Montagner and Secretary, Department of Health and Aged Care (Freedom of information)

This matter concerned an application by Mr Carlo Montagner, representing Specialised Therapeutics Australia (STA), for access to documents relating to an application STA made for public funding for a breast cancer treatment. The respondent, the Secretary of the Department of Health and Aged Care, claimed exemptions for certain documents. The dispute came before the Administrative Appeals Tribunal (AAT) for review of the respondent's decision regarding these exemptions.

The primary legal issues before the Tribunal were to determine the nature of "minutes" in the context of the Medical Services Advisory Committee (MSAC) meetings, and to assess whether the respondent had established valid grounds for claiming exemptions under the Freedom of Information Act 1982 (Cth) for the documents or parts of documents sought by the applicant. The Tribunal was also required to consider public interest considerations in relation to any conditionally exempt documents.

The Tribunal considered the definition of "minutes" and evidence regarding their creation and dissemination by the Department. It also examined the respondent's claims for exemptions, applying the principles of the Freedom of Information Act, including the onus on the respondent to justify claimed exemptions and the requirement to balance public interest factors under sections 11A and 11B of the Act. The Tribunal noted that the original decision had been varied by consent on multiple occasions prior to the hearing, reducing the number of documents and redactions in dispute.

The Tribunal's decision varied the original decision by consent of the parties through several orders made between February and August 2022. These orders altered the terms of the original decision by reducing the number of documents and redactions in contention, reflecting agreements reached between the applicant and the respondent regarding the claimed exemptions.