16

1. In a letter dated 21 August 2006, a delegate of the Secretary of FaCSIA advised Mr McKinnon of the decision on its request.[13]  Relying on s 24A of the FOI Act and as a final report did not exist at the date of its request, that part of its request was refused.  As for the draft versions of the ECU’s report, exemption was claimed under ss 33A(1)(a) and (b), 36(1)(a) and (b) and 40(1)(c) and (d).  In so far as the public interest was relevant, it was decided that disclosure would not be in the public interest.

   [13] T documents at 17-23

1. Mr McKinnon sought internal review of the decision in a letter dated 20 September 2006.[14]  FaCSIA affirmed the decision on 26 October 2006.  It again relied on s 24A in relation to Mr McKinnon’s request for a final report and on
   ss 33A(1)(a) and (b), 36(1)(a) and (b) and 40(1)(c) and (d) in relation to the draft reports that it acknowledged were in existence.[15]

   
   

   [14] T documents at 24

   [15] T documents at 25-33

1. In a letter dated 6 February 2007, FaCSIA wrote to the ECU to advise it of the fact of the application that Mr McKinnon had made to the Tribunal and of the Department’s position in relation to that application.  It expressed its position in this way:

   “The Department contends, amongst other things, that release of the draft document would be against the public interest because it is a draft document that did not meet the requirements of the tender between the Department and the Edith Cowan University, including by not addressing the specific issues raised in the tender and, in some cases, extending beyond the terms of that tender.  The Department contends that there is a risk of confusion because the document might be taken to suggest that the Government has either reached certain views on the issues discussed or rejected a report that it had commissioned.  As you will recall, the Department has maintained that the draft report did not answer the tender requirements.”[16]

Although offering to answer any questions, the letter did not require a response and has received none. 

THE EVIDENCE

[16] Exhibit 4

The context in which FaCSIA and the ECU entered the contract

1. In giving evidence, Ms Shugg said that FaCSIA was in the process of developing an Indigenous child care plan.  Consequently, it wanted to gain a better understanding of the views of the industry stakeholders about the child care that is already provided and whether it met the needs of those requiring child care.  FaCSIA wanted an independent professional group to gather the information.  That information would then be taken with information from other sources in developing an Indigenous child care plan.  Although she had not occupied her position at the time the ECU’s tender was accepted, she understood that it had met the requirements of the tender called for.  As a basic part of the requirements was to undertake consultations, FaCSIA had been looking for competency in consultancy.

1. The idea behind having a draft report followed by a final report was to enable officers of FaCSIA to gain an understanding of the sort of information that the ECU had gathered and to enable them to talk to the consultants before the preparation of the final report.  The final report had two purposes behind it.  The first was to create a feed back loop with people who had participated in the consultation.  At the time of the hearing, FaCSIA was developing a document that was to be circulated to those who had participated in the consultation in order to give them feedback.  It was discussing the document and the best way to undertake the task with the non-government peak Indigenous child care body i.e. the Secretariat of National Aboriginal and Islander Child Care (SNAICC).  The document they had prepared set out the sorts of issues that had been raised during the consultation. 

1. The second purpose behind the final report was to enable FaCSIA to use the information to develop its position before it entered negotiations with the States or other stakeholders.  It would also use the information to develop an Indigenous child care plan.  It would also use the information more generally. 

1. The Commonwealth, Ms Shugg also said in cross examination, has responsibilities in relation to both Indigenous child care and child care generally.  It is engaged in the continuous improvement of its policies.  Both the Commonwealth and the States recognise that Indigenous people are socially disadvantaged.  A number of meetings of COAG had indicated that the Commonwealth was interested in looking at Indigenous policies.  Ms Shugg agreed with Mr McKinnon’s suggestion that the existing policies were not perfect.  She also agreed with his proposition that there is a public interest in the public’s being able to assess the performance of any government’s policies.

1. Ms Shugg said that the then government had not had an opportunity to consider all of the information and to consider the direction in which it wanted to go.  That was so because it had not then had an opportunity to consider all of the information.

1. Ms Shugg confirmed Mr McKinnon’s understanding that the documents included some options for consideration by government.  When asked whether that meant that the public interest favoured releasing the documents because they provided an alternative view, Ms Shugg replied that government had not made a decision about its policy.  It was still in the deliberative stages and there were consultations to be had with others apart from the industry stakeholders.  In her view, the document provided one approach from one stakeholder but not a model approach.  Government had started the consultancy process but it was still ongoing.

1. As to the document itself, Ms Shugg said during cross-examination that it does not repeat what people said during the consultations but it tries to capture the information that they brought to them.  FaCSIA had attended a number of meetings and the information provided had proved very useful.  That was not to say that FaCSIA had accepted part of the report and rejected part.  It had rejected the report in its entirety because it did not meet the second part of the tender.  The contract with the ECU was terminated before it was fully paid out.  There have been a number of discussions between FaCSIA and the ECU both before and after the termination of the contract.  Both FaCSIA and the ECU accept that the contract has been terminated and the ECU has taken a very facilitative approach as to whether the tender has been met.

1. Ms Shugg agreed with Mr McKinnon that it was fair to say that certain aspects of the draft report were being used.  The report has been read and, because of FaCSIA’s commitment to provide feedback, the information has been used.  When asked whether the document would usefully inform FaCSIA, Ms Shugg replied that, in terms of providing a document for a feedback report, the best source of information was the report.  It should be remembered, though, that some of FaCSIA’s officers attended the meetings and so it is not black and white as to the source of particular information.

1. Ms Shugg rejected Mr McKinnon’s suggestion that FaCSIA had not paid ECU because it had not taken its policy options on board.  When he put the proposition that surely the information had not been discarded because the ECU went too far in its report, Ms Shugg said that the reasons for ending the tender were two fold.  FaCSIA had set out a range of issues that it wanted addressed.  The first was that the report did not address all of them and the second was that the report went outside the scope of the tender to points that were not asked for. 

1. There had been a number of discussions with SNAICC and it had made known its disappointment with some of the information in the ECU’s report.  It supported FaCSIA’s decision to terminate the contract in that the document did not adequately reflect its views.  After the contract was terminated, SNAICC had indicated that the documents did not always properly reflect the consultations that had taken place.

1. When asked whether the government had used the material in any event even though it went outside the scope of the tender, Ms Shugg said that it had not used it as such or rejected it as such.  Ideas come from a range of different sources.  FaCSIA is collating and synthesising information.  It may be that, at the end of the process, it ends up with something that looks like the material in the report.  Therefore, she disagreed the proposition that FaCSIA had rejected what was in the report.  It may or may not be the case that the ECU’s policies become those of the Department.

The consequences of disclosure of the document

1. With regard to the claim for exemption under s 33A, Ms Shugg said that she had not written to the States and Territories seeking their views on the release of the document.  In her view, release of the document would damage Commonwealth and State/Territory relations.  There are a number of such relations touching on the issue.  It has been a matter of robust discussion where some States have different views from other States in some instances and the Commonwealth has a different view from the States.  The release of the document into an environment in which it could purport to put forward the views of government would affect negotiations.  There are no letters to that effect from State and Territory governments.  Ms Shugg could not point to any examples of situations in which the release of a document had led to the breakdown of relations between the Commonwealth and the States and Territories but, as she explained, she had only been in the position for six months. 

1. There would be several substantial adverse effects on the manner in which FaCSIA conducts its operations, Ms Shugg said.  One effect is on the way in which FaCSIA undertakes its consultations.  In order to gather information, people need to be open and give FaCSIA the benefit of their views.  When trying to work with groups of socially disadvantaged people, it is necessary to instil trust in them.  Disclosure would have a detrimental effect on that trust.

1. Another effect of disclosure of the document would be on the development of the Indigenous child care programme.  If the document and its contents were seen in a negative light, it would not be possible to achieve the same outcome.  That would be a disastrous outcome.  When asked by Mr McKinnon for any evidence that there may be negative connotations, Ms Shugg replied that she was not suggesting that the document would be read in that way.  Her concerns were more about the expectations that would be built up by the document only to have them addressed in a different way.  That could lead to a negative reaction to the concept of Indigenous child care and stop FaCSIA in developing a child care plan. 

1. In response to Mr McKinnon’s proposition that the logic behind her view is that the document will be seen as the government’s report, Ms Shugg responded that, even if the options in the document were seen as options being viewed by government, they may be viewed as options the government is not able to meet.  The government is considering all reasonable options and not all options as put to her by Mr McKinnon.  It is not the case that the government necessarily disagrees with the document prepared by the ECU, Ms Shugg said in re-examination.  The government was yet to determine its policy and has not yet had the opportunity to agree or disagree. 

