Patrick and Director-General of the Australian Submarine Agency (Freedom of information) - [2025] ARTA 279

Patrick and Director-General of the Australian Submarine Agency (Freedom of information) [2025] ARTA 279 (28 March 2025)
Applicant/s:  Rex Patrick
Respondent:  Director-General of the Australian Submarine Agency
Tribunal Number:                2024/4813

Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:28 March 2025

Decision:The Tribunal affirms the decision under review.
In relation to the issue raised about the Harman undertaking, the Tribunal considers there to be no breach of the implied undertaking in clause 6.21 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 by the Applicant in disclosing part of the Respondent’s Statement of Facts, Issues and Contentions.

..............[SGD]..........................................................
Deputy President Britten-Jones
Catchwords
Freedom of Information – whether the Applicant should have access to a review report
on the process by which the Australian government will identify locations that could be suitable to store and dispose of spent nuclear fuel and nuclear waste – consideration of the Cabinet exemption in s 34(1)(a) of the Freedom of Information Act 1982 – whether the document in issue was brought into existence for the dominant purpose of submission for consideration by Cabinet – decision under review affirmed
Interlocutory application – Implied undertaking – consideration of whether the Harman undertaking as incorporated in to clause 6.21 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 was breached by disclosure of part of the Respondent’s Statement of Facts, Issues and Contentions – no breach found
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419
Comcare v Davies [2008] FCA 393
Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247
Fisse v Secretary, Department of Treasury [2008] FCAFC 188; (2008) 109 ALD 1
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104
Jones v Treasury Wine Estates Limited (No 4) [2020] FCA 1131
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Rand v Comcare [2014] FCA 584
Re Alfred and Department of Foreign Affairs and Trade (1990) 20 ALD 264
Re T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220
Robertson v Singtel Optus Pty Ltd [2023] FCA 1392
R (on the appln of Davey) v Silverstein [2020] VSCA 233
R v Jacobs Group (Australia) Pty Ltd [2023] HCA 23
Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226
Unicomb v Blais [2024] NSWSC 903
Yap v Lee [2024] VSC 730
Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2009 (Cth)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982
Statement of Reasons

This is an application for review of a decision made on 6 March 2024 by the Australian Submarine Agency to refuse the Applicant access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
The only document in issue is a November 2023 report on the process by which the Australian government will identify locations that could be suitable to store and dispose of spent nuclear fuel and nuclear waste. I will refer to the document in issue as the Review Report.
The Respondent says that the Report is wholly exempt from disclosure under the Cabinet exemption in s 34(1)(a) of the FOI Act.
LAW
Section 34 provides relevantly provides:
(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.
(5)  A document by which a decision of the Cabinet is officially published is not an exempt document.
(6)  Information in a document to which subsection   (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a)  the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b)  the existence of the deliberation or decision has not been officially disclosed.
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).
The Full Court of the Federal Court in Fisse v Secretary, Department of Treasury[1] provides some general guidance in relation to the construction to be given to s 34:
[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.
[1] [2008] FCAFC 188; (2008) 109 ALD 1, 28-9 (‘Fisse’).
In relation to s 34(1)(ii), the law is settled that:
(a)the time at which the Review 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]
(c)if the Review Report was not created for the purpose of submission for consideration by Cabinet, the fact that it was subsequently decided to submit it to Cabinet does not bring it within the exemption.[4]
[2] Ibid at [68] and [110]. See also Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 at [5.75] (‘FOI Guidelines’).
[3] Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247, [30]; cited by DP Forgie in Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361 at [62]. See also FOI Guidelines (n 2) at [5.76].
[4] Fisse (n 1) 4 [4]. See also FOI Guidelines (n 2) [5.73].
Section 34(4) provides that a document is not merely exempt because it is attached to a Cabinet submission, record or briefing. The explanatory memorandum for s 34(4) provides:[5]
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.
[5] Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2009 (Cth) 17.
Section 34(6) provides that purely factual material is not exempt unless its disclosure would reveal a Cabinet deliberation or decision and the existence of the deliberation or decision has not been officially disclosed.[6]
[6] See FOI Guidelines (n 2) [5.92] and [5.93].
ISSUE
There is no dispute with respect to s 34(1)(a)(i), namely that the Review Report has been or is proposed to be submitted to the Cabinet for its consideration. This is because it is agreed that the Review Report was attached to a submission to the National Security Committee of Cabinet.
The only contested issue is whether the Review Report was brought into existence for the dominant purpose of submission for consideration by the Cabinet.
EVIDENCE
The parties agreed on a sequence of events as follows:[7]
(a)Cabinet made a decision, the details of which is confidential.
(b)In February 2023, on behalf of the Department of Defence (Defence), Ms Kelton engaged Steve Grzeskowiak to lead an integrated project team to undertake a review to inform the process by which the Government will identify locations in current or future Defence estate that could be suitable to store and dispose of intermediate-level and high-level waste, including spent fuel.
(c)In March 2023, a public announcement was made referring to the review.
(d)In November 2023, the integrated review team finalised a report that is the document in issue (namely, the Review Report).
(e)Subsequent to that, the Australian Submarine Agency provided a Ministerial Brief for Action to the Deputy Prime Minister that attached a copy of the Review Report and recommended the Minister agree to the Review Report being submitted to Cabinet.
(f)Subsequently and in response to the Ministerial Brief for Action, an adviser in the Deputy Prime Minister’s office sent an email to the Australian Submarine Agency directing it to prepare the Review Report for provision to Cabinet.
(g)Subsequent to the direction from the Deputy Prime Minister’s office, the Review Report was uploaded on CabNet as an attachment to a Cabinet submission.
[7] Respondent’s Amended Statement of Facts, Issues and Contentions dated 12 February 2025, Attachment A.
The Applicant filed documentary evidence attached to his witness statement relating to the engagement of, and meetings with, Mr Grzeskowiak, who was engaged by Defence to lead the team to conduct the review which was the subject of the Review Report. The documentary evidence includes heavily redacted email correspondence to and from the Australian Submarine Agency and its predecessor taskforce.
Alexandra Kelton gave evidence for the Respondent by affidavits affirmed on 17 January 2025 (the First Kelton affidavit) and 26 February 2025 (the Second Kelton affidavit). Parts of these affidavits were redacted due to orders of confidentiality made by the Tribunal. Ms Kelton was not cross examined.
Ms Kelton has worked in the Australian Submarine Agency since it was first established on 1 July 2023 when she assumed the role of First Assistant Director-General. Before then, she held the position of First Assistant Secretary, International Policy and Agreements in the Nuclear-Powered Submarine Taskforce (the Taskforce) within the Department of Defence. The Taskforce was the forerunner to the Australian Submarine Agency. Her experience includes direct involvement with the events surrounding the creation of the Review Report.
In the First Kelton affidavit background is provided in relation to the Taskforce, the Australian Submarine Agency and the nuclear waste review.
