Michael McKinnon v Department of Finance and Deregulation

[2011] AATA 192

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 192

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4494

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL McKINNON

Applicant

And DEPARTMENT OF FINANCE AND DEREGULATION

Respondent

NOTICE TO THE RESPONDENT

Tribunal Deputy President P E Hack SC

Date18 March 2011

PlaceBrisbane

Decision

The Tribunal being of the opinion that documents specified in the schedule hereto may be relevant to the review of the decision in these proceedings TAKE NOTICE that you are required to lodge in the Tribunal within seven days of the date hereof three copies of each of the documents that are in your possession or under your control.
SCHEDULE

1. Any briefing document given to the consultants whose reports are the subject matter of these proceedings for the purpose of informing the consultant on the scope or purpose of the report.

2. Any record of any communication with any of the consultants about the scope or purpose of any report.

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Deputy President

PRACTICE & PROCEDURE – application for access to documents under FOI – applicant seeks further documents under s 37 (2) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether further documents may be relevant to the review – documents evidencing purpose may be relevant - application allowed in part

Administrative Appeals Tribunal Act 1975 (Cth) s 37(2)

Freedom of Information Act 1982 (Cth) ss 34, 36

Re Vasta and Civil Aviation Safety Authority [2008] AATA 1120; (2008) 110 ALD 401

Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 42 AAR 394; (2005) 88 ALD 403

REASONS FOR DECISION

18 March 2011 Deputy President P E Hack SC    

1. The applicant, Mr Michael McKinnon, has sought access pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act) to three documents, all reports prepared by consultants engaged by the respondent, the Department of Finance and Deregulation. The Department contends in these proceedings that the documents are exempt documents. The matter is set down for hearing in the near future.

2. I am presently concerned with an application by Mr McKinnon by which he seeks the giving of a notice under s 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requiring the Department to lodge documents in the Tribunal beyond those which have already been lodged in compliance with s 37(1) of the AAT Act.

3. In the substantive proceedings the Department has the onus of establishing that the decision, refusing access to the documents, was justified. Reference to its Statement of Facts and Contentions demonstrates that it seeks to do so by demonstrating that the documents are exempt documents under s 34 of the FOI Act. Whilst that section has since been amended[1] it is accepted that this application falls to be determined by reference to s 34(1) as it stood prior to the amendments viz.

   “(1)A document is an exempt document if it is:

   (a)a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;

   (b)an official record of the Cabinet;

   (c)a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or

   (d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”

   [1]    By the Freedom of Information Amendment (Reform) Act 2010, No 51, 2010.

4. The case for the Department, putting it at its broadest, is that the reports were commissioned by the Strategic Priorities and Budget Committee (the SPBC), a committee of the Cabinet, which, by virtue of s 34(6) of the FOI Act, is treated as if were the Cabinet for these purposes. The Department contends that,

   “the documents, having been commissioned by the SPBC for Cabinet purposes, can be taken to have been brought into existence for the purpose of Cabinet consideration.”[2]

   The material to be relied upon by the Department at the hearing includes an affidavit by Mr Christopher Angus, a senior official in the Cabinet Secretariat. The nature of his evidence is illustrated by this extract concerning one of the reports,

   “Document 1: Strategic Review of Indigenous Expenditure 

   13.SPBC commissioned this strategic review by a decision of 21 July 2009, on the basis that relevant Ministers would bring forward a Cabinet Submission on a proposed government response to the report. I consider the inevitable implication of this decision, for any public servant preparing or commissioning the preparing of the review or its final report, was that the report was required to be brought into existence for the purpose of submission of some or all of it for consideration by the Cabinet to inform the Cabinet’s deliberations on the ministers’ recommendations arising from the Review.

   14.The Executive Summary within this document (pages 10 to 34) and Attachment C (pages 391-393) were submitted to Cabinet for its consideration, inasmuch as they formed Attachments to a Cabinet Submission which was circulated to ministers and considered by Cabinet on 15 April 2010.

   15.Parts of the remainder of the document are in effect copies of parts of the Executive Summary, or extracts from it. The recommendations which appear in boxed text on pages 89-91, 93, 96, 102, 105, 106, 108-113, 123, 125-127, 129, 133, 134, 147, 148, 150-152, 154, 156, 158, 162, 165, 167, 170, 171, 176, 180, 191, 197, 200, 206, 209, 217, 219, 222, 230, 237, 239, 240, 242, 243, 257, 258, 263, 264, 267, 269, 272, 273, 279, 284, 289, 291-293, 295, 297-299, 302, 304, 305, 307-310, 317, 323, 335, 339, 344, 360, 363, 369, 371, 378 and 380-383 are exact copies of recommendations which appear in the Executive Summary.

