Patrick and Chief Executive Officer, Services Australia (Freedom of information)
[2022] AATA 4416
•20 December 2022
Patrick and Chief Executive Officer, Services Australia (Freedom of information) [2022] AATA 4416 (20 December 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2021/4608
Re:Rex Patrick
APPLICANT
AndChief Executive Officer Services Australia
RESPONDENT
Appeal from: [2021] AICmr 32
Decision
Tribunal:Deputy President Britten-Jones
Date:20 December 2022
Place:Melbourne
The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – request for access to consultant report – Information Commissioner refused access – Cabinet documents – application of s 34(1)(a)(ii) of the Freedom of Information Act 1982 (Cth) – whether document brought into existence for dominant purpose of submissions for consideration by Cabinet – consideration of exception to exemption in s 34(4) – decision under review affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Commissioner of Taxation v Pratt Holdings Pty Ltd (2003) 195 ALR 717
Fisse v Secretary, the Department of Treasury (2008) 172 FCR 513
Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361Secondary Materials
Department of the Prime Minister and Cabinet, Cabinet Handbook, 13th Ed. (August 2019)
Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth)
Office of the Australian Information Commissioner, Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth)
REASONS FOR DECISION
Deputy President Britten-Jones
20 December 2022
This is an application brought under the Freedom of Information Act1982 (Cth).[1] It involves a very narrow issue, namely whether a report produced by KPMG Australia (the KPMG Report) is exempt from disclosure under s 34.
[1] All references to legislation are to the Freedom of Information Act1982 (Cth) unless otherwise stated.
A request for access to the KPMG Report was refused on 16 January 2019. On 30 June 2021, the Office of the Australian Information Commissioner affirmed the decision to refuse access on the basis that the KPMG Report was exempt under s 34(1)(a).
LEGISLATION
Section 34 provides relevantly:
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
If a document is an exempt document under s 34 then the respondent is not required by the FOI Act to give the applicant access to it by operation of s 11A(4).
ISSUE
There is no dispute with respect to s 34(1)(a)(i) namely that the KPMG Report has been submitted to the Cabinet for its consideration. This is because it is agreed that the KPMG Report was submitted to the Expenditure Review Committee (ERC) which is a committee of Cabinet. Cabinet includes a committee of Cabinet under s 4(1).
There is no dispute that the document held by the respondent is a copy of the KPMG Report for the purposes of s 34(2).
The only contested issue is whether the KPMG Report was brought into existence for the dominant purpose of submission for consideration by the Cabinet.
The Law
The law is settled that:
(a)the time at which the KPMG Report was brought into existence is the time at which the requisite purpose under s 34(1) must be ascertained;[2]
(b)the ‘dominant purpose’ is the ruling, prevailing, paramount or most influential purpose.[3]
[2] Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 at [68] and [110]. See also Freedom of Information Guidelines at [5.65].
[3] Commissioner of Taxation v Pratt Holdings Pty Ltd (2003) 195 ALR 717.
The Full Court of the Federal Court in Fisse v Secretary, Department of Treasury[4] (Fisse) said at [100] and [101]:
[100] The established convention as to Cabinet confidentiality and those common law principles relevant to determining a claim for public interest immunity in respect to Cabinet deliberations, it is considered, may inform the legislative objective sought to be achieved — particularly in relation to s 34 of the 1982 Act. The legislative objective in passing s 34 was self-evidently to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet. The Second Reading Speech of 18 August 1981 thus records in part:
… Only in some cases are the exempt documents defined by reference to the nature of the document itself, such as Cabinet and Executive Council documents. It is of the essence of Cabinet government that the deliberations of Cabinet and of the Executive Council should be protected from mandatory disclosure. Of course, the tenor of many Cabinet decisions, as well as various Executive Council decisions are published. The documents which make these decisions public are not, of course, exempt documents under the Bill.
[101] It nevertheless remains the task of the Tribunal, and of this Court on appeal, to apply the terms of the 1982 Act to the facts as found. That Act attempts to incorporate (not only in s 34 but also in sections such as ss 37 and 42) claims for withholding information which would have been withheld at common law; it is also an Act which more fundamentally confers a right of access, subject only to those exemptions defined by those statutory provisions in Pt IV. Given the legislative objective of ensuring openness in government, it is of fundamental importance that the terms of the 1982 Act providing for exemptions are construed according to their terms.