The First and Second Kelton affidavits and the Applicant’s documentary evidence together with the agreed sequence of events establish the following facts in relation to the creation of the Review Report:
(a)In February 2023, on behalf of Defence, Ms Kelton engaged Mr Grzeskowiak to lead an integrated project team.[8]
(b)The letter of engagement dated 27 February 2023 from Ms Kelton required Mr Grzeskowiak to:[9]
Lead the Review by the end of 2023 to identify locations in the current and future Defence estate that could be suitable to store and dispose of spent nuclear fuel and higher-level radioactive waste generated by Australia’s nuclear-powered submarines.
(c)The letter of engagement explains that the role of Mr Grzeskowiak would be advisory in nature and that any decision related to the storage and disposal of radioactive waste is a decision for the Australian Government. The letter is marked ‘PROTECTED CABINET’.[10]
(d)On 3 March 2023 an invitation to a meeting was sent to representatives chosen to participate as members of the integrated review team.[11]
(e)On 14 March 2023, the public was informed that Defence would lead the review and that outcomes of the review would inform a more detailed process including consultation and engagement with stakeholders and consideration of wider social and economic implications.[12]
(f)On 5 April 2023, a ‘drafting plan for the Review of the Defence Estate’ was circulated amongst members of the integrated review team.[13] On 20 June 2023, ‘the broad outline of the report themes/chapters’ was circulated amongst members.[14] Drafting of the report continued in August 2023[15] through to November 2023 when the integrated review team finalised the Review Report.
(g)The final draft of the Review Report was attached to a Ministerial Brief for Action from the Australian Submarine Agency to the Deputy Prime Minister. The Ministerial Brief recommended the Minister agree to the Review Report being submitted to the National Security Committee of Cabinet.[16]
(h)In response to the Ministerial Brief, the Office of the Deputy Prime Minister emailed the Australian Submarine Agency confirming that the Deputy Prime Minister would like to bring forward a submission to the National Security Committee of Cabinet and requested that planning and preparation to do so commence.[17]
(i)The Review Report was then uploaded on CabNet as an attachment to a Cabinet submission.
[8] First Kelton affidavit, 4 [22].
[9] Witness statement of Rex Patrick dated 15 February 2025, RP-1, 1.
[10] Ibid.
[11] Witness statement of Rex Patrick dated 15 February 2025, RP-4, 1.
[12] First Kelton affidavit, 4-5 [23] and AK-1.
[13] Witness statement of Rex Patrick dated 15 February 2025, RP-6, 2.
[14] Witness statement of Rex Patrick dated 15 February 2025, RP-4, 208.
[15] Ibid 407.
[16] First Kelton affidavit, 6 [32] and AK-2.
[17] Ibid [33] and AK-3.
Consideration of the Dominant Purpose – s 34(1)(a)(ii)
The onus lies on the Respondent to establish that the Review Report was brought into existence for the dominant purpose of submission to Cabinet.[18] The Applicant contends that the evidence from Ms Kelton does not establish this dominant purpose.
[18] Section 61 of the FOI Act; Fisse (n 1) 11 [30].
The Applicant submits that the relevant time for considering whether there was the requisite dominant purpose is when drafting of the Review Report commenced, namely in March or April 2023, shortly after the engagement of Mr Grzeskowiak and the first meeting of the members of the review team.
In this case, the Review Report was drafted over a period of time from March to November 2023. Its creation was not instant, but rather took some time.
The statement in the case law, as expressed in the FOI guidelines, that the relevant time for determining the purpose is the time the document was created was derived from the decision of Re Alfred and Department of Foreign Affairs and Trade[19] where the Tribunal President accepted the submission that the Tribunal must look at the document at the time it was created rather than at the time of the hearing. The President went on to say that the words of s 34(1)(a) ‘make it clear that the time the document was brought into existence is the relevant time at which to look at the document’.[20] The authorities do not consider at what stage in the drafting of the document that it has been brought into existence.
[19] (1990) 20 ALD 264.
[20] Ibid 266.
It is my view that the time a document is brought into existence is the time when drafting of the document commences. This is the time of its creation or when ‘it was brought into existence.’ The provision does not contemplate that the document will be in its final form or version but rather that it has been brought into existence. It is not necessary for the document to have been completed to come within the meaning of being brought into existence. It follows that I accept the Applicant’s submission that the relevant time for considering the dominant purpose is in March or April 2023 when drafting of the Review Report began. Ms Kelton addresses her evidence to this very point by deposing in her Second affidavit that at the commencement of his engagement, she told Mr Grzeskowiak that she intended the Review Report would be provided to the National Security Committee of Cabinet.
The evidence of Ms Kelton is critical to the determination of purpose under s 34(1)(ii). She engaged Mr Grzeskowiak to lead the team that drafted the Review Report. Ms Kelton’s intention, at the time the drafting of the Review Report commenced, was ‘to seek the Deputy Prime Minister’s agreement’ for the Review Report to be provided to Cabinet.
In Fisse,[21] Buchanan J addressed the question of purpose and asked:
(a)whether there was any evidence capable of supporting the conclusion of the AAT about the purpose for which the executive summary of the report was brought into existence and, as a related issue,
(b)whether there was any evidence capable of supporting a conclusion that a purpose or intention of placing the executive summary, as such, before the Cabinet for its consideration could reasonably be inferred to have been formulated at or before the creation of the executive summary rather than later.
[21] Fisse (n 1) 12-3 [33].
The Applicant submits that there is insufficient evidence before the Tribunal in relation to both limbs above. The Applicant says first that Ms Kelton’s intention does not establish the dominant purpose and, second, that the purpose of the submission to Cabinet is not established until the Minister became involved in November 2023 and decided (as evidenced by AK-3 in the First Kelton affidavit) to bring forward a submission to the National Security Committee of Cabinet after having received the Ministerial Brief.

In Fisse, the Respondent called the Assistant Secretary, Cabinet Secretariat, Department of Prime Minister and Cabinet to give evidence about purpose. She expressed an opinion based on a consideration of the documents and the usual practices of Cabinet, but she had no direct knowledge of the purpose for which the document in issue was prepared.[22] Buchanan J found that her opinion did not support a finding that the document in issue was brought into existence for the dominant purpose of submission to Cabinet:[23]
In my view Ms Croke’s opinion about the matter which the AAT had to decide should not be regarded as evidence providing support for that conclusion, as I have already said. She very properly identified the matters upon which the opinion was based but they were inadequate to sustain it. She gave no evidence that she was privy to, or had even indirect knowledge of any requisite intent. Her opinion was based, as she said, on a preference for one reading of the correspondence over another, earlier, interpretation of it. The other evidence she gave of general practice was equally consistent with either interpretation on the facts of this case. Even allowing that the AAT was not bound by the rules of evidence (s 33(1)(c) of the AAT Act) I do not think Ms Croke’s opinion should be regarded as any evidence at all on the question.
[22] Ibid 16 [51], 36 [127].
[23] Ibid 22 [71].
Unlike the Assistant Secretary in Fisse, Ms Kelton had direct knowledge of the requisite purpose because she wrote the letter of engagement to Mr Grzeskowiak who led the team that drafted the Review Report. The letter did not expressly state that any report generated by the review would be provided to Cabinet, but it was clear from its terms that advice was being sought that would inform any decision related to locations for the storage and disposal of radioactive waste which ‘is a decision for the Australian Government’.[24] In the Second Kelton affidavit, she explained that:
[5] The capitalised reference to ‘Australian Government’ in the letter of engagement is synonymous with Cabinet. That is a common expression in Defence and ASA when referring to Cabinet. This is why that document is classified PROTECTED CABINET.
