Patrick and Secretary, Department of Industry, Science and Resources (Freedom of information) - [2024] AATA 2689

Patrick and Secretary, Department of Industry, Science and Resources (Freedom of information) [2024] AATA 2689 (31 July 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2023/1812
Re:Rex Patrick
APPLICANT

AndSecretary, Department of Industry, Science and Resources
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:31 July 2024
Place:Adelaide

The Tribunal sets aside the decision under review made by the Department of Industry, Science and Resources dated 14 July 2022 (as later altered) and substitutes a decision that:
(a)the passages of the documents listed in paragraphs 35, 36, 44 and 55 of the affidavit of Mr Hauck together with the sixth sentence of the third paragraph of page 25 of Document 3 and the fourth paragraph of page 27 of Document 3 (including the footnote) are exempt pursuant to s 33(a)(iii) of the FOI Act;
(b)the passages of the documents listed in paragraph 37 of the affidavit of Mr Jeremenko are exempt pursuant to s 42(1) of the FOI Act;
(c)the part of the sentence after the comma in paragraph 2(c) of Document 1 is not exempt from disclosure pursuant to s 45;
(d)the passages of Document 3 listed in paragraph 9 of the affidavit of Mr Jeremenko are exempt from disclosure pursuant to s 45;
(e)the passages of the documents listed in paragraphs 11, 12 and 13 of the affidavit of Mr Jeremenko are not conditionally exempt pursuant to s 47B; and
(f)the passages of the documents listed in paragraphs 14 to 24 of the affidavit of Mr Jeremenko are conditionally exempt pursuant to s 47C but access should be given to the applicant pursuant to s 11A(5) because access to this material would not be contrary to the public interest.

.................................[sgd].......................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision of Department of Industry, Science and Resources with respect to documents relating to a gas reservation scheme – respondent contends that material in the documents in issue is exempt from disclosure under various provisions of the FOI Act relating to international relations (s 33(a)(iii)), legal professional privilege (s 42) and material obtained in confidence (s 45), together with conditional exemptions for Commonwealth-State relations (s 47B) and deliberative processes (s 47C) – consideration of whether there was sufficient evidence to establish that information received by the Commonwealth was confidential and that it was received in confidence for the purposes of s 45 and s 47B of the FOI Act – public interest test with respect to deliberative material found to favour access – decision under review set aside
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Ammon v Consolidated Minerals Ltd[No 3] [2007] WASC 232
Arnold v Queensland (1987) 73 ALR 607
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434
Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962
Fernandes v National Archives [2014] AATA 180
Fountain v Alexander (1982) 150 CLR 615
Grant v Downs (1976) 135 CLR 674
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645, 661
MacTiernan and Secretary, Department of Infrastructure and Regional Development [2016] AATA 506
Moorgate Tobacco Co Ltd v Philip Morris Ltd(No. 2) (1984) 156 CLR 414
New South Wales v Ryan (1998) 101 LGERA 246
Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281
Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719
Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301
Smith Kline & French Laboratories (Aust) Ltd (1990) 22 FCR 73
Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission [1997] AATA 205
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
Secondary Materials
Explanatory Memorandum, Freedom of Information Amendment Bill 1991 (Cth)
Heydon J D, Cross on Evidence (8th ed, LexisNexis Butterworths, 2009)
Heydon J D, Leeming M J and Turner P G, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2014)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)
REASONS FOR DECISION
Deputy President Britten-Jones
31 July 2024

This is an application for review of a decision made by the respondent’s delegate to not provide full access to the applicant to certain documents requested pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act).[1] The respondent contends that material in the documents in issue is exempt from disclosure under various provisions of the FOI Act relating to international relations (s 33(a)(iii)), legal professional privilege (s 42) and material obtained in confidence (s 45), together with conditional exemptions for Commonwealth-State relations (s 47B) and deliberative processes (s 47C).
[1] All references to legislation are to the FOI Act unless otherwise specified.
The Information in Question
The applicant sought access to “any final briefings or minutes … that flowed from the consultation on the gas reservation scheme” mentioned in a media release from the respondent.