1. Earlier in cross-examination, she said that Indigenous people had told officers of FaCSIA that they regard the cultural appropriateness of child care as very important.  It is very easy to have expectations about such things that cannot be met by government.  The risk of not meeting expectations is a serious one.  If there is an expectation that people will be provided with service X in child care but are provided on with a modified version of service X, there is a risk that the response would be not to use child care services.  When asked to explain why the release of information would lead to that result, Ms Shugg replied that it would not necessarily be seen to the same extent in the Indigenous community, but there is a high risk that it would happen.  The perception is that the quality of care provided is linked to the government’s attitudes to Indigenous policy.  Some of that information came though in the consultations but not necessarily in the formal surveys.

1. Ms Shugg also saw a further problem if the document were disclosed.  If disclosed, it might be thought that it represents the Commonwealth’s position.  Once released, FaCSIA would have no control over the use that is made of the information that is in the document.  It could follow that there is reporting of information in the document that is misinformation.  When asked whether people would really get the idea that people would form a view or draw a conclusion that the draft report reflected the government’s view, Ms Shugg replied to the effect that they could from the way the information is presented.  When asked by Mr McKinnon whether anyone reading her affidavit would come to the view that the report represented the government’s view, Ms Shugg said that they would not.  Expressing his agreement with her, he then asked why, given her affidavit and FaCSIA’s Statement of Facts and Contentions, would someone draw the conclusion that the document did represent the government’s views.  Ms Shugg said that it was an easy conclusion to draw if it was thought that the government had purchased the report from the ECU.  She agreed with Mr McKinnon that she would expect that the Department would move to clarify its position if the document were released.  She rejected his suggestion that it would embark on a significant advertising campaign as it does not have money in its budget for that purpose.  When the comparison was drawn with the advertising campaign conducted in relation to the introduction of the Goods and Services Tax, Ms Shugg explained that she did not have any expertise in the area.

1. The Commonwealth has had a number of strategies in place and has been revisiting all policy options, Ms Shugg said.  When asked in cross-examination whether it is possible that the policy options in the document are critical of existing Commonwealth policies, Ms Shugg replied that it was not her reading of the document.  The policies had been put forward in positive terms rather than in critical.  It is not an area in which there is only one way to do things as it is all a matter of degree.  Ms Shugg could not see how knowledge of policies alternative to those to the government could inform the public.  She agreed with Mr McKinnon that some of the policy options presented in the ECU’s document are alternatives to those that are part of Commonwealth policy.

1. Ms Shugg agreed with Mr McKinnon that it may be useful for the Australian public to be informed of views coming from a credible source but said that disclosure depends on the extent to which it inhibits government from moving forward.  Her understanding is that there have been improvements over time in the delivery of health and child care services.  There is a way to go and the States and Territories have said that themselves.  When asked whether the document would assist people to make a judgment on what the government has done, Ms Shugg replied that it is more important that government can deliver its policies, move forward and improve standards.  The document gives no evidence about the progress in the area.  It reports a range of views from one set of stakeholders and what they would like.  The document does not give any indication of the progress that has been made in the area.  COAG has commissioned a regular report on progress in the delivery of Commonwealth and State and Territory services but that relates to certain infant deaths.  Ms Shugg agreed with Mr McKinnon that there is a public interest in the public’s being able to assess the performance of the government’s policies.

1. Ms Shugg illustrated her concerns about the impact on negotiations that the Commonwealth has with the States and Territories by reference to COAG.  COAG has had a Human Capital Agenda and early childhood issues come within that agenda.  Officials are required to look at the way forward with regard to early childhood.  One of the targeted outcomes is to close the gap between Indigenous and non-Indigenous children.  Therefore, the provision of childhood care is currently under negotiation in COAG.  A range of views has been put forward but the Commonwealth has a different view, Ms Shugg said.  If the ECU document were to come in on top of that, it would be seen as the Commonwealth’s view and would put back the course of the negotiations.

1. When asked why people would conclude that the ECU’s document reflected the Commonwealth’s view, Ms Shugg referred to two matters.  The first was that it was not a balanced exposition of the things they were looking for.  The second was that it is not unusual for a report to be held up as the government’s view.

1. When asked whether the document did not represent what the government wanted to see, Ms Shugg replied that it could not represent the government’s view as it had not had the opportunity to consider it.  The document did not provide the range of information that the terms of the contract required it to contain.

1. Ms Shugg said that she is well aware of the FOI Act and senior public servants would be well aware of it.  Whether she would mention the FOI Act during the course of consultations would depend on the circumstances.  During the course of consultations with community people, she would not necessarily bring it up but if having discussions with Commonwealth or State people she might do so.  She agreed with Mr McKinnon that it was not necessary to bring it up every time as it was part of good government but added that it was necessary to do so in some environments.  She could not agree with him that stakeholders had an expectation that the FOI Act would not be used as she could not speak for all stakeholders.  Their levels of education may mean that they are not aware of the legislation.  Ms Shugg said that she could not answer in a general sense a question whether the consultation processes advise that it may be the case that access to the information can be gained under the FOI Act.  She said that she had seen some that have done so.  Some stakeholders have been made aware of the FOI Act.

THE SUBMISSIONS

1. On behalf of FaCSIA, Mr Niall submitted that there were parts of the document prepared by the ECU that met the requirements of the tender and those are being used.  There are, however, parts of the document that do not meet it as they go beyond those requirements.  Those parts purport to develop a plan.  It is premature to develop a plan in circumstances in which the whole process of policy development has not been completed.

1. The authors of the report, Mr Niall noted, recognised that the report is incomplete and is yet to be finished.  At the moment, it reads as if the Commonwealth has asked for the preparation of a plan for Indigenous child care.  If released, it would give an erroneous view of the development of the policy.  It will suggest that the Commonwealth has a plan that it has rejected.  For that perception to be abroad would be quite damaging as it will suggest that the Commonwealth sought a plan and rejected it.  Release would be contrary to the public interest.  Furthermore, while release would not damage the Commonwealth’s relations with the States, it would weaken the Commonwealth’s position in its negotiations with them.

1. Release of what would purport to be a policy consideration would prejudice the proper and efficient conduct of FaCSIA’s procedures.  It would compromise the process that FaCSIA must follow because it would suggest that it has rejected a particular policy outcome and has reached a decided view.

THE LEGISLATIVE FRAMEWORK and THE AUTHORITIES

Overview of access provisions of the FOI Act

1. The right of access to documents given by the FOI Act is framed very carefully.  It is set out in s 11, which 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.

   (2)       Subject to this Act, a person’s right of access is not affected by:

   (a)any reasons the person gives for seeking access; or

   (b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”

1. The opening words of s 11 of the FOI Act impose the first qualification to the right of access it gives.  They are that the right is “subject to this Act”.  That means that regard must be had to the other provisions in the FOI Act before the extent of the right can begin to be identified.  I say “begin to be” identified for it is apparent from many of the provisions that the precise extent of the right will only be determined by, in some cases, the scope of the request and, in others, the particular circumstances pertaining to the documents. 

1. A request that seeks a large number of documents provides an example of what I mean.  If the work involved in processing the request would substantially and unreasonably divert the resources of an agency from its other operations or would substantially and unreasonably interfere with the performance of the Minister’s functions, the agency or Minister may refuse to grant access to the documents in accordance with the request.  Subject to a qualification found in s 24(6), to which I will return, it may do so without causing the processing of the request to be undertaken.  That is the effect of s 24(1) although, in reaching a decision, the agency or Minister must have regard to s 24(2) as well.  Section 24(2) shows how circumstances pertaining to the documents play a part in determining the scope of the right to access by circumscribing the matters to which regard must be had in exercising the power to refuse.  That provision requires consideration to be given to matters such as the resources that would have to be used to identify, locate or collate the documents, examine those documents and consult persons about them and the possible consequences of access being given to them.  The resource considerations relevant to s 24(2) extend to the resources required to make decisions, make copies of the documents and to notify the decisions made.  The impact that resource considerations have may vary from agency to agency according to factors such as the manner in which they maintain their records[17] and the number of persons who must be consulted as well as according to factors inherent in the scope and subject matter of the request.  If the person making the request were to take advantage of s 24(6) to modify the request so that the ground for refusal under s 24 were removed, the person’s right to access to documents then sought would be unaffected by resource considerations.  The right to have access to documents as originally sought would, or course, continue to be affected by them.

   [17] It is not relevant to explore these issues in this case but it may be necessary in an appropriate case to consider whether workload considerations due to, or example, an agency’s particular approach to record management are relevant in deciding what is an unreasonable diversion of its resources quite apart from whether the diversion is substantial.

1. Qualifications of a procedural nature and others related to the work imposed on an agency or Minister by the request are found in Part III of the FOI Act.  Of relevance in the earlier stages of this case was s 24A, which provides for situations in which the requested document cannot be found or does not exist after all reasonable steps have been taken to find it.  FaCSIA did not pursue its contention regarding s 24A at the hearing.

1. Other qualifications are concerned with the protection of “essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities”.[18]  These are found in Part IV.