[24] Witness statement of Rex Patrick dated 15 February 2025, RP-1, 1.
Further, and most importantly, Ms Kelton gave direct evidence relevant to the requisite purpose in her First and Second affidavits as follows:
(a)In her role with the Taskforce and the Australian Submarine Agency, she was responsible for the progress of the Review Report.[25]
(b)She was aware that the Review Report was prepared to provide advice to Government.[26]
(c)She informed Mr Grzeskowiak that she intended the Review Report would be provided to the National Security Committee of Cabinet and that she intended to seek the Deputy Prime Minister’s agreement for this to occur.[27]
(d)The team that was preparing the Review Report always intended that, once complete, it would be provided to the Deputy Prime Minister with a recommendation that it be submitted to the National Security Committee of Cabinet.[28]
(e)The Review Report is marked as a ‘DRAFT FOR DISCUSSION’ which is a reference to future consideration of it by Cabinet.[29]
[25] First Kelton affidavit, 6 [31].
[26] Ibid.
[27] Second Kelton affidavit, [3].
[28] First Kelton affidavit, 6 [31].
[29] Ibid 5 [24].
Ms Kelton’s evidence supports a finding that the Review Report was brought into existence for the dominant purpose of submission for consideration by Cabinet. Her clear intention was for the Review Report to go to Cabinet and it is not in dispute that it was attached to a submission to Cabinet.[30] There was no suggestion that her intention was not genuinely held or that it lacked foundation. Ms Kelton was not cross examined.
[30] Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2025 at 2 [5].
The Applicant submits that the Tribunal must be satisfied by objective evidence that at the time the work started on the Review Report, a clear and specific instruction had been given for a report to be generated for the purpose of submitting it for consideration by Cabinet.[31] The Applicant contends that the instruction must come from the Prime Minister (as Cabinet chairperson) or a Cabinet member, or the Cabinet Secretariat acting on explicit instructions from Cabinet, the Prime Minister or another Cabinet member.[32] The Applicant relies upon the Cabinet handbook and says that ‘to enable any public servant to attach Cabinet confidentiality to a document they are producing because they view it important puts a very large crack in the dam wall of the cabinet convention’.[33] Finally, the Applicant contends that this instruction from the appropriate person is missing from the evidence before the Tribunal.
[31] Ibid 4 [24].
[32] Ibid [22].
[33] Ibid [23].
The Applicant’s contention about the missing evidence is made without the knowledge of what is contained in the redacted parts of the First Kelton affidavit. Without disclosing its contents, I can say that Ms Kelton addresses this very issue in the redacted part of the First Kelton affidavit. Having considered the redacted parts of the First Kelton affidavit, I am satisfied that the Review Report was brought into existence for the dominant purpose of submission for consideration by Cabinet.
In any event, the need for a clear and specific instruction to emanate from Cabinet is not apparent from s 34(1)(a) which does not mandate the evidence required to be satisfied that a document was brought into existence for the requisite purpose. No doubt, evidence of an express request from Cabinet to a Government Department or Agency for a report to go to Cabinet for consideration would satisfy the second limb of s 34(1)(a) but satisfaction can be achieved in other ways.
The underlying test is to understand the circumstances of the creation of document and determine why it was brought into existence. That might involve evidence of the subjective intention of the author or the person who arranged the report, together with a consideration of the broader context of its creation. The Federal Court made a similar point in the context of legal professional privilege in Robertson v Singtel Optus Pty Ltd:[34]
[89] In summary, the purpose for which a document was created is a matter of fact to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. Dominant purpose may be established by evidence and other material and circumstances showing such a description is justified. Proof of dominant purpose can be achieved in a variety of ways, depending on the case at hand. In discharging the onus, focused and specific evidence is needed. But the nature and extent of the evidence needed to prove the existence of privilege is fact and circumstance dependent.
[90] The evidence of the intention of the person who made the document, or the person who authorised or procured it, is not conclusive of purpose. In many instances, it is the character of the documents over which privilege is asserted that will illuminate the purpose for which they were created.
[34] [2023] FCA 1392 [89]-[90].
It may be that probative evidence as to purpose could be given by anyone involved in the creation of the document in issue. Ms Kelton was a very senior public servant directly involved in the creation of the Review Report because she, in her capacity as First Assistant Secretary of the Taskforce, engaged Mr Grzeskowiak who led the team that drafted the Review Report. In her First and Second affidavits she has expressed the purpose for doing so. That purpose is reflected in her intention that the Review Report would be provided to the National Security Committee of Cabinet. As a senior public servant directly involved in the creation of the Review Report, her evidence as to why the document was created should be accepted. The failure to expressly state in the engagement letter that any advisory report would be submitted to Cabinet does not mean that there was no intention to do so at that stage. The evidence establishes to the contrary because Ms Kelton told Mr Grzeskowiak that she intended the Review Report would be provided to the National Security Committee of Cabinet.
The Applicant contends that the evidence suggests that the Review Report, at the time of its creation, was not intended for Cabinet but was instead an internal Defence process intended to inform public consultation. This is contrary to the affidavit evidence of Ms Kelton. Further, the letter of engagement expressly stated that any decision was a decision for the Australian Government by which Ms Kelton meant a decision for Cabinet as opposed to the Department of Defence. Further, the presence of another purpose to inform public consultation does not detract from my finding that the dominant purpose (namely the ruling, prevailing or most influential purpose)[35] was the submission to Cabinet.
[35] FOI Guidelines (n 2) at [5.76].
The Applicant places significant weight on what appeared to be procedural irregularities in the creation of the Review Report, such as the document not being prepared on the Cabinet system and emails concerning the preparation of the report not being classified or marked PROTECTED CABINET. Given the direct evidence from Ms Kelton as to purpose, I do not give much weight to these procedural irregularities which are not determinative of the issue. Whether the Review Report was properly classified or marked does not determine its exemption status.
The Applicant contends that the Ministerial Brief, at AK-2 of the First Kelton affidavit, which includes a recommendation to include the Review Report as part of a submission to Cabinet, is clear evidence that up to the date of the Ministerial Brief, it was not intended by the Cabinet or Ministers to be for Cabinet.[36] I do not accept this contention because the statement of the recommendation in the Ministerial Brief is not inconsistent with the establishment of the purpose at the time the Review Report was created in March or April of the same year. The statement of the recommendation at this later date merely reflects that the drafting of the Review Report had been completed in or around November 2023 and was now ready for submission to Cabinet.
[36] Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2025 at 9 [40].
The Applicant also relies upon AK-3 of the First Kelton affidavit to suggest that the requisite purpose did not manifest until in or around November 2023, but I reject that contention. The statement in the letter from the office of the Deputy Prime Minister that he would like to bring forward a submission to Cabinet to consider does not mean that there was no earlier intention to prepare a document for submission to Cabinet. This letter merely reflected that the time had come to plan and prepare for the Review Report to be submitted to Cabinet.