The Issue
There are three documents in issue. Document 1 is a three page ministerial submission which has been partially released. The claims for exemption of Document 1 are made under ss 33(a)(iii), 45, 47B and 47C. Document 2 is a draft letter to the Prime Minister claimed to be wholly exempt from disclosure under s 47C. Document 3 is a 40 page paper prepared by the Commonwealth Department of Industry, Science and Resources (the Department) entitled “Options for a prospective national gas reservation scheme” (the Department’s Options Paper). It has been partially released to the applicant. The claims for exemption of Document 3 are made under ss 33(a)(iii), 42, 45, 47B and 47C. The applicant no longer pursues his application with respect to information claimed to be exempt under s 47F.
Background
In August 2019, the Commonwealth government announced it would consider options for a prospective national gas reservation scheme to deliver affordable, reliable gas. In October 2020, the Department released a gas reservation issues paper (the Department’s Issues Paper) which noted that the Commonwealth Government is committed to exploring options for a prospective gas reservation scheme to ensure Australian gas users get the energy they need at a reasonable price. The Department’s Issues Paper provided a list of questions for stakeholders and said that public submissions are encouraged and that confidential submissions will also be accepted and treated accordingly. Over 40 submissions were received from stakeholders, including from gas producers and gas users. Some of the responses were expressly made in confidence. The applicant tendered and relied upon submissions of stakeholders who responded on an open basis, including the Government of Western Australia. The Northern Territory and some state governments (together referred to as the States[2]) made submissions through personal consultations with the Department. Having received and collated responses to the Department’s Issues Paper, the Department’s Options Paper was prepared in October 2021. The Department’s Options Paper included chapters on gas reservation in Australia and in other countries. The Department said that the Department’s Options Paper was not suitable for publication because it contains legal advice and analysis which may raise diplomatic sensitivities.[3]
[2] Not including Western Australia.
[3] Ministerial Submission Coversheet (Document 1) at paragraph 4(a).
In November 2021, the Department made its submission to the Minister for Resources and Water on the options for a prospective national gas reservation scheme. The Department noted that gas producers argued a national reservation scheme would discourage investment and that gas users argued a national reservation scheme would contribute to the goals of the gas-fired recovery. The ministerial submission (Document 1) attached the draft letter to the Prime Minister (Document 2) and the Department’s Options Paper (Document 3). The documents in issue are marked “Protected: Cabinet” but that is not determinative of whether they should be released or not.
Evidence from Mr Jeremenko
Mr Robert Jeremenko provided an affidavit[4] with some redactions dated 10 November 2003. He is Head of the Oil and Gas Division in the Department, a role he has held since February 2023. Prior to commencing at the Department he was a senior executive officer at the Department of Treasury. He confirmed under cross examination that he was not at the Department in 2021 and that he had nothing to do with the generation of those documents in 2021.[5] David Lawrence from the Department was named as the clearance officer in Document.
[4] Mr Jeremenko’s open affidavit with redactions made pursuant to a confidentiality order was exhibit 3A. His closed affidavit was exhibit 3B.
[5] Transcript of Proceedings, p 154 (‘Transcript’).
Mr Jeremenko gave evidence that the information provided by the States in their consultation with the Department was confidential and was received with a mutual understanding of confidence. This evidence is critical to the determination of part of this application so I will consider it first in a general way before considering it in relation to each of the separate provisions of the FOI Act.
Mr Jeremenko was cross examined about this evidence. He said that he did not consult with the Victorian government about the FOI claim being made in these proceedings[6] and that he did not discuss with any of the States whether or not they considered their position on the gas reservation policy to be confidential.[7] He explained, based on the contents of the redacted material and his discussions with Mr Lawrence (who was at the Department at the relevant time in 2021 and who remains there), that the discussions between the Commonwealth and the States were held in confidence and that the redacted material itself should be confidential.[8]
[6] Transcript, p 164 line 44.
[7] Transcript, p 167 lines 27-31.
[8] Transcript, p 167 lines 36-37 and line 45.
Mr Patrick, who represented himself, asked Mr Jeremenko how he came to the conclusion that the State governments’ position on a gas reservation policy would be considered confidential by those governments. Mr Jeremenko said that as a matter of course discussions on policy between the Commonwealth and state governments or the private sector are entered into and conducted on a mutual understanding of confidence.[9] In giving that evidence, Mr Jeremenko was not giving direct evidence as to the circumstances of the discussions between the States and the Commonwealth because he was not there. However, some weight should be given to his evidence because it is based upon his experience as to usual practice. This evidence as to usual practice establishes a probability that the usual practice will be followed in the particular case[10] but it is not determinative of the issue.