   [18] s 3(1)(b)

1. In addition to these groups of qualifications, there are qualifications implicit in the words “document of an agency” and “exempt document”.  The right of access is given to a “document of an agency” i.e. it is given to:

“… a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.”[19]

As a Department, there is no question that the Department is an agency[20] or that the material requested by Mr McKinnon comes within the description of a “document”.[21] 

[19] s 4(1)

[20] s 4(1)

[21] s 4(1)

1. The right of access created by s 11 of the FOI Act does not extend to an “exempt document”.  That is, it does not extend to:

   “(a)     a document which, by virtue of a provision of Part IV, is an exempt document;

   (b)a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or

   (c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[22]

The exemptions relied on by the Department are those in ss 33A, 36 and 40. 

[22] s 4(1)

Section 33A: its general scope and exceptions

1. The general position under s 33A(1) is that:

   “… a document is an exempt document if disclosure of the document under this Act:

   (a)would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

   (b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communications on behalf of the Commonwealth or of an authority of the Commonwealth.”

1. There is a qualification to the general position and that is found in
   s 33A(5).

   
   

It provides that s 33A:

“… does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”

Section 33A: relations between the Commonwealth and the States

1. In its initial decision, FaCSIA relied on s 33A(1)(b) as well as on s 33A(1)(a) but did not do so at the hearing.  It seems to me right to abandon the claim under s 33A(1)(b) for two reasons.  The first is that, while it is clear that the ECU is not the Government of Western Australia, the parties did not address the question of whether the ECU is an “authority of a State”.[23]  As it is not a Government of a State, it must be an authority of a State for s 33A(1)(b) to apply at all.  The second is that even if it were one or the other, there is no evidence that access to the document under the FOI Act would divulge information or matter it had communicated in confidence to the Commonwealth or to an authority of the Commonwealth.[24] 

   [23] In order to come to a conclusion on that issue, regard would need to be had to the provisions of the legislation defining its powers and functions (the Edith Cowan University Act 1984) and to all relevant circumstances.  They would have to be viewed against a background of authorities that have considered the meaning of “authority of a State” in various legislative contexts e.g. “… a body which is given by the State the power to direct or control the affairs of others on behalf of the State ie, for the purposes of and in the interests of the community or some section of it”: Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577; 54 ALJR 534; 30 ALR 599; (1980) 4 ALD 227.

   [24] I considered evidence of the sort that may be relevant in deciding whether information or matter has been communicated in confidence in Re Environment Centre NT Inc and Department of Environment (1994) 35 ALD 765 at 776-777. This is based on a view of the interpretation of s 33A(1)(a) that is consistent with the view taken by Wilcox J of a similarly worded provision in s 33(1)(b) in the later case of Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 at 448.

1. At the hearing, FaCSIA did rely on s 33A(1)(a) and that leads me to consider whether disclosure of the document would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State.  What is encompassed within the words “relations between the Commonwealth and a State” was a matter considered by the Full Court of the Federal Court in Arnold (on behalf of Australians for Animals) v Queensland.[25]  Wilcox J said that:

   “... the words ‘relations between the Commonwealth and a State’ refer to the total relationship between the Commonwealth and the relevant State.  As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State.  The word ‘relations’ includes all of those contacts.  It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to ‘relations’ between the two governments, even if there was some loss of co-operation between those individuals.  But a dispute may have ramifications sufficiently extensive for it to affect ‘relations’ between the governments as such.  Questions of degree arise.  They can only be considered in the light of the facts of each case.”[26]

   [25] (1987) 73 ALR 607; 13 ALD 195, Woodward, Wilcox and Burchett JJ

   [26] (1987) 73 ALR 607; 13 ALD 195 at 616; 204

1. This passage has been cited in subsequent cases but they have not qualified or distinguished its general statement of principles.  An important additional point was made by Deputy President Todd in Re Guy and Department of Transport[27] when he referred to evidence given on behalf of the State of Queensland opposing the disclosure of a telex on the basis of its belief that communications between it and the Commonwealth are not, and should not, be made public.  He said that “Whether that view is reasonable or unreasonable, desirable or undesirable, is not to the point.  It is a fact.”[28]  It is evidence that is to be taken into account.

   [27] (1987) 12 ALD 358

   [28] (1987) 12 ALD 358 at 363

1. Deputy President Todd also had regard to differences in attitude to the disclosure of information as revealed by the fact that the Commonwealth had enacted the FOI Act but the State of Queensland had not.  He referred to the decision of Davies J, President, and Dr Renouf, Senior Member, in Re State of Queensland and Australian National Parks and Wildlife Service.[29]  An appeal to the Federal Court from their decision was dismissed and is reported as Arnold (on behalf of Australians for Animals) v Queensland, to which I have referred. 

   [29] (1986) 13 ALD 158

1. In Re State of Queensland and Australian National Parks and Wildlife Service, Justice Davies and Dr Renouf had not accepted that communications between an authority of the State of Queensland and the Commonwealth had occurred in circumstances in which both parties considered them to be confidential.  Only the Queensland authority had taken that view.  Given the circumstances in which the communications had passed and the nature and subject matter of those communications, the Tribunal concluded that there was no inference that both the Commonwealth and Queensland authorities should have understood them to have passed in confidence.  That meant that s 33A(1)(b) could not be satisfied but did not mean that the Queensland authority’s view of the communications’ being confidential was irrelevant.  It became relevant in the context of whether relations between the Commonwealth and the State of Queensland would be, or could reasonably be expected to be, damaged by the Commonwealth’s disclosing that which the State considered confidential. 

1. The Tribunal referred to an earlier decision of Davies J in Re Maher and Attorney-General’s Department[30] when considering a similar point arising in the context of s 33(1)(a) in relation to Australia’s relations with other countries.  His Honour said:

   “… I accept that the mere possibility of damage is not sufficient.  However, I do accept that it is necessary to find loss or damage which can be proved in monetary terms.  The phrase ‘damage to international relations of the Commonwealth’ comprehends intangible damage to Australia’s reputation though such damage may be difficult to assess.  International relations have never been matters easy to define or quantify.  Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another.  Damage to personal relationships may cause considerable harm for a time at least.”[31]

   [30] (1985) 7 ALD 731

   [31] (1985) 7 ALD 731 at 742

1. In Re State of Queensland and Australian National Parks and Wildlife Service, Justice Davies and Dr Renouf applied this reasoning to s 33A(1)(a).  They looked beyond their finding that an authority of the State of Queensland had considered the communications had been in confidence to the broader context of the way in which the Commonwealth and the State viewed the disclosure of information, which each held in documentary form:

   “         It must be remembered that the FOI Act is a Commonwealth enactment.  The State of Queensland has no similar legislation.  Therefore, the attitude which the Government of the State of Queensland takes with respect to the release of documents is different from that taken by the Government of the Commonwealth.  It is necessary to have regard to such differences in attitude and to respect the view of the State of Queensland that communications with its authorities which, under the laws and practices of Queensland, would not be released to the public ought not readily be made available to the public under Commonwealth legislation.  Failure to respect this view could well lead to diminishment in the co-operation between the State of Queensland and its authorities with the Commonwealth and its authorities.”[32]

   [32] (1986) 13 ALD 158 at 161

1. Davies J and Dr Renouf also adopted what had been said by Davies J in Re Maher and Attorney-General’s Department in relation to the need for evidence to support the Commonwealth’s claim for exemption:

   “         I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth.  A mere allegation to that effect is not enough.  But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for a finding that the disclosure of the document could reasonably be expected to damage international relations.  Trust and confidence are intangible aspects of international relations.”[33]

Their position is consistent with that expressed on appeal from their decision in Arnold (on behalf of Australians for Animals) v Queensland. 

[33] (1985) 7 ALD 731 at 742

1. Section 33(1)(a) also requires a consideration of whether disclosure under the FOI Act “would, or could reasonably be expected to” cause damage to relations between the Commonwealth and a State.  Those words also require consideration and have received it in the context of both s 33A(1)(a) and other provisions of the FOI Act such as ss 33(1)(a), 40(1), 43(1)(b) and (c), 37 and 44. 

1. Those provisions are to be contrasted with provisions such as s 39, 42 and 46.  Each is expressed in terms of “would” alone so that exemption is not determined by reference to what could reasonably be expected to be the damage caused by disclosure; only by reference to what would be.  Despite their differences, each requires that there be evidence and a cause and effect.  In the case of “would, it must be a cause and effect that:

   “… must as a logical or necessary consequence. … Be able to, be capable of (doing); have a (specified) ability, potential, or capacity …”.[34]

Applying that to s 33A(1)(a), it means that the evidence must establish that disclosure must as a logical or necessary consequence have the ability to cause damage to relations between the Commonwealth and a State. 