Finally, the Applicant asserts a waiver of confidentiality but there is no evidence that the Review Report has been publicly disclosed or that Cabinet has authorised disclosure of the content of it.
In all the circumstances, I am satisfied that the Review Report was brought into existence for the dominant purpose of submission for consideration by Cabinet. It follows that both limbs of s 34(1)(a) are satisfied and that the Review Report is an exempt document subject to consideration of the exception in s 34(6).
Consideration of Purely Factual Material - s 34(6)
Section 34(6) provides that purely factual material is not exempt unless its disclosure would reveal a Cabinet deliberation or decision and the existence of the deliberation or decision has not been officially disclosed.
I have been provided with a copy of the Review Report in order to consider if any part of it can be released as ‘purely factual material’ under s 34(6).
The nature of the Review Report is that it is a significant piece of policy advice to the government to inform the decision-making process by which the government will identify locations in the current or future Defence estate that could be suitable to store and dispose of nuclear waste including spent fuel. It presents a series of recommendations for consideration and contains very limited factual material. The document is advisory in nature and includes opinions and options about what ‘could’ or ‘should’ be done in the future. There is factual material provided as background, but it is intertwined with the recommendations and advice such that it cannot be meaningfully viewed in isolation. Some of the factual material relating to the experience of others would reveal the nature of some of the advice being given.
The second paragraph on page ‘iii’ of the Review Report is consistent with and adds no more than what was publicly disclosed as referred to in paragraph 23 and included in AK-1 to the First Kelton affidavit. I have assumed that the Applicant is not interested in that part of the Review Report being released to him, but if I am wrong in my assumption, I would consider releasing it. Otherwise, it is my view that the exception in s 34(6) has no application and that the Review Report is fully exempt pursuant to s 34(1)(a) of the FOI Act.
Decision of the Tribunal
I have found that the Review Report is an exempt document under s 34(1)(a) of the FOI Act. The Applicant is not entitled to access the Review Report. I have not considered the Respondent’s further claim for exemption under s 47C. The decision under review is affirmed.
A FURTHER ISSUE
The parties have requested that I consider a further issue that was raised because the Applicant, prior to the hearing of this matter, posted internet material on X and published an article on Michael West Media relating to this proceeding. The Respondent submits that the Applicant has breached the implied undertaking, known as the Harman undertaking, referred to in clause 6.21 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (the PD), to not use documents lodged by the Respondent for any purpose other than the purpose for which they were given to the Tribunal. The Respondent is not seeking a declaration that an offence was committed by the Applicant in disclosing the material, but instead the parties consider this is an appropriate opportunity for the Tribunal to clarify the application of the Harman undertaking in accordance with the PD.
Background
On 19 November 2024, the Tribunal issued a direction that the Respondent file a Statement of Facts, Issues and Contentions (SOFIC) and any evidence on or before 20 January 2025.
On 20 January 2025, the Respondent lodged a SOFIC and the First affidavit of Alexandra Kelton with redactions which were to be the subject of an application for confidentiality.
On 23 January 2025, the Applicant posted on X images of the header of the SOFIC and paragraphs 32 and 33 of the First Kelton affidavit. With respect to the SOFIC, none of its content was disclosed because the image was limited to the header of the document. With respect to the First Kelton affidavit, none of its contents, nor the name of the deponent, was disclosed because the paragraphs chosen for the image were fully redacted except for the paragraph number (ie no text) with a note that the redacted passages were ‘Confidential’.
The parties engaged in correspondence asserting their respective positions in relation to the Harman undertaking.
The next contentious event was on 3 February 2025, when the Applicant published an article on Michael West Media which included a quote of paragraph 19 of the SOFIC which said ‘[t]he fact that the document was not created within the ‘CabNet’ system is not indicative one way or the other as to the intention of the authors’.
The Implied Undertaking
Clause 6.21 of the PD says:
If a party has obtained a document provided under compulsion in an application before the Tribunal, the law implies that the parties who have received that document have given an undertaking that the document will not be used for any purpose other than the purpose for which it was given to the Tribunal unless:
(a) the document was received in evidence by the Tribunal in a public hearing of the application for review and there is no restriction on the publication or disclosure of the document by an order of the Tribunal or by another statutory provision; or
(b) the Tribunal gives a party or parties permission to use the document for another purpose.
Clause 6.22 of the PD says:
The implied undertaking applies to:
(a) documents produced under sections 23 and 25 of the Act;
(b) documents lodged pursuant to a direction given by the Tribunal (including expert reports or witness statements); and
(c) documents produced in response to a summons issued by the Tribunal.
Clause 6.23 says:
The implied undertaking continues even after an application for review has been finalised. A breach of the implied undertaking by using the document or documents for another purpose may have serious legal consequences.
Contentions in Summary
The effect of the Respondent’s submission was that the SOFIC and the First Kelton affidavit were ‘documents lodged pursuant to a direction given by the Tribunal’ and that pursuant to clause 6.22(b) of the PD the implied undertaking applies to them.
The effect of the Applicant’s submission was that the only information published by him was an extract from the SOFIC which was a legal submission not covered by the implied undertaking.
Consideration
I note at the outset of my consideration that the primary issue that the parties seek to be clarified is whether the Harman undertaking applies to Statements of Facts, Issues and Contentions lodged in proceedings in the Tribunal.
I will not focus on the images posted by the Applicant on X on 23 January 2025 because those images contained no material content from either the First Kelton affidavit or the SOFIC. Pursuant to clause 6.22(b) of the PD, the implied undertaking would apply to the Kelton affidavits, and any pre-hearing disclosure of the contents of those affidavits lodged with the Tribunal would clearly be a breach of the Harman undertaking and clause 6.21 of the PD. A breach would extend to naming the deponent of the affidavit. In the rather unusual factual circumstances of this case, the name of the deponent to the First Kelton affidavit was not disclosed and nor was any text from the affidavit disclosed. Consequently, there was, at worst, a technical breach, in the sense that there was no material disclosure and it had no impact. I note that the Kelton affidavits were received in evidence by the Tribunal at the public hearing on 3 March 2025. Therefore, the implied undertaking in clause 6.21 no longer applies to the Kelton affidavits.
The focus of this application was the article authored by the Applicant and published on the internet on 3 February 2025. This article pre-dated the hearing and contained a direct quote from the Respondent’s SOFIC. The Applicant accepts that the implied undertaking applies to the First Kelton affidavit but says that it does not apply to the contentions or submissions expressed in a SOFIC.
The authorities relevant to the Harman undertaking and its application involve significant legal complexity and some judicial disagreement. The Tribunal’s PD goes some way to clarifying the operation of the Harman undertaking in the context of the Tribunal, making it clear, for example, that the undertaking applies to expert reports and witness statements (which would include affidavits or statutory declarations) lodged pursuant to a Tribunal direction. That clarity is not extended to statements of facts, issue and contentions as they are not expressly referred to in the PD. I have attempted to avoid the legal complexities relating to the Harman undertaking, but when construing the PD it is necessary to consider the common law which is, in effect, incorporated into paragraph 6.21 of the PD.