   16.Whilst the remainder of this document was not submitted to Cabinet, its contents are strongly represented in and closely connected to the Executive Summary which was submitted to Cabinet and considered by Cabinet. Disclosure of those contents would in my view impair the confidentiality applying to the deliberations and processes of Cabinet as it would tend to disclose the nature of relevant Cabinet deliberations.”

   [2]    Respondents Statement of Facts and Contentions, paragraph 30.

5. Thus, contends the Department, the reports are exempt by virtue of ss 34(1)(c) or 34(1)(d) of the FOI Act, or, alternatively, the Executive Summaries are exempt under s 34(1)(a) of the FOI Act as documents brought into existence for the purpose of submission for consideration by the Cabinet and the balance of the document is exempt by virtue of s 36 of the FOI Act.

6. However the case is put, a critical issue is whether the reports, or parts of them, were “brought into existence for the purpose of submission for consideration by the Cabinet”.       

7. Section 37(1) of the AAT Act contains the familiar obligation of the decision-maker to lodge in the Tribunal “every … document or part of a document that … is relevant to the review of the decision by the Tribunal.” Thus the sub-section “imposes an objective obligation on the decision-maker to lodge any document which is relevant”[3]. Section 37(2) of the AAT Act provides,

   “(2)  Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.”

   The sub-section does not impose a test of actual relevance, it requires the formation of an opinion that a document or a class of documents may be relevant to the review. In Australian Prudential Regulation Authority v VBN[4] Ryan J described the sub-section as,

   “…providing a facility for the Tribunal to require a decision-maker to lodge with the Tribunal copies of relevant, or possibly relevant, documents in addition to those lodged in discharge of the obligation imposed by s 37(1)(b)” [emphasis added]  

   [3]    Re Vasta and Civil Aviation Safety Authority [2008] AATA 1120; (2008) 110 ALD 401 at [20].

   [4] [2005] FCA 1868; (2005) 42 AAR 394; (2005) 88 ALD 403 at [36].

8. In this application Mr McKinnon contends that the following documents or classes of documents are possibly relevant to the review of the decision[5],

   “4.Each contract between the Commonwealth and the consultant for the production of [the report] …

   5.Any briefing or scoping document given to the consultant for the purpose of informing the consultant on the scope or purpose of [the report]…

   6.Any letter, email or record of communication with any of the consultants about the scope or purpose of any report …”[6]

   The argument advanced by Mr Brennan, counsel for Mr McKinnon, was that the purpose for which the reports were brought into existence is very much an issue in the proceedings and thus, at least, the material sought may be relevant to the review. The Department, whilst accepting that purpose is relevant, seems to suggest that it is sufficient that there is “evidence that the dominant or causative purpose was for the purpose of submission to Cabinet.”[7] The relevant evidence, it submitted, was already before the Tribunal and Mr McKinnon and the Tribunal could ask questions of Mr Angus.

   [5]    The categories of documents were narrowed during the course of the hearing and Mr McKinnon abandoned the claim for documents in paragraphs 1 to 3 of his request.

   [6]    Applicants submissions, p 2

   [7]    Respondent’s written submissions, paragraph 17.

9. But that argument seems to me to expose the flaw in the Department’s logic. The evidence is that Mr Angus was not present at the meetings of SPBC that commissioned the reports, but that he has had access to the relevant Cabinet records. Those documents cannot be produced without breaching the necessary confidentiality of the process of the Cabinet. But if other documents record the purpose for which the reports have been commissioned those documents are, at least, arguably relevant to the decision under review. They may be entirely consistent with Mr Angus’ evidence of purpose, they may detract from it; but they are, at least, arguably relevant to the critical issue in the proceedings and thus the review. The Department submits that it is not necessary that every person who may have contributed to a piece of work be informed of its purpose in order that such a purpose exists. That is undoubtedly correct however I think, with respect, it misses the point. Material that evidences the purpose, or perhaps, one of the purposes, for the commissioning of the reports is relevant to determining whether the Department has discharged its onus in the proceedings. 

10. Documents in Mr McKinnon’s category 5 (briefing documents) and 6 (communications about the purpose of the report) may, in my opinion, be relevant to the review of the decision in issue and I will make an order pursuant to s 37(2) of the AAT Act in relation to those classes of documents, albeit modifying the language by which the documents are described. I am not, however, persuaded that the contracts by which the consultants were engaged might be relevant. I decline to grant relief in relation to that category of documents. I am not prepared to infer that the contracts would detail matters of purpose for the commissioning of the reports.

11. The Department’s submissions make reference to “documents of a commercially sensitive nature”. The notice will require the documents to be lodged in the Tribunal within seven days. If the Department wishes to contend that an order ought be made under s 35 of the AAT Act that can be raised when the documents are lodged.

    I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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      Alex Seagar, Associate

    Date/s of Hearing  17 March 2011
    Date of Decision  18 March 2011
    Counsel for the Applicant         Mr T Brennan (directly briefed)
    Solicitors for the Respondent    Clayton Utz