[34] Shorter Oxford English Dictionary, 5th edition, 2002

1. By way of contrast:

   “… the words ‘could reasonably be expected to’ do not require the demonstration of a probability of damage. …”[35]

In Attorney-General’s Department v Cockcroft,[36] Bowen CJ and Beaumont J considered these words where they appear in s 43(1)(c)(ii) of the FOI Act.  That provision exempts from disclosure that information which concerns certain business or professional matters and which “could reasonably be expected to” prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency.  Their Honours said:

“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J).”[37]

[35] Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195 at 616; 204 per Wilcox J

[36] (1986) 64 ALR 97

[37] (1986) 64 ALR 97 at 106

1. In that case, Sheppard J made it clear that:

   “… stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[38]

   [38] (1986) 64 ALR 97 at 112

1. Cockcroft’s case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another.[39]  It said:

   “In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed.  It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.”[40]

   [39] (1992) 108 ALR 163; 36 FCR 111

   [40] (1992) 108 ALR 163; 36 FCR 111 at 176; 123

1. What matters may a decision-maker take into account in applying the test?  In McKenzie v Secretary, Department of Social Security,[41] Muirhead J decided that the Tribunal had not been in error in having regard to the form in which the information had been received.  He decided that there was no error of law in the Tribunal’s conclusion that the letter, in its original handwritten and signed form, could reasonably be expected to enable Mrs McKenzie to identify its author.  Heerey J in Bartlett v Secretary, Department of Social Security[42] did not question the Tribunal’s approach in considering whether the nature of the information itself could reasonably be expected to enable the applicant to identify the person who had denounced him.[43]  The information disclosed the category of person by whom the information had been given, contained an allegation not previously known to the applicant and contained information as to when the allegations had been made.

   [41] (1986) 65 ALR 645

   [42] (1997) 49 ALD 380

   [43] Heerey J did find that that Tribunal had made an error of law in the test it applied but did not comment adversely on the categories of information to which it had regard.

1. In some cases, the evidence may justify a conclusion that disclosure of information by an agency will lead to its being linked with already available information and so lead to the disclosure of yet other information.  This is known as the “mosaic or jigsaw” effect and was regarded as a relevant consideration by the Tribunal in Re Slater and Cox (Director-General, Australian Archives):[44]

   “… Evidence was placed before me (Ex 4 as explained in oral evidence) by way of an exercise based upon an analysis of 22 thirty-five-year-old documents. This exercise satisfied me that much can be gleaned, by application of the ‘mosaic’ technique of piecing together small and individually innocuous pieces of information, that is of present and significant relevance. The cumulative prejudice which may flow from disclosure of documents as a group has been recognised in Australia and overseas. In Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48 the Tribunal said: ‘Two additional points deserve mention. First, because large parts of the documents had already been released, proceedings before the Tribunal came, at times, close to a word-by-word battle over disclosure. Not surprisingly, adopting this approach it is tempting to conclude that parts of speech which viewed in isolation are innocuous have no basis for exemption. In circumstances such as the present this temptation must be resisted, for it would be too easy, having before one a document in which only those words which, when viewed in isolation, are exempt have been deleted, to reconstruct the entire document by process of educated guesses and thereby cause damage against which s 33(1)(a) is designed to protect.’”[45]

   [44] (1988) 15 ALD 20

   [45] (1988) 15 ALD 20 at 27

1. In Re Millis and Australian Archives,[46] Deputy President McMahon described the mosaic theory as an example of the logical process of reasoning by induction although it has also been referred to as inference or deduction:[47]

   “… What may be done in analysing the subject documents, and the particular facts recorded in those documents, is to estimate the weight of internal evidence or external connecting evidence in favour of a proposition which is likely to disclose the identity of a confidential source.  The so-called mosaic theory is nothing more than this.”[48]

   [46] (1997) 47 ALD 427

   [47] Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392 at [20]

   [48] (1997) 47 ALD 427 at 430

1. In Re Petroulias and Commissioner of Taxation,[49] I said:

   “However described, the mosaic theory is not a rule of law determining an outcome.  It is no more than a name given to the task of evaluating evidence in order to come to a decision when the evidence comprises that within the documents under consideration and other sources.  The decision that is reached is, of course, formulated by the law or is a sub-set of that decision.”[50]

It seems to me that this remains the case.

[49] [2006] AATA 333; (2006) 62 ATR 1175

[50] [2006] AATA 333; (2006) 62 ATR 1175 at 1185; [30]

Section 36: its general scope and exceptions

1. Section 36 is concerned with what are described as “internal working documents”. These are described in s 36(1), which sets out the two characteristics that must be possessed by a document before it will be regarded as exempt:

   “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; and

   (b)would be contrary to the public interest.”

1. The exemption is qualified.  The first is that s 34 does not apply to “… matter that is used or to be used for the purpose of the making decisions or recommendations referred to in s 9(1)” i.e. decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to which persons are or may be entitled or subject.  The exception is found in s 36(2).

1. A second qualification is found in s 36(6) when it provides that:

   “This section does not apply to:

   (a)reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

   (b)reports of a prescribed body or organization established within an agency; or

   (c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.”

1. Section 36(5) sets out the final qualification.  It provides that s 36 “… does not apply to a document by reason only of purely factual material contained in the document.”  This provision requires two issues to be considered.  The first is what is meant by the expression “purely factual material” and whether the document contains purely factual material? The second is to focus on whether disclosure of that purely factual material will lead to the consequences described in s 36(1). That follows from the limited exclusion given by s 36(5) to a document that contains purely factual material. I will return to that below.[51]

   [51] See [92] below

Section 36: its two main criteria

1. If a document is to be exempt under s 36, it must satisfy both ss 36(1)(a) and (b). Section 36(1)(a) requires me to ascertain what matter would be disclosed if the document were disclosed under the FOI Act. Having decided that, I must then decide whether that matter comes within the description of matter found in s 36(1)(a). If it does, regard must be had to whether it does so by reason only of purely factual material it contains in order to determine whether it is excluded from s 36 by virtue of s 36(5). The second is whether disclosure would be contrary to the public interest.

1. I considered the meaning of s 36(1)(a) at some length in Re Richardson and Commissioner of Taxation.[52] I adopt my reasoning in that case and summarise the main points here. Cases that have considered s 36(1)(a) have included Re Howard and Treasurer of the Commonwealth of Australia,[53] Re Murtagh and Commissioner of Taxation,[54] Re Waterford and Department of the Treasury (No.2),[55] Re James and Others and Australian National University[56] and Kavvadias v Commonwealth Ombudsman.[57]  In so far as those cases considered the word “deliberation”, their conclusion may be summarised in the words of Beaumont J in Harris v Australian Broadcasting Corporationand others[58]  when he said that:

   “... ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”[59]

Sheppard J’s observation in Kavvadias v Commonwealth Ombudsman is also pertinent and that is to the effect that the expression is not to be confined to policy making.[60]

[52] (2004) 81 ALD 486; [2004] AATA 367 at 490-493; [13]-[21]

[53] (1985) 7 ALD 626, Davies J

[54] (1984) 54 ALR 313; 6 ALD 112, Davies J, Sir Ernest Coates and RA Sinclair, Members

[55] (1984) 5 ALD 588, Deputy President Hall and I Prowse and CA Hughes, Members

[56] (1984) 6 ALD 687, Deputy President Hall

[57] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198, Sheppard J

[58] (1983) 50 ALR 551; 5 ALD 545

[59] (1983) 50 ALR 551; 5 ALD 545 at 560; 553 (see also Re Murtagh and Commissioner of Taxation and Re Howard and Treasurer of the Commonwealth of Australia)

[60] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211

1. Matter in the nature of a deliberation is not the only matter within the scope of s 36(1)(a). Other matters within its scope are matters in the nature of “opinion, advice or recommendation … [or] consultation”.  In the case of Smith and Aboriginal and Torres Strait Islander Commission,[61] I set out the ordinary meanings of the other words used in s 36(1)(a) i.e. “opinion, advice or recommendation … [and] consultation:”

   “Taking first the word ‘opinion’, it connotes ‘… a view held about a particular subject or point; a judgement formed; a belief …’ (The New Shorter Oxford English Dictionary, 1993) or a ‘1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view, attitude, or estimation: public opinion 3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs. 4. a formal or professional judgment expressed, especially in law: counsel’s opinion. …’ (The Macquarie Dictionary, 3^rd edition, 1997).  The word ‘advice’ means ‘… The way in which a matter is looked at; opinion, judgement … consideration, consultation, reckoning … an opinion given or offered as to action; counsel … The result of consultation; determination, plan …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3^rd edition, 1997) .   The meanings of ‘recommendation’ include ‘… The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3^rd edition, 1997).  To a certain extent, the meanings of the words ‘opinion’, ‘advice’ or ‘recommendation’ overlap.  Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.

   The ordinary meanings of ‘consultation’ include ‘… A meeting in which parties consult together, or one person consults another, … ‘ (The New Shorter Oxford English Dictionary, 1993) and ‘… the act of consulting; conference. … a meeting for deliberation … an application for advice to one engaged in a profession …’ (The Macquarie Dictionary, 3^rd edition, 1997).  Again, there is a notion of consideration inherent in the meaning of ‘consultation’.  That consideration may or may not lead to the formation of an opinion, advice or recommendation.