The Harman undertaking and its application in Australia

The House of Lords in Harman v Secretary of State for the Home Department[37] (Harman) identified an implied undertaking not to use documents disclosed on discovery in a proceeding for a purpose unconnected with the proceeding.
[37] [1983] 1 AC 280.
In Harman, Lord Diplock said:[38]
the solicitor of one party to civil litigation, who in the course of discovery in that litigation has obtained possession of copies of documents belonging to the other party to the litigation, [is] to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose of his own not reasonably necessary for the proper conduct of the action on his client's behalf; …
[38] Ibid 302.
The Harman undertaking was reformulated by the High Court of Australia in Hearne v Street[39] (Hearne), where the plurality said:[40]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. [footnote omitted]
[39] (2008) 235 CLR 125.
[40] Ibid 154-5 [96].
The High Court in Hearne said that because ‘[c]ompulsory pre-trial exchange or disclosure of materials, such as witness statements and experts’ reports, is now extensive’,[41] the undertaking attaches to a wide range of materials, including: [42]
documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. [footnotes omitted]
[41] Ibid 131 [5] (Gleeson CJ).
[42] Ibid 154–5 [96].
In Helicopter Aerial Surveys Pty Ltd v Garry Robertson[43] (Helicopter), Brereton J reviewed Hearne and the decisions on which it is expressed to be based, and stated at [39]:
Accordingly, I seriously doubt whether in principle the implied obligation attaches to affidavits sworn and served in the ordinary way in the course of proceedings. By reference to “the ordinary way”, I exclude affidavits sworn in response to orders for disclosure, such as of the type referred to in Medway v Doublelock. But, in referring above to “the ordinary course”, I do not regard a mere timetable requiring affidavits to be used in proceedings to be served by a particular date as amounting to compulsory process. Such a timetable does not compel a party to disclose information that it does not wish to disclose, and it does not compel a witness to disclose any information; it simply fixes a time by which any evidence to be relied on must be served. It is quite distinct from an order which requires a party to make an affidavit deposing to certain matters, which would amount to compulsory process in the relevant sense.
[43] [2015] NSWSC 2104 at [9]–[10] (‘Helicopter’).
R (on the appln of Davey) v Silverstein[44] (Silverstein) is a decision of the Court of Appeal of the Supreme Court of Victoria. It dealt with an appeal from contempt claims. At [59] the Court of Appeal summarised the issue before the court in this way:
In the contempt proceeding, and on this application, the competing contentions, concerning the application of the Harman undertaking, proceeded on the basis that that undertaking extends to and covers all documents which have been filed, served or produced to the Court in a proceeding by compulsion. The issue before the primary judge, and on this application, concerned what is meant by ‘compulsion’ in that context, and in particular whether the three affidavits, that were filed in support of the application for summary judgment in the debt recovery proceeding, and the affidavit that was filed in support of the application for preliminary discovery against ACS in the Magistrates’ Court, were, in effect, filed and served by ‘compulsion’.
[44] [2020] VSCA 233.
In Silverstein, the Court of Appeal held that because there was no compulsion to make the application for summary judgment in the debt recovery proceedings or the application in the preliminary discovery proceedings, the requirements in the respective rules that each such application must be filed with an affidavit in support did not provide any basis for the implied undertaking to apply to them and there was no contempt.
At [87] in Silverstein, the Court of Appeal specifically contrasted the nature of the affidavits before the court and the documents contained in the cases referred to in Hearne, saying (footnote omitted):
By contrast, the documents, that were at issue in the cases referred to by Hayne, Heydon and Crennan JJ in Hearne, were documents in respect of which the provider of the documents, in a real sense, had no such option whether to make disclosure. Documents that are provided pursuant to an Anton Piller order or subpoena are documents provided in obedience to a court order, non-compliance with which, ordinarily, can be dealt with by way of committal for contempt of court. Rule 24.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides that where a party fails to comply with an order for discovery or inspection of documents or for answers to interrogatories, the Court may order (in the case of a plaintiff) that the proceeding be dismissed, or (in the case of a defendant) that the defendant’s defence (if any) be struck out. Importantly, while, in the passage in Hearne, reference was made to affidavits, in the two cases cited by the plurality, those affidavits were made and filed pursuant to a court order.
In Re T & F.S. Woods Pty Ltd v Woods,[45] there was an application in the Federal Court to use affidavits which had been filed and served in those proceedings for the purposes of other proceedings brought in the Federal Circuit and Family Court of Australia. Derrington J concluded at [23] that:
… timetabling orders which require a party to file and serve any affidavits on which it intends to rely by a particular date, in general, do not compel the disclosure of the specific information or documents included in affidavits filed and served in compliance with such orders: Leagou Pty Ltd v Cmr of Taxation [2020] FCA 1162 [19]–[24].
[45] [2021] FCA 1220.
In Unicomb v Blais,[46] McGrath J conducted a thorough analysis of the authorities and said:
A party who is required by an ordinary timetabling order of the court to provide any affidavits on which they intend to rely at the hearing is not compelled to provide them. The party in those circumstances has a choice whether to provide a particular affidavit and what the contents of that affidavit should be. Doing so is not a “very serious invasion of privacy and confidentiality” of the party’s affairs in the sense described in Riddick and Harman, as applied by Hearne, as the rationale for the implied obligation.
[46] [2024] NSWSC 903 at [248].
McGrath J concluded:[47]
In my opinion, it is clear that:
(1) the Relevant Affidavits were each provided voluntarily in accordance with the ordinary timetabling orders of the court made on 14 September 2021 for the filing and serving of evidence in the Probate Proceedings and the Equity Proceedings;
(2) the Relevant Affidavits were not compelled by the court to be provided in those proceedings; and
(3) the possession of the Relevant Affidavits by Marie and Mr Lacey as her solicitor in the Probate Proceedings and the Equity Proceedings is therefore not subject to the implied obligation.
It follows that the plaintiffs are also not subject to the implied obligation with respect to the Relevant Affidavits, nor is Mr Lacey as their solicitor in these proceedings.
[47] Ibid [250]- [251].
There was a similar result in Yap v Lee,[48] where Waller J in the Supreme Court of Victoria concluded:
The affidavit sworn by Ms Lee on 19 July 2019 was produced following timetabling orders made by Lyons J on 2 July 2019. Having regard to the decision of the Court of Appeal in Silverstein and the analysis of McGrath J in Unicomb, I do not consider that the affidavit or its exhibits were produced under compulsion in the relevant sense. The order made by Lyons J on 2 July 2019 did not require the first defendant to disclose information or documents. The first defendant was not compelled to file and serve her affidavit or to include any documents as exhibits to that affidavit. She could have elected not to do so.
[48] [2024] VSC 730 at [118].
The cases above consider the application of the Harman undertaking to affidavits filed in Court pursuant to timetabling orders and stand for the proposition that orders of that nature do not compel a party to file a particular affidavit or to disclose information or documents that they may not wish to disclose. Consequently, the Harman undertaking will not apply to affidavits filed in court in those circumstances because the undertaking only applies to documents provided under compulsion. The situation will be different for an affidavit or a witness statement lodged pursuant to a direction in the Tribunal because of the express statement in the PD that the implied undertaking applies to a witness statement if lodged pursuant to a direction of the Tribunal. The reference to a witness statement in the PD would include an affidavit or a statutory declaration.