[9] Transcript, p 165.
[10] See Heydon J D, Cross on Evidence (8^th ed, LexisNexis Butterworths, 2009), at [1130] and the sentence that was approved in Elliott v R (2007) 239 ALR 651 at [28].
Further, it was recognised in Re Maher and Attorney-General’s Department[11] (Re Maher) that information may be received in confidence and that that confidence may be protected whether or not there be a contractual term as to confidentiality. Relevant to this case and apposite to the claims under s 45 and s 47B, Davies J said:
Sections 33(1)(b) and 45 (the general confidentiality exemption) of the FOI Act are concerned not only with communications which would be protected by courts under the common law principles with respect to express or implied obligations of confidence or by courts of equity with respect to communications made under special relationships but also with information that was communicated to an agency in confidence, that is to say, information that was communicated and received under an express or inferred understanding that the communication would be kept confidential.
[11] (1985) 7 ALD 731.
The evidence from Mr Jeremenko that discussions between the States and Commonwealth governments on policy issues are conducted with a mutual understanding of confidence is consistent with the decision in Re Maher but any inference as to confidentiality can be rebutted by consideration of the particular circumstances. The documentary evidence establishes that stakeholders (both government and private) were given an opportunity to provide submissions and could do so publicly or on a confidential basis. The dealings between the Commonwealth and the States arose in response to the Department’s Issues Paper which confirmed the Commonwealth government’s announcement that it would consider options for a prospective national gas reservation scheme. Public submissions from stakeholders were encouraged, but it was stated that confidential submissions would also be accepted and treated accordingly.[12] The Western Australian government adopted the process provided for in the Department’s Issue Paper and made a public submission. The other States did not adopt the process provided for in the Department’s Issues Paper but instead wrote to the Commonwealth and set up discussions and then consulted in person.[13] There is no evidence of the content of those discussions except for what is recorded in Document 1. More particularly, there is no evidence that either party requested or stated that the discussions were confidential. Mr Jeremenko was not at the Department at the time and he has not seen all the letters which arranged the consultation between the States and the Commonwealth, but he was aware that they did not mention confidential discussions because “There was no need to”.[14] Further, he was able to assume that there was no offer of confidentiality in those letters.[15]
[12] The Department’s Issues Paper dated October 2020 at page 4.
[13] Transcript, p 171.
[14] Transcript, p 171 line 29.
[15] Transcript, p 171 line 36.
Mr Jeremenko’s assumption that there was no need to mention confidentiality does not take into account that these discussions were held in response to the Department’s Issues Paper which expressly encouraged public submissions. In these circumstances and those mentioned below, and absent any evidence to the contrary, it is reasonable to infer that the discussions were not held on a confidential basis and that, if the States wanted confidentiality, they would have requested it in accordance with the process stipulated in the Department’s Issues Paper.
Further, the Department’s Options Paper (Document 3) includes information relevant to Queensland, Northern Territory, Victoria and New South Wales[16] and over which there is no claim of confidentiality.[17] It can be assumed that this information with respect to the States was either publicly known or was derived from the consultations between the Department and the States. There is nothing in the Department’s Options Paper which suggests that the submissions received from the States were received on a confidential basis. This can be contrasted with the express recording of confidentiality in the Department’s Options Paper with respect to some third party submissions which had been submitted to the Department in confidence (for which there is a s 45 claim). The lack of confidentiality is also supported by a reading of paragraph 2 of the key points set out in the ministerial submission (Document 1) which records that the Department “sought public comment on an issues paper” [18] and then summarises comments received from gas producers, gas users and the states and territories. The ministerial submission at paragraph 4(a) also states that the Department’s Options Paper is not suitable for publication because “It contains legal advice and analysis which may raise diplomatic sensitivities” but there is no mention that it contains sensitive or confidential information from the States.
[16] Pages 14 to 16 of Document 3.
[17] The respondent has not made a s 45 or s 47B claim with respect to any of this information.
[18] Emphasis added.