   Similarly, the word ‘deliberation’ encompasses the notion of consideration.  That consideration may involve consultation or discussion amongst more than one persons.   Equally, a person who considers a matter on his or her own can be said to have deliberated upon it.  Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.”[62]

   [61] [2000] AATA 512

   [62] [2000] AATA 512 at [54]-[56]

1. On its face, s 36(1)(a) appears to be broadly drafted to gather a broad range of matter within its scope and, with one exception, there is no reason in the context either of the remainder of the section or of the FOI Act to limit the ordinary meanings given to the words “opinion, advice or recommendation … consultation or deliberation”.  In Booker and Department of Social Security,[63] I gave further consideration to the word “consultation” and, after reviewing various authorities, added that “…in order for there to be a consultation, there must be something of a two way exchange between at least two parties.  …”.[64]

   [63] AAT 6189, 13 September, 1990

   [64] AAT 6189, 13 September, 1990 at [25]

1. That brings me to the qualification expressly stated in s 36(1)(a) to limit the meaning that must be given to the words “opinion, advice or recommendation” and also to the words “consultation or deliberation”.  That qualification is that it must have been “obtained, prepared or recorded” (if an opinion, advice or recommendation) or “have taken place” (if a consultation or deliberation) “in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency …”. 

1. The meaning of the expression “taken place” seems clear enough but what of the words “obtained, prepared or recorded”?  The word “obtain” was considered by Newman J in Kelly v JRA Ltd[65] in the context of s 234(1)(b) of the Customs Act 1901.  That section provided, in part, that “A person shall not …obtain any … refund … which is not payable”.  His Honour said:

   “… The word ‘obtain’ is defined in the Shorter Oxford English Dictionary as being ‘to procure or gain, as a result of purpose and effort … to possess’.  The Macquarie Dictionary showing consistency with its English counterpart, defines ‘obtain’ as ‘to come into possession of; get or acquire; procure as by effort or request.’  In my view the action required of a person to come into possession of a refund of duty from the Collector of Customs requires, on that person’s part, a conscious effort to receive a refund evidenced by the fact that to get such refund, the person seeking it must actively do something to get it.”[66]

   [65] (1990) 92 ALR 651

   [66] (1990) 92 ALR 651 at 657-658

1. It seems to me that a similar meaning should be given to the word “obtain” as it is used in s 36(1)(a). The opinion, advice or recommendation must have been acquired or procured in the course of, or for the purposes of, its deliberative processes involved in its functions. It is not enough that the opinion, advice or recommendation was received by an agency when it was not sought by that agency either explicitly or implicitly.

1. The remaining words to consider are “prepared” and “recorded”.  Their meanings are clear and, given their context, it is equally clear that the opinion, advice or recommendation must have been “prepared or recorded” in, or for the purposes of collective discussions i.e. the deliberative processes. At one time, it would generally have been expected that the opinion, advice or recommendation would be prepared or recorded within the agency. It could always be envisaged, though, and it has now become more common for an agency to ask a person outside it to prepare or record the opinion, advice or recommendation. Provided it is prepared or recorded with the imprimatur of the agency and that the other criteria in s 36(1)(a) have been met, the opinion, advice or recommendation would come within the paragraph. It is not enough, though, that it has been prepared or recorded and then proffered to the agency. To come within the paragraph, it must have been prepared or recorded in the course of, or for the purposes of, the agency’s deliberative processes and so the opinion, advice or recommendation must have been prepared or recorded as a result of the agency’s seeking it rather than its simply being the recipient of it.

1. Perhaps their meanings are self explicit but I should also spend a moment on the meaning of the words “in the course of” and “for the purposes of” the deliberative processes “involved in” the functions of an agency, Minister or Government of the Commonwealth as they appear in s 36(1)(a). In order to claim an exemption under s 36, it is not enough that the agency or Minister has a document containing an opinion, advice or recommendation or consultation or deliberation referring to matters for which the agency or Minister has responsibility. It must be matter of that sort that has been obtained, prepared or recorded or, in the case of a consultation, has taken place in the course of, or for the purposes of the deliberative processes involved in their functions.

1. In the context of s 6 of the Contracts Review Act 1980 (NSW), Young J considered the meaning of the expression of “for the purpose of a trade, business or profession’.  His Honour did so in Ellison v Vukicevic[67] when he adopted what Lee J had said in Collins v Parker:[68]

   “         The expression ‘for the purpose of’ has the meaning that the contract under consideration is entered into as an ordinary incident of the carrying on of a particular trade, business or profession then being carried on or proposed to be carried on.”[69]

It seems to me that this interpretation is equally apt in s 36(1)(a) of the FOI Act. If matter has been obtained “for the purposes of” deliberative processes, it must have been obtained as an ordinary incident of them.

[67] (1986) 7 NSWLR 104 at 111

[68] Unreported, SC (NSW), 11 May 1984 at 18

[69] Both cases were cited with approval by Toohey and Gaudron JJ in Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440 at 400; 446

1. The expression “in the course of” raises similar issues of connectivity between the particular matter and the deliberative processes.  Those issues are of the same sort as those that arise when considering whether an injury has occurred “in the course of employment”.  Deane J considered them in Commonwealth of Australia v Lyon[70] when said:

   “         Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work … The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains … The scope of what is within it depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which ‘cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of employment’ (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see, generally, per Stephen J Bill Williams Pty Ltd v Williams [1972-73] ALR 303; 126 CLR at 158-9.”[71]

   [70] (1979) 24 ALR 300

   [71] (1979) 24 ALR 300 at 303-304

1. There are, of course, later authorities concerned with what is meant by an injury “in the course of employment”.  One of these is Hatzimanolis v ANI Corporation Ltd[72] in which Mason CJ, Deane, Dawson, Toohey and McHugh JJ said:

   “… In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen …^[[73]].”[74]

That, too, is a principle that is equally applicable in considering whether a matter of the sort described in s 36(1)(a) has been obtained, prepared or recorded or a consultation or deliberation has taken place in the course of the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth. Regard must be had to the general nature, terms and circumstances of those deliberative functions.

[72] (1992) 173 CLR 473; 106 ALR 611

[73] Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537

[74] (1992) 173 CLR 473; 106 ALR 611 at 484; 618

1. It follows that there must be a connection of the sort described between the opinion, advice or recommendation or of the consultation or deliberation and the deliberative processes of an agency. That, however, is not the only connection that must be made for the purposes of s 36(1)(a). There must be a connection of the sort described by the expression “involved in” between the deliberative processes and the functions of an agency, a Minister or the Government of the Commonwealth.  What is the nature of that connection?  The word “involve” means in this context:

   “… to require as a necessary part …”[75]

Therefore, the deliberative processes must be those that are required as a necessary part of the functions of the agency, Minister or the Government of the Commonwealth.

[75] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

1. The expression “deliberative processes” has been considered in Re James and Others and Australian National University in which Deputy President Hall repeated the view he had expressed in Re Waterford and Department of the Treasury (No.2) that the “deliberative processes” of an agency are its “thinking processes”.[76]  Sheppard J stated in Kavvadias v Commonwealth Ombudsman that the expression is not to be confined to policy making.[77]  Several authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia.[78]  He referred to Re Murtagh and Commissioner of Taxation, with which he agreed and in which the Tribunal had said:

   “The term ‘deliberative processes’ would seem to have a wide ambit.  The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that: ‘... “deliberation” suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.’”[79]

   [76] (1984) 6 ALD 687 at 693

   [77] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211

   [78] (1985) 7 ALD 626

   [79] (1984) 6 ALD 112; 84 ALR 313 at 118-119; 319 and see also Re Howard (1985) 7 ALD 626 at 630

1. Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) where it said:

   “As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency.  ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s36(1)(a) come into play.”[80]

   [80] (1984) 5 ALD 588 at 606 and see also Re Howard (1985) 7 ALD 626 at 630

1. This passage was considered by Deputy President McDonald in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs.[81]  He then said:

   “         In reaching a decision to characterise a document as being part of a deliberative process the tribunal may seek guidance, but not be bound, by the wording used in the document itself.  The determination should be based on a fair reading of the whole of the document and not a disjunctive reading of selected passages.  Additionally, the characterisation should be determined not only by having regard to the wording used in the document, but also by reference to the surrounding circumstances and the matters deposed to in any evidence supporting the maintenance of the exemption. …”[82]

   [81] (1996) 43 ALD 139

   [82] (1996) 43 ALD 139 at 148

1. The words “substantial adverse effect” have been considered in a number of cases.  Beginning with the word “substantial”, its ordinary meanings include that of “… considerable in amount, extent, importance, etc …”.[103]  In considering the meaning of the expression “substantial loss or damage”, Bowen CJ said in Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors[104]:

   “The word ‘substantial’ would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling [1984] 1 ALL Er 1; [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.”[105]

Deane J said:

“The word ‘substantial’ is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision. In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size … As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word ‘substantial’ in s45D(1).”[106]

[103] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[104] (1979) 27 ALR 367; 42 FLR 331

[105] (1979) 27 ALR 367 at 374-375

[106] (1979) 27 ALR 367 at 382

1. In Harris v Australian Broadcasting Corporation and Others,[107] Beaumont J considered whether reports of an independent review of the Legal Department of the respondent were exempt within the meaning of paragraph 40(b) of the Act.  His Honour found that it was possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say:

   “However, I am not persuaded that any such effect, even if adverse, could fairly be described as ‘substantial’ in its impact. In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out.”[108]

   [107] (1983) 50 ALR 551; 5 ALD 545

   [108] (1983) 50 ALR 551; 5 ALD 545 at 564; 557. Beaumont J considered s 40 as it existed before its repeal and re-enactment in 1983. The particular words which he considered were not varied and this passage of his judgment remains relevant.