[4] (2008) 172 FCR 513.
The Tribunal considered the scope of the exemption in s 34 in Secretary, Department of Prime Minister and Cabinet and Anor. v Sanderson (Sanderson):[5]
[5] Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361 at [52] to [56].
[52] Section 34 describes three classes of documents that are exempt documents. The first class, described in s 34(1), provides for four sub-classes of documents, all of which are exempt documents. …
…
[55] … It seems to me that s 34(3) has used the word “deliberation” to signify any careful thought and discussion that has actually taken place in Cabinet. By way of contrast, s 34(1)(a)(i) is referring to the purpose for which a document has been submitted. It has been submitted for its consideration but there is no requirement that the consideration has been undertaken or that it be undertaken in a particular form. As I said in Toomer:
“... In the decision-making process, it is to be expected that deliberation precedes a decision but deliberation is no less deliberation for not resulting in a decision and a decision is no less a decision for not being supported by written evidence of deliberation. Regard must be had to all of the circumstances.
By the same token the words ‘deliberation’ and ‘decision’ should not be read down by considerations as to whether, for example, matters deliberated or decided upon are preliminary to another matter or whether they relate to matters that may be categorised as procedural or substantive. The protection of Cabinet documents of the type specified has been seen as the protection of an essential public interest and so all its deliberations and decisions are protected as provided by s. 34(1)(d). Taking its deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed. If a document discloses such deliberations or decisions then, as Deputy President Hall said in Anderson and Department of Special Minister of State No 2 (1986) 11 ALN 239 (at 27)):
It is not necessary that the decision or deliberation should be quoted verbatim. To construe s 34(1)(d) otherwise would be to place a premium upon verbal accuracy and to require precision of expression in government documents that could only frustrate rather than promote the proper and efficient conduct of government. Whether, in a particular case, disclosure of such a document would involve the disclosure of a decision or deliberation of Cabinet is a question of fact to be decided in light of all the circumstances.
...”
(footnotes removed)
The explanatory memorandum for s 34(4) provides:
Proposed subsection 34(4) introduces a further limit on the Cabinet exemption by making it clear that a document is not exempt only because it is attached to a Cabinet submission, briefing or a document containing information that would reveal a Cabinet deliberation or decision. If, at the time a report is brought into existence it is intended for public release and Cabinet’s consideration is incidental to that main purpose, the report will not be covered by the Cabinet exemption because it will not have been brought into existence for the dominant purpose of submission to the Cabinet. Attaching the document to a Cabinet submission will not make the report exempt under the Cabinet exemption.
EVIDENCE
The respondent called Mr Andrew Peel as a witness. He is a partner of KPMG in the Management Consulting Division. He provided an affidavit affirmed on 3 December 2021 in which he deposed:
[5] In my role as a Director at KPMG, I had responsibility to manage a team of consultants that provide consulting services to government agencies including Services Australia.
[6] During the period of May 2017 until June 2019, I headed a team of consultants that formed part of an integrated team within the Department of Human Services.
[7] In the course of providing those services KPMG produced an evaluative report to assess efficacy of a pilot, which was part of the 2017-2018 Budget measure 'Department of Human Services - Improving service delivery and reducing red tape', to augment the service delivery model using commercial provider capability (the Report).
…
[9] On 1 May 2017, I was contacted by a Department staff member of the Department of the Human Services (the Department) as part of a Request for Refined Offer (RFRO) process under the Department of Immigration and Border Protection Consultancy and Business Services Panel. The RFRO outlined requirements to assist the Department to undertake procurement activity and review the existing departmental operating environment to improve identified processes and operating models.
[10] KPMG was retained for an initial period of twelve weeks to assess the Department's current operating model for the delivery of contact centre telephony services.
…
[13] My main point of contact at the Department was Mr Hamid Heydarian, a General Manager at the Department employed at the Band 1 Level of the APS. Mr Heydarian had responsibility for the delivery of this evaluation.