Finally with respect to this general consideration of the evidence relevant to confidentiality, I note that the respondent did not call any witness who could give contemporaneous evidence as to the dealings between the Commonwealth and the States in response to the Department’s Issues Paper in 2020 and thereafter. I consider that the evidence from the respondent is lacking as to whether the information in question has the necessary quality of confidence and whether the information was communicated on a mutual understanding of confidence. In Patrick and Secretary, Department of Prime Minister and Cabinet,[19] White J commented on the absence of primary evidence to support the respondent’s claim and said:
It is unfortunate that the evidence which the parties and, in particular the respondent, have provided as to the establishment of the National Cabinet is secondary in nature, when primary evidence must be available. In many respects, a claim that a document is exempt from access under the FOI Act is similar to a claim that a document should not be produced on discovery, or adduced into evidence, on the grounds of public interest immunity, whether at common law or pursuant to s 130 of the Evidence Act 1995 (Cth). The authorities with respect to such claims have emphasised the need for proper supporting evidence. By way of example, in State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553 at [68], the Court of Appeal in Victoria said:
... The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.
[19] [2021] AATA 2719 at [84].
Mr Lawrence received the responding submissions at the Department in late 2020. He was then involved in preparing the ministerial submission in November 2021. He, or some other Department officer, could have given evidence about the dealings between the States and the Commonwealth governments but instead the respondent gave evidence through Mr Jeremenko who was not at the Department at the relevant time. I make no inference from this failure to call Mr Lawrence, but I raise it because the respondent bears the onus in this case and if the respondent does not call evidence necessary to establish its case, then the onus will not have been satisfied.
Further, the respondent did not either consult with the States or call any evidence from the States as to whether the States’ information was confidential in nature and whether the information provided by the states was provided on a mutual understanding of confidentiality. Again, this is relevant to the respondent’s onus.
Section 45 – Documents containing material obtained in confidence
Section 45(1) provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
Section 45 requires consideration of a hypothetical cause of action. A document will only be exempt if its disclosure would found an action for breach of confidence. In Commonwealth v John Fairfax & Sons Ltd,[20] Mason J said at 51 that in order to found such an action:
… the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be “an unauthorized use of that information to the detriment of the party communicating it”
[20] (1980) 147 CLR 39.

The most well-known authority with respect to breach of confidence in the context of the FOI Act is Corrs Pavey Whiting & Byrne v Collector of Customs(Vic)[21] (Corrs Pavey). The dissenting judgment of Gummow J has been accepted as the law with respect to breach of confidence and forms the basis of the FOI Guidelines[22] at [5.159] which set out the five criteria which must be satisfied to found an action for breach of confidence. In the Corrs Pavey decision, the obligation of confidence did not arise from a contract but rather from the circumstances of the provision of information to the Australian Customs Service which gave rise to an equitable duty of confidence. Gummow J confirmed that it was not a case of breach of contract and set out the four (and possibly five) criteria that must be satisfied to make out a case for protection of confidential information in equity at page 443:
As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information: … . It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. This last aspect may be put to one side in the present case, because the use to which Syntex would put the information would plainly be detrimental to Alphapharm.
[21] [1987] FCA 266; (1987) 14 FCR 434.
[22] The Office of the Australian Information Commissioner has issued Guidelines under s 93A which requires the Tribunal to have regard to the Guidelines in making its decision (‘FOI Guidelines’). Further versions of Part 5 and Part 6 of the FOI Guidelines were issued in May 2024 but the relevant paragraphs are not materially different to the versions referred to by the parties and to which I refer in these reasons.
Following on from the dissent of Gummow J in Corrs Pavey, s 45 was amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence.[23]
[23] Explanatory Memorandum, Freedom of Information Amendment Bill 1991 (Cth).
With respect to a breach of confidence, the FOI Guidelines say:
5.158. A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.
5.159. To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information:
• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of confidence
• it must have been disclosed or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.
Section 45 imports the general law action for breach of confidence and thereby establishes a test for an exempt document if its disclosure would found such a cause of action.
In the case before the Tribunal, the hypothetical action would be a claim in equity against the Commonwealth (as the recipient of allegedly confidential information) by one or more of the States or by a third-party company (seeking to protect their allegedly confidential information). Relevant to the State actions, Mason J in the Fairfax case[24] makes it clear that the right to protect property in equity is available to the government.[25] As to the element of detriment in an action by government, Mason J said that the court will determine the government's claim to confidentiality by reference to the public interest:[26]
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.
[24] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 (‘Fairfax case’).
[25] I note that the Fairfax case did not consider a potential cause of action by a state or territory government against the Commonwealth government which I consider later in these reasons.
[26] Fairfax case (n 24) at 52.