1. Muirhead J has also considered the expression “substantial adverse effect” as it appears in s 40 in the case of Marco Ascic v Australian Federal Police.[109]  He made specific reference to Beaumont J’s use of the word “gravity” which caused him some difficulty.  In Muirhead J’s view:

   “‘Substantial’ is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s. 45D of the Trade Practices Act 1974 which refers to ‘substantial loss or damage’ his Honour’s words that ‘substantial loss or damage … includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal’ appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations.”[110]

   [109] (1986) 11 ALN N184

   [110] (1986) 11 ALN N184 at N185

1. In the same year as Muirhead J published his judgment in Ascic, the Tribunal reached the conclusion that a “substantial adverse effect” “connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person”.[111]

   [111] Re Thies and Department of Aviation (1986) 9 ALD 454 at 463 (Deputy President Thompson, Senior Member Hallowes and Mr Trinick, Members)

1. Deputy President McMahon gave a fair summary of the effect of these authorities when he considered the same expression, “a substantial adverse effect”, when used in the context of s 39 of the FOI Act.  He did so in Re Connolly and Department of Finance[112] when he said:

   “… There must be a degree of gravity before this exemption can be made out (Harris v Australian Broadcasting Corp …); the effect must be ‘serious’ or ‘significant’: Re James … Normally a value judgment has to be made as to whether an adverse effect is or is not substantial when considering exemptions claimed under other sections. …”[113]

   [112] (1994) 34 ALD 655

   [113] (1994) 34 ALD 655 at 662

1. If a claim under s 40(1)(d) is to succeed, the substantial adverse effect must be on the “proper and efficient conduct of the operations of an agency”.  In Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another,[114] Davies, Wilcox and Einfeld JJ rejected a submission that the “conduct of an agency” could be limited to matters related to the internal administration of an agency such as a report by an outside agency or a consultant on its operations.  They adopted the view of Deputy President Hall in Re James and Australian National University[115] that the expression extends “to the way in which an agency discharges or performs any of its functions”.[116]  The issue for the Tribunal in Re James and Australian National University was considered in the context of a request for documents recording lecturers’ comments in student record sheets together with the names of examiners of honours theses and their tentative grades.  Deputy President Hall said that:

   “         The question, in the present case, therefore, is whether the expression 'the conduct of the operations of an agency', when applied to the University, extends not only to the way in which it carries out its 'administrative' operations, but also its 'academic' operations. …

   As a matter of ordinary English I think that the expression ‘the conduct of the operations of an agency’ is capable of extending to the way in which an agency discharges or performs any of its functions. So construed, I agree with Mr Toper that it is capable of extending to the discharge by the University of its academic functions in relation to the awarding and conferring of degrees and diplomas (see s. 6 of the Australian National University Act 1946 (Cth)).”[117]

   [114] (1992) 108 ALR 163; 16 AAR 28

   [115] (1984) 2 AAR 327; 6 ALD 687

   [116] (1984) 2 AAR 327; 6 ALD 687 at 340; 699 cited with approval at (1992) 108 ALR 163; 16 AAR 28 at 168; 32

   [117] (1984) 2 AAR 327; 6 ALD 687 at 340-341; 699

Onus of proof

1. The onus of proof imposed on an agency by s 61(1) of the FOI Act is not irrelevant in considering a claim for exemption. That is an onus imposed on agency to establish that a decision it has given in respect of a request was justified.[118]  Taking a decision that a document is an exempt document, the practical consequence of the onus is that, if the agency is to succeed in those proceedings, it must ensure that the Tribunal has sufficient evidence to establish its claim on the balance of probabilities.  Generally, an agency will want to produce that evidence itself to the Tribunal.  There is, however, nothing to prevent it from relying on evidence produced during the proceedings by the applicant for review or any party joined to the proceeding.  When it makes its initial decision, the agency’s position is no different.  Rather than satisfying the Tribunal, the decision-maker must satisfy him or herself on the balance of probabilities that the document is an exempt document.  That will mean that the decision-maker must look to the evidence before making a decision.  If the decision is not supported by the evidence, the decision should not be made.  A decision to refuse access on the basis that a document is an exempt document without a proper evidentiary basis, for example, would be a decision that would seek to diminish the right that Parliament has given to every person by means of s 11(1) i.e. the right, subject to the other provisions of the FOI Act to obtain access in accordance with this Act to a document of an agency or an official document of a Minister other than an exempt document. 

   [118] s 61(1)

1. I have spent a moment on a proper evidentiary basis because it underpins the comments made by Beaumont J in Re Williams and Registrar of the Federal Court of Australia[119] of the difficulties faced by an agency when there is no proper evidentiary basis in the first place.  His Honour was considering a claim that assessments of the work capacity of the four most highly-rated applicants for a position in the Registry of the Federal Court and a document showing the order of merit of five of the applicants were exempt under ss 41(1) and 40(1)(c).  Section 40(1)(c) provides that a document is an exempt document if its disclosure under the FOI Act would, or could reasonably be expected to have a “substantial adverse effect on the management or assessment of personnel” by an agency.  His Honour said:

   “         As has been mentioned, it is possible that s 40(1)(c) of the Act could justify the refusal of access in the present circumstances.  However, in my opinion, no case has been made out here for the application of that provision.  No attempt was made here to demonstrate, by evidence or otherwise, that the ‘substantial’ adverse effect contemplated by s 40(1)(c) would or could reasonably be expected to occur (see Harris v Australian Broadcasting Corp (1983) 50 ALR 551 at 545; 5 ALD 545; Public Service Board v Scrivanich (1985) 8 ALD 44; cf Re Witheford v Department of Foreign Affairs (1983) 5 ALD 534 at 544). The difficulties in now establishing such a case are formidable (Science Research Council v Masse [1980] AC 1029 at 1065, 1070-1, 1080-1, 1085; cf Sankey v Whitlam (1978) 142 CLR 1 at 40, 62-3, 97). It follows, in my view, that the documents now in question are also not protected by this provision.”[120]

   [119] (1985) 8 ALD 219, Beaumont J, Senior Member McMahon (as he then was) and Dr Renouf, Member

   [120] (1985) 8 ALD 219 at 222

1. In Sankey v Whitlam, to which Beaumont J referred in this passage, Stephen J spoke of the difficulties of relying on evidence that was directed to a class of document rather than to the particular document under consideration.  That case concerned, in part, a claim that certain documents were privileged from disclosure in criminal proceedings on the basis that their disclosure would be prejudicial to the public interest.  The evidence in support of the claim for privilege was in the form of affidavit evidence sworn by members of the then ministry and senior public servants.  It was evidence directed to the class to which the particular documents could be characterised rather than to their contents.  It was not suggested that disclosure of their contents would itself result in detriment to the public interest.  The:

   “… detriment perceived is, rather, that generalized form of apprehended harm which, it is said, will flow from a realization by Cabinet Ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge.

   Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden.  As Lord Reid said in Rogers v Home Secretary^[[121]] the speeches in Conway v Rimmer^[[122]] have made it clear ‘that there is a heavy burden of proof’ on those who make class claims. …”.[123]

   [121] [1973] AC 388 at 400

   [122] [1968] AC 910

   [123] (1978) 142 CLR 1; 21 ALR 505 at 62; 545 per Stephen J

CONSIDERATION

1. I will begin with a description of the documents, which have been identified as meeting Mr McKinnon’s request for access.  There are two documents.  One is described as a Draft Report and dated May 2006.  It is described in its own pages as a draft that is incomplete.  It is apparent from reading the draft that it is incomplete.  Notations at the beginning of certain sections indicate that together with the reasons for its being so and what is required for completion.  The second document does not describe itself as a draft in any way.  It does not contain the passages or omissions that appear in the Draft Report and that suggest that it may be a draft.  It does not read or appear to be a draft and gives every appearance of being regarded and presented by the ECU as a final report.