…
[15] In or around 20 September 2017, I had several preliminary discussions with
Department officials with responsibility for this Project (primarily Mr Heydarian - I do
not recall who else specifically) who informed me that an evaluation would need to be prepared for the purposes of informing the Department of the evaluation of the pilot and seeking Cabinet approval for ongoing funding of the project.[16] Based on those conversations, I understood that the evaluation would be prepared as a high level executive summary for the purposes of informing the Department (primarily at Deputy Secretary level) of the evaluation of the pilot and provision to Cabinet for consideration of the ongoing funding of the project. It is not within my knowledge which of these purposes were the main or primary purpose. My recollection is that the Department had both purposes in mind from the earliest stages of commissioning the evaluation.
[17] I was advised by Mr Heydarian that KPMG was further required to support the Department in establishing the pilot and then assessing the pilot in the form of an evaluation.
[18] I was further advised that this would form a necessary part of the Cabinet approval process to expand the pilot and that a Variation of the Official Order would be required for KPMG to complete further work to create the exempt document, along with other program related activity.
Mr Peel gave evidence under cross examination as follows:[6]
[6] Transcript of hearing conducted on 2 March 2022, p 15 line 30 - p 16 line 43.
MR PATRICK: Okay. When was the order made for you to produce your report?
MR PEEL: The actual variation order was in October of that year.
MR PATRICK: Okay. And at that time, were there any formal instructions from the Commonwealth to advise you that the document was a Cabinet submission - was to be come an attachment to a Cabinet submission?
MR PEEL: Yes. So there had already been discussions leading up to that variation work order around the pilot report itself. My understanding from that time was that it would be used for the dual purpose of informing the Department in terms of the evaluation but also as part of the Cabinet submission.
MR PATRICK: Okay. But you had an order that dealt with the production of a report and it detailed what, you know, what was to - what you were to inform the Department of. I would have thought that if - perhaps an equal purpose for the report was a Cabinet submission, that that would have been annotated somewhere in writing to you?
MR PEEL: No, it wasn't and it wouldn't have necessarily. So that's not necessarily something that's typical within workorders that involve Cabinet submissions. So it's not always highlighted that there's a Cabinet submission as part of the activity.
MR PATRICK: Okay. So when did you complete and transfer the document back to the Department?
MR PEEL: So from memory, it's towards the end of January 2018, beginning in February. I think it was (indistinct).
MR PATRICK: Okay. So
DEPUTY PRESIDENT: Senator Patrick, can I just ask a question there. Mr Peel, you mentioned your understanding with respect to the purpose. How was it that that understanding was conveyed to you?
MR PEEL: So when there was the initial discussions on the requirement for the pilot report, the discussions essentially highlighted that it would be useful for both internal evaluation purposes and also as part of a Cabinet submission. So it was spoken about in those dual components.
DEPUTY PRESIDENT: And who were you speaking with? (Indistinct) ?
MR PEEL: That was the general manager - the national manager for the particular area that was responsible for the program.
DEPUTY PRESIDENT: And what did - is it Hadarian?
MR PEEL: Hadarian, yes.
DEPUTY PRESIDENT: Hadarian. What did he say to you to convey that understanding?
MR PEEL: It was really just along the lines of we're going to need an evaluative report as part of this process. We'll be using that evaluation report for both internal evaluation and also as part of going back to government with the Cabinet submission.
DEPUTY PRESIDENT: Thank you.
MR PATRICK: So when you understood that it was going to be used as a part of the process for, you know, for presenting something to Cabinet, you'll be aware that many documents can be used to support a Cabinet submission?
MR PEEL: I'm not a Cabinet submission expert so
MR PATRICK: All right, fair enough?
MR PEEL: I wouldn't really have an understanding of how they're - can all be put together.
MR PATRICK: Were you ever told that the document that you were producing was to be an attachment to a Cabinet submission?
MR PEEL: Not necessarily the word attachment, but as part of the Cabinet submission. So if I could surmise from that that it's an attachment.
The respondent called Mr John Kalokerinos as a witness. He is currently employed by Services Australia as Acting General Manager of the Governance Division. In 2017 and 2018 he held the position of National Manager, Strategic Advice in the Department of Human Services (now Services Australia) with responsibility for a range of Cabinet related strategic policy matters.