In Corrs Pavey, Gummow J confirmed the relevance of the public interest in actions by the government:
I do not mean to suggest that questions of public interest do not impinge at all upon the law respecting breaches of confidence. First, as to suits by government to restrain disclosure of secrets emanating from within government, Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, establishes that whereas a private litigant may demonstrate the detriment he apprehends by reference to his personal position, a government does so by showing that the public interest it represents favours restraint rather than disclosure.[27]
[27] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 455.
The applicant contends that a court of equity cannot grant relief in a matter between the Commonwealth government and a state or territory government. I see no reason to read down the application of s 45 so that it does not apply to a breach of confidence by the Commonwealth in relation to information provided by a state or territory government. In Corrs Pavey, Gummow J criticises[28] the making of an assumption that confidences within government were beyond the scope of the equitable doctrine. The same would apply to confidences between the Commonwealth and a state government. Commonwealth and state governments and their respective agencies often enter into commercial dealings and there is no reason why those dealings could not attract equitable relief.
[28] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 448-449.
The material which is claimed by the respondent to have been obtained in confidence can be put into two categories:
(a)Information from the States; and
(b)Information from third party companies.
Information from the States
With respect to the information from the States, Mr Jeremenko identifies the information in the final 11 words of paragraph 2(c) of Document 1 which conveys the submissions received by the respondent from the States. In response to a question from Mr Patrick, Mr Jeremenko accepted that the redacted passage at paragraph 2(c) would disclose the States’ positions, individually or collectively, as to a gas reservation policy.[29]
[29] Transcript, p 161 lines 14–16.
In support of the claim that the disclosure of this information would found an action for breach of confidence, Mr Jeremenko deposes as follows:
[7] … All of the states’ and territories’ responses, except that of the government of Western Australia, were communicated to the Department with the mutual understanding and with the expectation of confidentiality. I consider that the release of the information in this sentence would disclose information obtained in conference in a manner inconsistent with its intended use. Its disclosure would cause detriment because it would disclose the internal deliberations of the states and their confidential discussions with the Commonwealth and hinder the ability of the states to undertake confidential internal deliberations and engage in confidential discussions with the Commonwealth in relation to sensitive policy issues in the future.
As set out in paragraphs 8 and 9 of these reasons, Mr Jeremenko was cross examined about this evidence. I concluded in paragraphs 11 to 16 of these reasons that the evidence from the respondent is lacking as to whether the information in question has the necessary quality of confidence and whether the information was communicated on a mutual understanding of confidence. The Tribunal has heard no evidence from the States or from the relevant person from the Department (namely, Mr Lawrence).
The result is a complete lack of evidence relating to the States’ information which is critical to establishing the criteria in dispute for the action for a breach of confidence, namely as to whether the information:
(a)has the necessary quality of confidentiality;
(b)was communicated and received on the basis of a mutual understanding of confidence;
(c)has been authorised to be disclosed; and
(d)if disclosed, will cause detriment.
Under s 61(b) of the FOI Act the respondent has the onus of establishing that its decision was justified or that the Tribunal should give a decision adverse to the applicant. If the evidence before the Tribunal is not sufficient to found an action for breach of confidence then the respondent will not have satisfied the onus. That does not mean that the respondent would have to prove that it will be successful in such an action. Section 45 only requires evidence to support a finding that the disclosure of the document would found an action for breach of confidence. In Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission,[30] the Tribunal considered what it means to found an action for breach of confidence and concluded at [62] with respect to s 45 as follows:
The terms of the section do not require an agency to consider the likelihood that an action will be commenced against them, the merits of the action, defences to the action or the outcome of the action. Such requirements would place far too onerous a burden on an agency. The section only requires the agency to consider whether disclosure would found an action for breach of confidence.
[30] [1997] AATA 205.
Despite the lack of evidence called by the respondent, there is documentary evidence set out above in paragraphs 12 and 13 of these reasons which suggest that the information from the States was not confidential and that it was not received in confidence.
I turn now to the five criteria as they apply to the information from the States.
Can the information be identified with specificity?
The information in question is set out in paragraph 2(c) of Document 1 and has therefore been identified with specificity. This is not in dispute.
Does the information have the necessary quality of confidence?