1. Both documents refer to the research brief or the terms of the consultancy given to the ECU and the methodology that was adopted.  Both reports establish the context in which they addressed the matters that the ECU understood were required by the terms of the consultancy.

1. Both documents report on the data and information that the ECU gathered in its consultations with members of the Indigenous community regarding child care needs and the child care preferred by Indigenous families and their children across Australia.  The information that is provided by members of the Indigenous community and their families and from service providers during those consultations is reported without any material to identify the persons or service providers other than in a broad geographic sense of metropolitan, regional or remote.  The documents also address matters of the sort listed in the specific headings listed Schedule 1 to the tender.  In doing so, the ECU listed some factual material.  Some, for example, related to the way in which it had conducted its consultations.  Others provided information sought by FaCSIA regarding matters such as the services currently offered for child care.

1. Both documents contain what I will describe generally as recommendations regarding an Indigenous child care plan.  Without wanting to reveal the contents of the documents, I observe that the recommendations remain at the level of general principles.  They do not move beyond the general to a level of detail to address issues such as the nature, size and location of particular child care services that should be offered to members of the Indigenous community.

Section 36

1. The tender was let to the ECU by FaCSIA in the course of gathering material for the purposes of developing an Indigenous child care plan.  The Administrative Arrangements Order issued on 26 November 2001 and in force in August 2003 when the tender was let specified “Services for… families with children” as among the matters dealt with by FaCSIA.  Therefore, the development of such a plan was clearly within the functions of FaCSIA at the time it let the tender and subsequently until that function was transferred to DEEWR.

1. I have already referred to the two documents containing “material” and have given a general description of it.  Some of it comes within the description of “consultation”. It records what has passed between those preparing the documents on behalf of the ECU when they have engaged in the various consultations envisaged in the tender documents. Officers of FaCSIA have not necessarily been present when those consultations have occurred but there is no requirement in s 36(1)(a) that the consultations be between officers of the relevant agency and others or between officers of that agency. If there is matter in the nature of or relating to a consultation, all that is required is that it is a consultation that has taken place in the course of, or for the purposes of, the deliberative processes of an agency or of the Government of the Commonwealth.

1. Some of the material in the documents that comes within the description of consultation could also be described as “opinion” in that it records the opinions of certain persons or groups of persons who have been consulted.  Yet other parts of that material can be described as containing material relating to consultations can also be described as containing purely factual material.  It is factual material that has been gained as part of the consultative process.

1. Quite apart from the material that would disclose consultations, advice and purely factual matter gained during the project undertaken by the ECU, the two documents also contain matter that is in the nature of “advice or recommendation”.  That they do so was contemplated by the terms of the tender.  On their face, some items could be interpreted as requiring recommendations.  Others could be interpreted as implicitly doing so.

1. Whether it be described as matter in the nature of opinion, advice or recommendation or as consultation, I am satisfied that it has been either obtained, prepared or recorded or, if a consultation, that it has taken place, in the course of or for the purposes of FaCSIA’s deliberative processes.  On the basis of Ms Shugg’s evidence, I am satisfied that FaCSIA was, both when it let the tender to the ECU and when it received the two documents, engaged in reviewing existing policy regarding Indigenous child care services and developing a new policy.  The consultations took place, the advice and recommendations were given and the factual material recorded for the purposes of developing that policy.  It makes no difference that FaCSIA did not accept that the report submitted by the ECU as the final report was in fact the final report it sought under the contract.  It was acquired or procured, and so obtained, in the course of, or for the purposes of, its deliberative processes involved in its functions.  It was also prepared, albeit by the ECU, for the purposes of the deliberative processes of FaCSIA.

1. As is clear from the evidence of Ms Shugg, the documents it received from the ECU are but one part of the work undertaken by FaCSIA in developing the Indigenous child care policy.  That they are but one part does not detract from the documents’ being prepared for the purposes of that development.  That development necessarily involved FaCSIA in “deliberative processes”.  Of its very nature, policy development in any discipline necessarily requires a proper analysis of what already exists.  That factual analysis provides a base from which to identify matters such as needs, satisfactory and less satisfactory ways of addressing those needs, standards and outcomes that should be met and relevant constraints such as budgetary or human resource limitations.  One agency may not have responsibility for each aspect and it is usual for there to be consultations between agencies if only on budgetary matters.  On a matter as complex as Indigenous child care, it is easy to imagine that the consultations would need to extend across a number of Commonwealth agencies.  I am satisfied on the basis of Ms Shugg’s evidence that they extend beyond Commonwealth agencies to those of the States.

1. It follows that I am satisfied that both documents come within the terms of s 36(1)(a) of the FOI Act. That finding requires me to consider whether their release would be contrary to the public interest as set out in s 36(1)(b). As Gleeson CJ and Kirby J said in McKinnon, a consideration of that question involves a judgment as to where the public interest lies.  It is made in the context of the right to access to documents that is given by the FOI Act but is limited by the need to protect essential public interests.

1. Ms Shugg’s evidence focused on four main areas in which disclosure of the two documents would have an adverse effect.  One was on the relations between the Commonwealth and the States.  The second was on the trust that FaCSIA needs to build between it and groups of people who are socially disadvantaged.  The third was on the way in which the documents were viewed and used.  They could be used to build up hopes and expectations that could not be met by government.  The fourth was that the documents would be regarded as reflecting the view of the government.

1. I will begin with the fourth area of concern.  It seems to me that a right minded person reading the whole of the documents in the context of the tender document would not gain the impression that they represent government policy.  Even without access to the tender document, I would reach the same conclusion.  Certainly, they contain recommendations but they are recommendations to FaCSIA by the ECU just as the consultations are reported on and the factual material is given to FaCSIA by the ECU.  The documents cannot be read reasonably as positions adopted by FaCSIA or as information with which FaCSIA necessarily agrees.  One way in which a person may think that a report of the sort prepared by the ECU represents the position of an agency or of government may come about if that person were to think that the agency or government had a guiding, or even a controlling, hand in its preparation.  That is to say, that person thought that the agency or government had a guiding or controlling hand extending far beyond a hand that simply requested it and, by means of the tender documents, circumscribed all or some of the methodology that was adopted and the scope of the final product.  That is not suggested in the evidence that was given in this case.  Certainly, ECU was commissioned to carry out consultations and to write a draft and a final report but there is nothing in the terms of its engagement that suggest it was required to reach a particular outcome.  The fact that the FaCSIA purchased the services of the ECU does not entitle it, FaCSIA, to go beyond the terms of their contract.  The only evidence that I have of those terms is in the tender documents and they do not suggest that the ECU was required to reach a particular outcome.

1. The third aspect raises the way in which the documents will be viewed if they are released.  They will raise the hopes and expectations of a community.  Speaking in general terms and without reference to what may, or may not, be in the documents, it is readily understandable that people will be heartened by any recommendations that they see as in their interests or in the interests of those they care about or of the wider community in which they live.  It is heartening to know that someone is “on side” as it were or at least has not thrown up new obstacles in the way of those interests.  To think, however, that people in the Australian community will regard a report that has been commissioned by an agency as representing a final outcome in some way is, in my view, to underestimate them.  They are realistic and stoical in their ability to separate a report from an independent body such as a university and its recommendations from the government’s agencies and its recommendations to government and from the government and its decisions.  They have to do it regularly for there are many examples of such reports. 

1. There are a number of examples of reports that have been given and made publicly available before government policy has been developed or finally decided upon.  There have long been reports prepared by law reform bodies whose reports have been regularly tabled.  The Australian Law Reform Commission provides an example.  It prepares reports as a result of references by the Attorney-General.  Those references may be made to it at its own suggestion or at the suggestion of the Attorney-General.  Its reports, including its interim reports, must be tabled in the Parliament.[124]  Even the Council of Australian Governments (COAG) has made its interim reports available at times.  One example is the draft COAG Report on the Control of Chemicals of Security Concern which has been made available to give stakeholders, including members of the public, an opportunity to provide feedback on the report and its recommendations.  A recent example is to be found in the interim report commissioned by the State and Territory governments and the current Commonwealth government when it was in opposition regarding climate change.  The interim report prepared by Professor Ross Garnaut has been released and is received as “one of the many sources of advice”[125] to the Commonwealth government about what it should do on the subject of climate change. 

   [124] See Australian Law Reform Act 1996, Part 3

   [125] ABC News, 21 February 2008: type="1">

2. No evidence was given at the hearing about the reports to which I have just referred.  I make no findings about them other than to note that the availability of such reports is a matter of general knowledge.  That knowledge is one reason why I cannot give any great weight to the evidence that it is easy to draw the conclusion that the ECU’s documents represent the government’s view when a report has been purchased from the ECU.  The ALRC is a publicly funded body and that conclusion is not easy to draw in relation to it.  Other reports are obtained from consultants for a fee and they are not regarded as representing the view of government or of a particular agency.