Mr Kalokerinos provided an affidavit sworn on 6 December 2021. He deposed in his affidavit that the KPMG Report was prepared in two parts, 1 December 2017 and 9 February 2018. Further, he deposed:
[5] I was aware of this document at or around the time it was prepared for the then Department. While I was not responsible for commissioning KPMG to prepare the Report, I worked on the preparation of Cabinet submissions relating to the subject matter of the Report.
[6] The Report was attached to one of the Cabinet submissions that I contributed to preparing. That submission, including the Report, was presented to the Expenditure Review Committee (ERC) of Cabinet to enable it to consider matters addressed in the Report.
[7] The ERC is a longstanding committee of Cabinet. In broad terms, it reviews expenditure and revenue matters relating to the Federal Budget.
[8] As I noted above, I was not involved in commissioning KPMG to produce the Report. The then Service Delivery Operations Group within the Department was responsible for commissioning the Report. The relevant National Manager in that group at the time was Mr Hamid Heydarian. He is no longer employed by Services Australia.
[9] I was responsible for preparing the Cabinet submission which indicated that the Report would be prepared, and contributed to preparing the subsequent submission to which the Report was ultimately attached. In order to enable me to do that work, I consulted with Mr Heydarian and his staff in Service Delivery Operations Group about the content of the Cabinet submission.
[10] My recollection is that in those consultations it was explained to me that KPMG had been retained to undertake an evaluation report in order to support the evidence base, which would be attached to the Cabinet submission, and that it would be provided to me for the purpose of annexing to the submission. That is in fact what occurred.
[11] I hold the view that the Report was commissioned for the purpose of contributing to the evidence base about the efficiency and effectiveness of work relating to the 2017-2018 Budget measure 'Department of Human Services - Improving service delivery and reducing red tape', and specifically for the purpose of supporting that case being made to the Cabinet. I say that for the following four reasons.
[12] First, my recollection of the consultations I have referred to immediately above is that the Report was being commissioned specifically to improve the evidence base that was being presented to the ERC for its consideration of the issue to which the Report related.
[13] Second, it is consistent with a common practice over many years, in a range of areas of the Australian Public Service, to provide externally-sourced, independent supporting evidence for contentious policy proposals. The Report related to a significant proposed change to the Department's operating model for providing telephony services. It was expected that the proposals could attract a spectrum of views, would carry a range of risks, and could be controversial. Accordingly, I was not surprised that an external report was being commissioned to support the Cabinet submission, in order to contribute to the Department's evidence base to support the ERC's decision-making.
[14] Evaluation is well-recognised as being helpful for confirming that expected results are being achieved. It assists in developing proposals for government decision-making such as Cabinet, including to generate evidence, data and insights to improve service delivery and customer satisfaction and ensure that public money is used efficiently and effectively. Obtaining an external perspective can increase objectivity and also make use of greater knowledge and expertise in technical aspects of evaluation.
[15] Third, it is consistent with the chronology of government's engagement with this issue. The Report was attached to a Cabinet submission that was finalised in the second half of 2018. However, this was not the first time Cabinet or its Committees considered the subject matter about which the Report related. I am aware, from my involvement in preparing Cabinet (ERC) briefings on this topic, that Cabinet considered the issue in 2017 and then again in the second half of 2018. As the agency assisting the Minister, the Department had responsibility to bring the matter back to the Cabinet in 2018, in light of the expectation of Cabinet and its Committees' consideration of the issue in 2017. Accordingly, the Department commissioned the Report in order to support the return submission to Cabinet.
Mr Kalokerinos gave oral evidence[7] that:
[7] Transcript of hearing conducted on 2 March 2022, p 24 line 14 – 46 and p 32 line 13 – 20.
The report was procured to obtain an external view on an external expert advice on a policy proposal which was contentious in some quarters. And therefore, would help support deliberations by Cabinet, being the appropriate authority for making decisions about it.
…
As a public servant, it's important that we provide broad advice to Cabinet. When I say "broad" is to reflect the spectrum of views and expertise around policy proposals. And in my experience, it was common that Cabinet be informed by expert advice. And where that could not be obtained due to the nature of the expertise, where it could not be obtained from the department itself, it would be obtained by external providers.