The Courts have also considered whether the Harman undertaking applies to pleadings.
In Helicopter,[49] after addressing the question of whether the Harman undertaking applies to affidavits served in the ordinary course of litigation, Brereton J said:
Against that, it has never been the case that pleadings have been regarded as subject to the implied undertaking, nor other evidence served in support of the pleadings, such as the claim book in Attorney-General (N.T.) v Maurice [1986] HCA 80; (1986) 161 CLR 475. …
[49] Helicopter (n 43) [35].
In Canterbury-Bankstown Council v Payce Communities Pty Ltd,[50] Henry J considered whether the Harman undertaking applies to pleadings and concluded that it did not. Her Honour said at [121] to [131]:
[50] [2019] NSWSC 1419 (‘Canterbury-Bankstown Council’).
First, pleadings are, in my view, of a different nature to the species of other documents to which the Implied Undertaking applies. A pleading is a document which a party voluntarily files with the Court and serves on another party to set out the scope of the issues to be determined by the Court. In that sense, pleadings are not produced on compulsion as part of a Court process.
Accepting that Council’s defence documents were served in accordance with orders made by this Court is not, in my opinion, enough to bring them within the “Harman” principle and subject to the Implied Undertaking. A defendant is not compelled by Court to put forward a defence by filing a list response, or to disclose evidence by way of documents and information at that time. The rules of the Court require a defendant, if it chooses to defend the claim by lodging a list response, to admit or deny the allegations and provide particulars in support.
Second, the purpose of the Implied Undertaking is to protect the privacy of the person disclosing (under compulsion) the relevant document and thereby encourage full and frank disclosure during litigation: Gavan v FSS Trustee Corporation [2019] NSWSC 667, British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571, at [20]. It is focused on the protection of a party’s private documents and the information contained within them, which are obtained during the Court process.
Third, pleadings are not, in the words of the High Court, “received into evidence”. They are not read onto the record and are not evidence. They communicate the nature of the parties claim and defence, and are the basis on which proceedings are conducted in open court from the start of the court process.
Fourth, and as Council seems to accept in its written submissions, the Implied Undertaking would not apply to a list statement as it is not a document which a party to litigation is compelled to produce. I query why, in those circumstances, the Implied Undertaking, which if breached is punishable by conviction for contempt of court, would extend to the pleading filed in response by a defendant.
Fifth, extending the Implied Undertaking to pleadings seems to me to be incompatible with the new practice of this Court, which is that access will normally be granted to non-parties in respect of pleadings in proceedings that have not been concluded with leave of a judge or a registrar: Practice Note SC Gen 2 dated 4 October 2019. Accepting that leave is required for access, why should a plaintiff to proceedings by bound by the Implied Undertaking in respect of a defence when it will be normal for non-parties to obtain access with leave and not be bound?
Sixth, in eisa Limited v Damien Brady and 2 Ors, Santow J had to consider and determine an application by a media organisation for access to the pleadings on the court file at a time when the practice notice was in different terms. His Honour’s references at [21] and [22] to the Implied Undertaking were by analogy, in the context where the media organisation seeking access to the court file had to demonstrate there were exceptional circumstances, akin to the need to show special circumstances if a party is to be released from the Implied Undertaking.
With respect to His Honour, the statement (at [21]) that “there is a further principle which applies to documents brought into existence or produced for the purposes of litigation” appears to go beyond the scope of the Harman principle, as accepted by the High Court in Hearne v Street. The Implied Undertaking does not apply to all documents brought into existence for the purposes of litigation. Rather, it applies to documents or information which a party to litigation is compelled to disclose to another party.
Other cases referred to by Council in its written submission (Tuquiri v Australian Rugby Union Ltd [2009] NSWSC 781, McLachlan v Brown & Australian Broadcasting Corporation (No 5) [2018] NSWSC 1976) are also less instructive as, like in eisa, they dealt with the question of whether a non-party (the media) could get access to pleadings on the court file under the previous practice note, and not whether the parties to proceedings were bound by an Implied Undertaking.
Seventh, and while not determinative, it is, to my mind, relevant that neither the High Court in Hearne v Street nor the commentary in JD Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Australia) (at 913-914) refer to pleadings in the list of documents said to be caught by the Implied Undertaking, although I accept that neither list is exhaustive.
In conclusion, although there were orders of the Court for Council to file a List Response and to provide particulars, I am not satisfied that, as “quasi-pleadings”, the Council defence documents were documents produced under compulsion or of the type that are subject to the Implied Undertaking. It follows that I have concluded Payce has not breached the Implied Undertaking by serving a copy of the Daubney Report on Council and the Superintendent as part of the Final Payment Claim, and would not be in breach if it were to rely on it as part of the SoP Act process.
Consideration
The approach that the Court took above in relation to pleadings is instructive when considering the appropriate approach as to whether the Harman undertaking applies to the SOFIC lodged by the Respondent. Whilst there is no requirement that parties before the Tribunal file pleadings, clause 7.1 of the PD does provide that the Tribunal may order parties to lodge a Statement of Facts, Issues and Contentions which should be in the form set out in Part 7 of the PD. The PD was made under s 36(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) by which the President of the Tribunal may make practice directions in relation to the procedure of the Tribunal amongst other things. The form of the Statement of Facts, Issues and Contentions prescribed by Part 7 of the PD is designed to identify the matters to be resolved by the Tribunal in much the same way as pleadings determine the case for consideration by a court. Clause 7.2 says that the part entitled ‘Facts’ should:
(a)set out the relevant facts which the party contends are necessary to determine the application for review, in chronological order; and
(b)refer to other material before the Tribunal which, the party states, supports the relevant facts.
Clause 7.3 says that the part entitled ‘Issues’ should refer to the issues which, in that party’s opinion, are necessary for the tribunal to determine.
Clause 7.5 says that the part entitled ‘Contentions:
(a)should explain the conclusions that the party argues the Tribunal should make, and why those conclusions should be made;
(b)may refer to facts which are disputed and explain why one version of events should be accepted and not another;
(c)should refer to cases and legislation when appropriate; and
(d)should set out the type of decision under section 105 of the Act that the party argues the Tribunal should make.
Flick J in Comcare v Davies[51] said in relation to a Statement of Facts, Issues and Contentions lodged with the Tribunal:
A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. Nor should a Statement of Facts and Contentions be filed with such generality that all issues which potentially may emerge will be held subsequently to fall within one or other of the matters set forth. But it should be drafted with a sufficient level of precision to enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration. The procedures of the Tribunal are sufficiently flexible to permit of any subsequent need to revisit a Statement which has been filed if that is necessary to ensure that the “correct or preferable decision” is reached and reached in a manner which permits all parties to have a “reasonable opportunity to present his or her case”: Administrative Appeals Tribunal Act 1975 (Cth), s 39(1). Within those broad limits, the procedures followed by the Tribunal should be sufficiently flexible to permit new or additional contentions to be raised, where that is necessary to ensure that the Tribunal properly discharges its functions, and sufficiently flexible to ensure that contentions which may have been initially raised at the outset of proceedings are able to be later abandoned (eg, Comcare v Holt [2007] FCA 405 at [33], 94 ALD 576 at 583 per Mansfield J).