1. Mr Niall submitted that the Commonwealth should be able to negotiate with interested groups without its being told that its independent experts had held a contrary view.  The Commonwealth itself has not formed a view.  It is inappropriate for there to be documents in the public domain that suggest it called for data.  Policy development should occur in an orderly way.  There should be communications with all contributing to the outcome.  The orderly development of policy would not be possible if information were to be released all along the way.

1. I do not disagree with Mr Niall’s submission that policy development should occur in an orderly way but I do disagree with a suggestion that disclosure of material of the sort found in the ECU’s documents will compromise the process.  I considered a related matter in Re McKinnon and Secretary, Department of Prime Minister and Cabinet in the context of deciding whether there existed reasonable grounds for the claim that the disclosure of particular documents would be contrary to the public interest within the meaning of s 58(5) of the FOI Act:

   “154.              In the Australian system of government, a government is clearly entitled to promote and defend its actions in developing policy and the legislation it has promoted on the basis of what it has done.  As part of its promotion and defence, it will necessarily have to reject other options that it could have taken and that are put to it by people such as commentators, journalists or members of the public.  That debate should be robust but it should be focused on what is.  It should not be diverted to questions related to matters other than what is.  Those questions could include what might have been, why one option was chosen over another and whether the views of one interest group or another or those of Ministerial advisers or those of APS officers were preferred.  Those sorts of questions might be legitimate questions in another context.  So too might the nature and quality of the advice that was tendered to government and the range of options with which it was tendered.  Questions of this sort may, for example, be relevant in an historical analysis of the course of workplace relations law or in an analysis of opportunities lost and taken.  If it were a case of balancing public interests, they might be relevant questions in the context of a claim for exemption under s 36 but in the absence of a conclusive certificate.  So too would factors such as the time that has elapsed between the advice and any disclosure of it. 

   155.                This, however, is not an occasion on which to balance competing public interests, if there be more than one.  It is an occasion to consider whether there is a reasonable ground for the claim that has been made.  That claim must be considered in the circumstances that currently prevail.  Those circumstances are that matters relating to workplace relations law are very topical and the subject of much debate.  It is not, however, in the interests of the efficient use of resources that a government should be required to disclose options and opinions to which it had, or might have had, regard in formulating its final position.  The public’s scrutiny of a government policy or of a particular piece of legislation is not advanced by the government’s explanation of why it did or did not adopt a particular option.  If it needs to support its position by reference to factual material or by reference to reports of the sort referred to in s 36(6), that is a different matter.  It should be prepared to disclose all of that type of material regardless of whether it supports its position or not.  Indeed, that sort of material is not protected under s 36 for it is expressly excluded by either ss 36(5) or (6). 

   156.                In light of these matters, I have concluded that there is a reasonable ground for the claim that it is not in the public interest to divert public attention from what is to the range of options that were presented to government by one group, being the WRRSC, in documents 1 to 13D.  The government is currently accountable in the context of the workplace relations for its acts and omissions regarding the workplace relations law that has been enacted and not for amendments to that law that it may enact in the future.  Therefore, I have concluded in the circumstances that currently prevail that there is a reasonable ground for the claim whether it is formulated in the DEWR recommendations ground, the accountability ground or the discounted options ground.[126]

   [126] [2007] AATA 1969 at [154]-[156]

1. I am not concerned with a conclusive certificate and so am able to undertake the balancing exercise in this case that I could not undertake in Re McKinnon and Secretary, Department of Prime Minister and Cabinet.  Just as I said in that case, a government is clearly entitled to promote and defend its actions in developing policy on the basis of what it has done or proposes to do.  Unless it chooses to do so, it does not have to explain why it has not chosen other courses.  Whether it does so is a matter to be decided on the basis of its own political judgment.  When it comes to a situation in which any interest of government in maintaining secrecy can be weighed with other interests, it is necessary to have regard to the other interests in disclosure.

1. The documents prepared by the ECU contain material that has a number of features as I have already described.  It may be that the material will not find universal favour or it may be that it will.  Whether it does or not is not relevant.  They are documents that provide information relevant to an informed debate regarding Indigenous child care and advice and recommendations that can be used to stimulate debate.  Policy development can benefit from the stimulation that is provided by the disclosure of such material.  That is not to say that it will be the only material which is relevant.  That is not to say that it will necessarily be accepted or rejected but it is to say that it will make a contribution to an informed debate on a subject of major importance not only to the Indigenous members of the Australian community but to all members of the Australian community.

1. Trust is the second matter that Ms Shugg raised.  It is said that disclosure of the documents will threaten the trust that has been built up with Indigenous communities.  That could be the case in some instances but it is difficult to see how that can be when I have regard to the material in the documents.  It appears to be sensitively written and is written in language to preserve the anonymity of the source of any information or opinion unless that came from a source such as a Commonwealth or State government or from published material.  The privacy of individual persons and their families has been preserved. 

1. I note Ms Shugg’s evidence that SNAICC considers that the documents do not always reflect the consultations accurately and that they do not reflect its views.  That may be so or it may not and is not a matter on which I can or wish to make any findings.  If there are inaccuracies, it might well be thought that they should be drawn into the light of public scrutiny.  That would seem to be more in the public interest than to leave the documents available only to FaCSIA or those to whom it chooses to reveal them.  I accept Ms Shugg’s evidence that FaCSIA is drawing upon the documents to a certain extent.  Without the possibility of public scrutiny, those who were consulted are not in a position to point to any inaccuracies.  FaCSIA may be drawing upon the documents for information that does not accurately reflect the information, views and opinions obtained from those consulted.  That would not accord with sound public policy.

1. Ms Shugg’s first area of concern related to potential damage to relations between the Commonwealth and the States.  In his submissions, Mr Niall’s position was more to the effect that the Commonwealth will be seen as having negated its own consultant’s report.  Disclosure will not damage the Commonwealth’s relations with the States but will weaken its own position. 

1. Apart from Ms Shugg’s evidence, I do not have any evidence that disclosure will have either effect.  The fact that the Commonwealth has obtained a consultant’s report does not mean that it is wedded to the consultant’s views or even that it must flirt with them.  A private citizen may engage an architect and may treat the plan that is drawn up in the same way.  Both the Commonwealth and the private citizen have parted with good money but that does not mean that they have to adopt what they have paid for in its entirety, partly or at all.  The States play in the same world as the Commonwealth.  They will all have engaged consultants in the past and will all have regarded the product with which they have been presented in the same way.  On the evidence that I have, I do not accept that the Commonwealth’s position will be in any way compromised in its negotiations with the States.

1. Taking all of these matters into account, I have decided that the development of Indigenous child care policy is an issue in which the public interest in having an informed debate to get the best result for such an important matter.  That interest outweighs any need for government to develop its policies outside the range of public view.  With one qualification, disclosure would not be contrary to the public interest.  That one qualification relates to the earlier of the two documents.  It is clearly an incomplete draft of the later document.  Although I am reluctant to subscribe to a confusion argument, I think that in this case, it would be, on balance, contrary to the public interest to give access to an incomplete draft of a document obtained from a consultant when what appears to be its final version is available.  For that reason, I find that disclosure of the document dated May 2006 would be contrary to the public interest but that disclosure of the later document would not.  Therefore, the document dated May 2006 is exempt from disclosure under s 36 of the FOI Act but the later document is not.

Section 33A

1. It is apparent from what I have just said that I am not satisfied that disclosure of either document would, or could reasonably be expected to, cause damage to relations between the Commonwealth and any of the States.

Section 40(1)(c)

1. A claim under s 40(1)(c) depends on disclosure’s having a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.  I am not satisfied on the evidence that disclosure would or could reasonably be expected to have this effect.

1. I have also decided that neither document is exempt from disclosure under the FOI Act on the basis of s 40(1)(d).  It may be that FaCSIA would prefer that the documents not be disclosed but I am not satisfied that the evidence has demonstrated that any effect on its development of policy in relation to Indigenous child care or otherwise would be a substantial adverse effect on the proper and efficient conduct of FaCSIA’s operations or that such an effect could reasonably be expected to occur.

1. For the reasons that I have given, I have decided to:

   1.set aside the decision of the respondent dated 26 October 2006;

   2.substitute a decision that:

   (1)the document that is undated and that is not described as a draft report is not exempt from disclosure under the Freedom of Information Act 1982; and

   (2)the document that is dated May 2006 and is described as a Draft Report is exempt from disclosure under
   s 36(1) of the Freedom of Information Act 1982.

   I certify that the one hundred and forty two preceding paragraphs are a true copy of the reasons for the decision herein of
   Deputy President S A Forgie,

Signed:           .......................................................................
  Jayne Haydon   Associate

Date of Hearing  12 February 2007

Date of Decision  27 February 2008

Solicitor for the Applicant            unrepresented

Counsel for the Respondent        R. Niall