…
I expected that it would be attached to a Cabinet submission and that understanding, that expectation, was obtained through my consultations with the business area where, consistently throughout the lead up to November 2017 when that Cabinet submission was provided, they were working to obtain, to procure that expert advice and for the purposes of then providing that evidence to Cabinet. That was my consistent understanding and expectation. And I should add that in the subsequent Cabinet submission, that it was an expectation throughout the drafting of it that it would be attached to it. So, it was consistently reflected in what I worked on, for the benefit of the tribunal, was the preparation of the Cabinet submission not the pilot project itself, but throughout my work on that Cabinet submission it was reflected that it would be attached to be provided to Cabinet.
…
MR DAVIDSON: What, if any, security markings did the report bear the first time you saw it, if you can recall
MR KALOKERINOS: I recall that it was marked as protected sensitive Cabinet and that would have been in May and the version I saw, that first version I saw was marked protected sensitive Cabinet.
MR DAVIDSON: Were there any changes to that marking in the time between when you first saw it and when it was submitted?
MR KOLAKERINOS: Until August, no, so all the versions I saw were marked in that way.
The applicant relied upon the Cabinet Handbook, 12th edition, issued by the Department of Prime Minister and Cabinet.[8] The FOI Guidelines at [5.57] says that agencies should refer to the Cabinet Handbook for guidance about Cabinet processes and the underlying principles of the Cabinet system. I am required by s 93A to have regard to those guidelines when making my decision. The Handbook provides:
[109] Cabinet Submissions, Memoranda and Short-Form Papers may include or be informed by attachments and supporting documents that provide additional information on the proposal. If an attachment or supporting document has been brought into existence for the dominant purpose of submission for consideration by the Cabinet, then the attachment or supporting document must clearly state this. This ensures each document is appropriately identified as a Cabinet document and handled in line with the security requirements for Cabinet material.
[8] Annexure RP-1 to the affidavit of Rex Patrick sworn 7 January 2022; Department of the Prime Minister and Cabinet, Cabinet Handbook, 13th Ed. (August 2019).
Factual Findings
In May 2017, KPMG was engaged by the Department of Human Services (DHS) to undertake a review of the DHS’s current operating model to improve delivery of contact centre services. KPMG was retained for an initial period of 12 weeks from 22 May 2017 to assess the DHS’s operating model for the delivery of contact centre telephony services. Mr Peel was a Director at KPMG and was the Service Provider Representative on the Official Order for the delivery of this project.[9] The KPMG team worked on site at the offices of the DHS.
[9] See Official Order marked AP-1 to the affidavit of Andrew Peel.
In September 2017, Mr Peel had several preliminary discussions with DHS officials, primarily Mr Hamid Heydarian, General Manager, who informed him that an evaluation report would need to be prepared for the purposes of informing the DHS of the evaluation of the pilot and seeking Cabinet approval for ongoing funding of the project. Mr Peel was advised that KPMG was further required to support the DHS in establishing the pilot and then assessing the pilot in the form of an evaluation. Mr Peel was told that this would form a necessary part of the Cabinet approval process to expand the project and that the document would form part of the Cabinet submission. A Variation of the Official Order would be required in order to request a report. The Variation was signed in October 2017.[10]
[10] See Variation of Official Order marked exhibit AP-2 to the affidavit of Andrew Peel.
Mr Kalokerinos, as the DHS National Manager, Strategic Advice, was aware that the ERC had considered the issue which was to be the subject of the report in 2017. The DHS had the responsibility to bring the matter back before Cabinet in 2018 and, accordingly, the DHS commissioned the report in order to support the return submission to Cabinet.
Mr Kalokerinos was aware that KPMG was preparing an evaluative report. He was responsible for the preparation of the Cabinet submissions relating to the subject matter of the report. He consulted with Mr Heydarian and his staff about the content of the Cabinet submission. It was explained to him that KPMG had been retained to undertake an evaluation report for the purpose of contributing to the evidence base about the efficiency and effectiveness of work related to the 2017-18 budget and specifically for the purpose of supporting that case being made to Cabinet. He was told that the report would be attached to the Cabinet submission.