[51] [2008] FCA 393 at [22].
Because a Statement of Facts, Issues and Contentions and a pleading have similar roles, the approach that the courts have taken in relation to pleadings and the Harman undertaking is instructive when considering whether the implied undertaking applies to a Statement of Facts, Issues and Contentions lodged in the Tribunal.
Clause 6.21 of the PD incorporates the Harman undertaking and applies it to the Tribunal. This is consistent with the finding by Sundberg J in Otter Gold Mines Ltd v McDonald[52] that the Harman undertaking extends to proceedings in the Tribunal in so far as documents are produced under compulsion. However, Sundberg J was considering only whether the Harman undertaking applies to documents produced to the Tribunal under a summons which is a procedure that is very similar to the production of documents under a subpoena in the courts. It would be wrong to simply apply the approach that the courts have taken to the Harman undertaking without considering that the Tribunal is not a court. For example, Flick J in Rand v Comcare[53] warned against attempting to transpose the common law concept of ‘pleadings’ to the procedures employed by the Tribunal in all its decision-making functions. Flick J said:
[23] The task of that Tribunal in those circumstances where jurisdiction has been conferred upon it, in contrast to superior courts of record, is to reach the “correct or preferable decision”: Administrative Appeals Tribunal Act 19745 s 43 (Cth). Within that fundamental constraint, the procedure of the Tribunal is “within the discretion of the Tribunal” (s 33(1)(a)) and the Tribunal is further directed that its proceedings are to be “conducted with as little formality and technicality, and with as much expedition as … a proper consideration of the matter before the Tribunal permit“ (s 33(1)(b)).
[24] In reaching the “correct or preferable” decision, prescriptive analogies with the procedures followed by superior courts of record have — as a general proposition — been shunned. With particular reference to the submission advanced on behalf of Comcare in the present proceeding, the Tribunal is not constrained by the common law rules of “pleadings”. …
… The task entrusted to the Tribunal and the manner in which it proceeds stand in stark contrast to the task entrusted to a superior court of record to resolve a dispute between the parties “in accordance with law” and, in a largely adversarial context, where the material facts relied upon by a plaintiff are pleaded in a statement of claim and where the response of the defendant is crystallised by the filing of a defence. In further contrast to that approach, the Tribunal is not bound by the rules of evidence and is expressly given the power to “inform itself on any matter in such manner as it thinks appropriate”: s 33(1)(c). The manner in which the Tribunal proceeds in any given case will obviously depend upon the facts and circumstances of each individual case and the statutory context conferring jurisdiction upon the Tribunal.
[52] (1997) 76 FCR 467 at 472-3.
[53] [2014] FCA 584.

However, Flick J did recognise that some analogies with common law procedure may inform the manner in which the Tribunal proceeds:[54]
[26] To universally confine the Administrative Appeals Tribunal to a resolution of the “correct or preferable decision” by reference to pleadings would be (inter alia) inconsistent with the powers vested in that Tribunal by, in particular, s 33(1).
[27] But the facts and legal issues to be considered by the Administrative Appeals Tribunal are not “at large”. The parties themselves may identify those issues which are considered to be relevant to the claims being advanced and resisted. And the Tribunal itself may “require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing”: s 33(2A)(c). There also remains the requirement that a party to a proceeding be given a “reasonable opportunity” to advance his or her case: s 39. Some clarification of facts and legal issues may be necessary to ensure that a party is afforded that opportunity: cf Fletcher v Cmr of Taxation (Cth) (1988) 19 FCR 442 at 454–457.
[28] Analogies with common law procedures (or guidance from the principles which underpin those procedures) may, on occasions, inform the manner in which the Tribunal may proceed in a particular case. Although an administrative tribunal may not be bound by the common law rules of evidence, it has (for example) been recognised that there is a “danger of injustice” if those rules are “ignored as of no account”: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. So, too, may the concept of “pleadings” inform the manner in which the Administrative Appeals Tribunal may proceed in a particular case or inform the Tribunal as to the issues in need of resolution. It is the unquestioning attempt to transpose common law rules of procedure or evidence which is to be resisted.
[54] Ibid.
Flick J was referring to provisions in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) but the effect of those provisions remain under the ART Act.[55]
[55] See ART Act ss 49, 50, 52, 55 and 79.
Many of the cases that have considered the application of the Harman undertaking have involved a party seeking to use evidence, such as a document or an affidavit, from one proceeding in another separate proceeding, but the undertaking is not confined to that situation. In this case, the Applicant does not want to use the documents in other proceedings but rather wants to be able to refer to them publicly. In fact, he has already done so. If the Harman undertaking applies, this use by the Applicant would clearly be a use for a purpose other than the purpose for which the documents were given to the Tribunal.
As previously stated in these reasons, counsel for the Respondent indicated that the Respondent is not seeking a declaration that the Applicant has committed an offence by disclosing the material but instead the Respondent (together with the Applicant) considers this is an appropriate vehicle for the Tribunal to make a ruling as to whether the Harman undertaking applies to a Statement of Facts, Issues and Contentions.
The question in this case for the Tribunal is whether there is an implied undertaking given to the Tribunal that the Applicant will not use the Respondent’s SOFIC for any purpose other than for the purpose for which it was given to the Tribunal. If the answer to that question is ‘yes’ then the Applicant has breached that undertaking by publishing an extract from the SOFIC in the media. To answer the question, one must consider the terms of the PD which deal with the implied undertaking at clauses 6.21 to 6.27. Those clauses would be construed in the context of Part 6 of the PD which is entitled ‘Evidence’.
Clause 6.21 of the PD states the implied undertaking in terms consistent with its expression by the High Court in Hearne.[56] The incorporation of the common law principle into the PD means that reference to case law is appropriate when one is seeking to construe the meaning of the PD.
[56] Hearne (n 39).
Clause 6.22 sets out the documents to which the implied undertaking applies. The list of documents is not expressed in exhaustive terms and is consistent with the examples of documents referred to by the High Court in Hearne. The list includes some of the examples given by the High Court, namely witness statements and expert reports,[57] documents inspected after discovery and documents produced on subpoena.[58]
[57] Ibid at 131 [5] (Gleeson CJ).
[58] Ibid 154–5 [96].
There are three categories of documents to which the implied undertaking expressly applies pursuant to clause 6.22. The first category in clause 6.22(a) is those documents (referred to as the T-documents) produced under ss 23 and 25 of the ART Act which require the Respondent as the original decision-maker to give to the Tribunal all documents in its possession relevant to the Tribunal’s review of the decision. The second category in clause 6.22(b) is those documents lodged pursuant to a Tribunal direction (including expert reports or witness statements). The third category in clause 6.22(c) is documents produced in response to a summons that may have been issued by the Tribunal.
I note that these three categories of documents comprise the documents that would potentially be received into evidence by the Tribunal at the review hearing. The effect of clause 6.22 is that the implied undertaking applies to them all.