Paragraphs 7 to 16 of these reasons are relevant to this issue but I will not repeat them. As I have found, there is very little evidence as to whether the information in paragraph 2(c) of Document 1 (which relates to a State’s position as to a gas reservation policy)[31] has the necessary quality of confidence. The evidence from Mr Jeremenko in paragraph 7 of his affidavit goes to whether the information was communicated with a mutual understanding of confidence which is a different issue. His evidence in paragraph 10 of his affidavit that the submissions are not publicly available is not relevant because it relates to the submissions from third party companies and not the States.
[31] Transcript, p 161 lines 14-16.
There is no direct evidence one way or the other as to whether the States have made public their positions as to a gas reservation policy. There is no direct or indirect evidence from the States as to whether they consider their information has a quality of confidence.
The topic was raised squarely with Mr Jeremenko in cross examination and the effect of his response was that it is apparent from “the content of the advice that has been redacted” and his discussions with Mr Lawrence that the information has the necessary quality of confidence.[32] He did not provide any detail as to the content of his discussions with Mr Lawrence. The redactions (ie the closed evidence) in Mr Jeremenko’s affidavit did not deal with this issue.
[32] See generally, transcript p 167 line 6 to p 169 line 3 and more particularly, p 167 lines 12–17 and p 168 lines 15-26.
I have read the redacted part of paragraph 2(c) of Document 1 and I am not satisfied in the context of all available evidence that what was written has the necessary quality of confidence. I am not able to infer from what was written that it was confidential or not. However, there is documentary evidence set out above in paragraphs 12 and 13 of these reasons which suggest that the information from the States was not confidential and that it was not received in confidence.
I conclude that there is insufficient evidence before the Tribunal to establish that the information in the redacted sentence of paragraph 2(c) had the necessary quality of confidence. The respondent has failed to satisfy this criterion.
Has the information been communicated and received on a mutual understanding of confidence?
Paragraphs 7 to 16 of these reasons are relevant to this issue but I will not repeat them. As I have found, there is no direct evidence from a state or Commonwealth witness as to the circumstances in which the relevant information was communicated and received. Mr Jeremenko, who was not at the Department at the relevant time, gave evidence of the usual practice of a mutual understanding of confidence between a state or territory and the Commonwealth in discussions on policy. This evidence of usual practice or any inference of confidentiality arising from the relationship between the States and the Commonwealth must be considered in the context of the actual evidence about the relevant dealings between the States and the Commonwealth in relation to a gas reservation policy.
The context of the dealings between the Commonwealth and the States was the Department’s Issues Paper which encouraged public submissions from stakeholders.[33] The Department’s Options Paper recorded information from the States relevant to a prospective national gas reservation scheme. There is nothing in the Department’s Options Paper which suggests that the submissions received from the States were received on a confidential basis. This can be contrasted with the express recording of confidentiality in the Department’s Options Paper with respect to some third party submissions which had been submitted to the Department in confidence (for which there is a s 45 claim). Further, there is documentary evidence set out above in paragraph 13 of these reasons which suggest that the information from the States was not confidential and that it was not received in confidence.
[33] See further at paragraph 12 of these reasons.
I conclude that there is insufficient evidence before the Tribunal to establish that the information in the redacted sentence of paragraph 2(c) was communicated and received on a mutual understanding of confidence. The respondent has failed to satisfy this criterion.
Is disclosure threatened without authority?
There is no evidence from the States that disclosure of their information would be unauthorised. Mr Jeremenko confirmed that the Department has had no contact with the States. There was nothing preventing the Department from adducing evidence from the States as to the confidentiality of their information and as to whether they authorised its release. Indeed, it is not unusual for a party who is concerned about the unauthorised release of confidential information to be joined to a s 45 action. In these circumstances, I am not satisfied on the evidence that disclosure of the information is not authorised. The respondent has failed to satisfy this criterion.
Will disclosure cause detriment?
I note that there is some doubt on the authorities as to whether detriment is a necessary element to establish a breach of confidence. For example, in Ammon v Consolidated Minerals Ltd[No 3],[34] Martin CJ observed:
The third element of the cause of action identified by Megarry J in Coco (at 47), was described by him as ‘an unauthorised use of the information to the detriment of the party communicating it’. In Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574; (1989) 16 IPR 27, this third element was referred to by LA Forest J as the element of misuse of the information. That terminology avoids specific reference to the element of detriment – an element which later cases strongly suggest is not an essential component of the equitable claim for breach of confidence – see for example Attorney-General v Observer Ltd (1990) 1 AC 109; National Roads and Motorists’ Association Ltd v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 at [58]; N P Generations Pty Ltd v Feneley [2001] SASC 185; (2001) 80 SASR 151 at [21]. Although the matter is not entirely free from doubt, the better view seems to be that detriment is not an essential element of the cause of action.