KPMG had the responsibility for drafting the evaluative report and did so within KPMG’s network. Unclassified drafts of the report were then transferred to the DHS enclave to which KPMG was given access. In or around 9 February 2018, a draft report was transferred across to the protected enclave so that a DHS officer could finalise the document and apply the security classification marking. That classification happened after the report had been transferred from KPMG to the DHS.
The report was attached to the Cabinet submission that was finalised and presented to Cabinet for its consideration in the second half of 2018.
The Application of the Facts to the Law
The issue for the Tribunal is whether the report was brought into existence for the dominant purpose of submission for consideration by the Cabinet. Prior to KPMG preparing the report, Mr Peel was told that the report “would be used for the dual purpose of informing the Department in terms of the evaluation but also as part of the Cabinet submission.”[11] Mr Heydarian told Mr Peel that “We’ll be using that evaluation report for both internal evaluation and also as part of going back to government with the Cabinet submission.”[12] Mr Kalokerinos gave evidence that the report was being commissioned specifically to improve the evidence base that was being presented to the ERC for its consideration of the issue to which the report related.[13] He expected that the report would be attached to a Cabinet submission[14] and it was.
[11] Transcript p 15 lines 37 to 39.
[12] Transcript p 16 lines 26 to 28.
[13] Affidavit of John Kalokerinos at [12].
[14] Transcript p 24 lines 34 to 35.
I find that the evidence from Mr Peel of KPMG and Mr Kalokerinos of the DHS establishes that the report was brought into existence for the dominant purpose of submission for consideration by the Cabinet. The purpose is established at the time of the preparation of the report. The report was also prepared for the purpose of informing the DHS about the evaluation of their pilot program. The presence of a second purpose does not diminish the existence of what I consider to be the dominant purpose. The report related to a significant proposed change to the DHS’s operating model for providing telephony services. Cabinet did not have the benefit of a report when it first considered this issue in 2017. The report was commissioned for the specific purpose of improving the evidence base that was being presented to Cabinet in 2018. The report was attached to the Cabinet submission that was considered by Cabinet.
The applicant relies on the statement in the Cabinet Handbook that ‘If an attachment or supporting document has been brought into existence for the dominant purpose of submission for consideration by the Cabinet, then the attachment or supporting document must clearly state this.’ The applicant says that the obligatory terms of this statement applies to the report which was not marked as required by the Cabinet Handbook. The applicant says that the Tribunal is required by s 93A to have regard to the FOI Guidelines which in turn provide at [5.57] that agencies (or in this case, the Tribunal) should refer to the Cabinet Handbook for guidance about Cabinet processes and the underlying principles of the Cabinet system. This does not mean that the terms of the Cabinet Handbook have the same status as the FOI Guidelines. The effect of the applicant’s submission is that a failure to mark an attachment or supporting document as required by the Cabinet Handbook will result in a finding that the attachment was not brought into existence for the dominant purpose of submission for consideration by Cabinet. I reject that submission. The relevant guideline to which I am obliged to have regard says that the Tribunal should refer to the Cabinet Handbook for guidance about Cabinet processes. The guideline does not say that compliance with the Cabinet Handbook is a prerequisite for compliance with the FOI Act. The Cabinet Handbook does not provide guidance about how one should interpret s 34(1)(a)(ii).
There may be occasion where the failure to properly mark an attachment could lend weight to an inference that the attachment was not brought into existence for the requisite dominant purpose. Consideration would need to be given to whether there is any evidence to support that inference. The question of dominant purpose is a question of fact in each case. In this case there is probative evidence from both KPMG and the DHS about the purpose for which the report was brought into existence. No such inference can be drawn in this circumstance.
Decision
I am satisfied that the report was brought into existence for the dominant purpose of submission for consideration by Cabinet and that the document is an exempt document under s 34(1)(a). The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
...[sgd]................................................................
Associate
Dated: 20 December 2022
Date of hearing: 2 March 2022 Applicant: Self-represented Advocate for the Respondent: J Davidson Solicitors for the Respondent: Australian Government Solicitor
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