The Harman undertaking only applies to documents provided under compulsion by discovery or some other Court rule or order as opposed to a document the subject of a timetabling direction.[59] Whilst noting that there is no discovery in proceedings before the Tribunal, there is an element of compulsion arising from the ART Act in relation to the production of T-documents (clause 6.22(a) which refers to documents that must be produced under ss 23 and 25 of the ART Act) and summons documents (clause 6.22(c) which refers to documents that must be produced under s 74(1)(b) of the ART Act).
[59] Helicopter (n 43).
The Respondent contends that the implied undertaking applies to its SOFIC because subclause 6.22(b) refers to documents lodged pursuant to a direction given by the Tribunal. The SOFIC was lodged pursuant to the direction made on 19 November 2024 and therefore the Respondent contends that it is covered by the implied undertaking. The Respondent contends that any documents lodged pursuant to a Tribunal direction would be covered by subclause 6.22(b) which should be given its plain meaning and should not be read down unless there is good reason to do so.
The Applicant contends that the implied undertaking does not apply to a SOFIC because it is in the nature of a pleading or submission, as opposed to evidence.
Clause 6.22(b) could potentially be read as broadening the application of the implied undertaking irrespective of whether those documents (which were lodged pursuant to a Tribunal direction) were provided under compulsion (in the sense of the authorities which have found that timetabling directions are not the equivalent of an order for compulsion). In so far as clause 6.22(b) broadens the traditional scope of the Harman undertaking, it should be limited to documents in the nature of those expressly referred to, namely expert reports and witness statements.
In my view the reference to documents in subclause 6.22(b) is a reference to documents, lodged pursuant to a direction, that may be received into evidence (including expert reports and witness statements). This interpretation of document is appropriate on a contextual approach because Part 6 is entitled ‘Evidence’ and the references to documents therein are references to documents that are or may be submitted as evidence. In R v Jacobs Group (Australia) Pty Ltd[60] the High Court (Kiefel CJ, Gageler, Gordon, Steward, Gleeson and Jagot JJ) said:
... a construction of a provision that it is consistent with the language and purpose of all the provisions of the statute is ordinarily one in which the same meaning is given to the 'same words appearing in different parts of a statute'. At the least, it is accepted that there needs to be a reason not to give the same words in the same statute the same meaning.
[60] [2023] HCA 23 at [25].
The word ‘documents’ should be given the same meaning within the provisions of Part 6 that deal with the implied undertaking. This is apparent from a reading of the carve out from the undertaking in subclause 6.21(a) which applies where a document is received in evidence. That carve out would make no sense if the undertaking could apply to a SOFIC which is not received as evidence because it is in the nature of a pleading or a submission.
Further, the PD deals with Statements of Facts, Issues and Contentions in a separate part, namely Part 7. If it was intended that a SOFIC lodged pursuant to a direction would be covered by the implied undertaking, then one would have expected it to be expressly included in subclause 6.22(b) along with the express reference to expert reports and witness statements. This is especially so, given that a breach of the implied undertaking may have serious legal consequences.[61] A wider interpretation of ‘documents’ in clause 6.22 of the PD would potentially visit those serious consequences upon a party despite clause 6.22(b) not expressly applying the implied undertaking to a SOFIC.
[61] Administrative Review Tribunal (Common Procedures) Practice Direction 2024 cl 6.23.
My view is also consistent with the common law relating to the Harman undertaking. Pleadings are not covered by the Harman undertaking[62] and, by analogy, one would not expect a SOFIC to be covered. Submissions do not come within the categories of documents to which the Harman undertaking applies. As held in Canterbury-Bankstown Council, 'the implied undertaking does not apply to all documents brought into existence for the purposes of litigation’.[63] Section 79 read together with the general principles of Tribunal procedure in subdivision A of Division 5 of Part 4 of the ART Act, gives the Tribunal a very wide discretion to give directions with respect to the lodgement of documents. The implied undertaking should not apply to all documents lodged pursuant to such directions which may include a broad range of documents such as ‘a statement of matters or contentions on which the party intends to rely’ under s 79(2)(b).
[62] Canterbury-Bankstown Council (n 50) [126]; Helicopter (n 43) [35].
[63] Canterbury-Bankstown Council (n 50) [128].
The SOFIC is lodged with the Tribunal and, whilst it is not publicly disclosed, it is made available to the other side. A non-party seeking access to a document in a review must submit a ‘Request by a non-party to access documents’ form. Whether access is granted would be at the discretion of the Tribunal, but there is no prohibition on a third-party gaining access to a SOFIC. Tribunal hearings are in public.[64] Further, if a party filing a SOFIC wanted to restrict further publication of it by the other side, then a confidentiality order could be sought over all or part of the SOFIC.
[64] ART Act s 69.
My view that the implied undertaking does not apply to a SOFIC assumes that the Statement of Facts, Issues and Contentions is in the form prescribed by Part 7 of the PD. Of course, this will not always be the case. A person who is legally trained should appreciate the difference between, on the one hand, setting out the relevant facts and, on the other, setting out the evidence. In a court setting, it is often said that one pleads the material facts and not the evidence. However, it may be that a party sets out evidence in their SOFIC by quoting from an affidavit or witness statement or annexing documents which will be tendered as evidence at the hearing. In Jones v Treasury Wine Estates Limited (No 4),[65] it was accepted that the Harman undertaking applies not only to the documents themselves but also to information derived from those documents.
[65] [2020] FCA 1131 at [67]. This proposition was accepted on appeal in Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226 at [83(3)].
It follows that one should not apply an absolute rule that the implied undertaking does not apply to Statement of Facts, Issues and Contentions, in whatever form it is provided. This was recognised by the Applicant who accepted quite properly that if part of a Statement of Facts, Issues and Contentions contains information from a document to which the implied undertaking would apply, then that part would be covered by the implied undertaking and should not be used for another purpose.
In this case, the Applicant quoted a contention from the Respondent’s SOFIC. He did not quote from the Kelton affidavits. The document used by the Applicant was the SOFIC. The implied undertaking applied to the Kelton affidavits but not to contentions or submissions in the SOFIC. It follows that the Applicant’s conduct in quoting from the Respondent’s SOFIC was not a breach of the implied undertaking.
I should also state as an aside that I do not express a view one way or the other as to whether as a matter of policy a Statement of Facts, Issues and Contentions should be subject to the implied undertaking in clauses 6.21 and 6.22 of the PD. My view is that the correct construction of the PD is that the implied undertaking does not apply to a Statement of Facts, Issues and Contentions, but it would be a matter for the Tribunal and the President (assuming that I am not wrong) to amend the PD so as to include an express reference to Statements of Facts, Issues and Contentions if, as a matter of policy, it was considered appropriate to do so.
Decision of the Tribunal
I have found that the Applicant has not breached the implied undertaking as set out in clause 6.21 of the PD in disclosing part of the Respondent’s SOFIC.

106. I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

...........[sgd].............................................................
Associate
Dated: 28 March 2025

Date(s) of hearing: 3 and 4 March 2025

Applicant’s Representative:
Self-represented

Respondent’s Representative: Mr Justin Davidson (Australian Government Solicitor)

Date(s) of hearing:	3 and 4 March 2025
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Mr Justin Davidson (Australian Government Solicitor)