[34] [2007] WASC 232.
The learned authors of Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed),[35] proposed that it is safer to apply the statement of principle by the Full Federal Court in Optus Networks Pty Ltd v Telstra Corporation Ltd,[36] in which the Court adopted a previous formulation by Gummow J[37] and said that there are four elements to a claim for breach of confidence in equity, not including detriment.
[35] At [42]-[100].
[36] [2010] FCAFC 21; (2010) 265 ALR 281, 290 [39].
[37] Smith Kline & French Laboratories (Aust) Ltd (1990) 22 FCR 73, 87.
Despite this uncertainty, I will approach the matter by reference to the FOI Guidelines which provides that all five criteria must be satisfied in order to found an action for breach of confidence. The Guidelines say:
5.171. The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information. Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The last three are applicable only to private persons and entities, but not to government.
5.172. The AAT has applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.

There is no evidence adduced from the States that they would suffer detriment if the information was disclosed. Mr Jeremenko gave evidence that they would be less willing to participate in confidential discussions with the Commonwealth if they were not confident that the discussions would be kept confidential in the future. This presupposes that the information in question was confidential which I have not found. With respect to the respondent’s claim of detriment if the material in question were disclosed, I note that there is, in effect, a class claim based on an assumption as to the usual understanding of confidentiality in dealings between state and Commonwealth governments. However, it is not enough to merely assert a consequence that the States would be less willing to participate in confidential discussions with the Commonwealth without having established a sufficient factual foundation based on the particular information contained in the documents. In any event, there was no evidence as to the detriment that would be caused by the release of the particular information in the redacted sentence of paragraph 2(c). Once again, the Tribunal is left in a difficult position because of the paucity of probative evidence. Once again, I am not satisfied on the evidence that the respondent has established any detriment that would be suffered by the States. The respondent has failed to satisfy this criterion.
Conclusion as to s 45 claim in Document 1
The respondent has failed to establish four out of the five criteria necessary to found an action for breach of confidence. Not only has the respondent failed to adduce the necessary evidence but there is documentary material set out above in paragraphs 12 and 13 of these reasons which provides positive evidence that the information from the States was not confidential and that it was not received in confidence. It follows that redacted sentence of paragraph 2(c) in Document 1 is not exempt from disclosure and that it should be released to the applicant unless the respondent’s s 47B claim is successful.
Information from third party stakeholders/companies
Mr Jeremenko addressed the issue of information provided by third party stakeholders in paragraphs 8, 9 and 10 of his affidavit. These non-government stakeholders provided written submissions to the Department either publicly or in confidence in response to the Department’s Issues Paper. The public submissions were published on the Department’s website and were tendered as an exhibit by the applicant. These stakeholders include gas producers, LNG exporters, industrial gas users and industry associations.[38] In the Department’s Options Paper (Document 3) there are references to, summaries of and extracts from these third party submissions.
[38] See the Department’s Options Paper at paragraph 2 of the Executive Summary.
Mr Jeremenko was cross examined about paragraph 8 of his affidavit regarding the sentence in the last paragraph of page 7 of Document 3. He confirmed that this was a reference to a third party stakeholder (and not a government). He said that the passage identified the stakeholder[39] and that there was no consultation with the stakeholder. Mr Patrick was not in a position to contradict Mr Jeremenko because he does not have access to the document, but I have read the second sentence in the final paragraph on page 7 of Document 3 and I find that it does not identify by name the stakeholder whose submission is being referenced.
[39] Transcript, p 176 at line 37.
Instead of naming a particular stakeholder, the sentence refers to a generic group to which the stakeholder belongs, but that reference could not be used to identify the stakeholder. The footnote refers to a document described as an attachment to what would appear to be another document, i.e., the attachment being referred to in the footnote does not appear as an attachment to Document 3 nor is it before the Tribunal. It may be that Mr Jeremenko meant that the stakeholder could be identified by reference to something in that attachment but in any event it is clear to me that the stakeholder would not be identified if the redacted sentence and footnote were disclosed.
I conclude that the s 45 claim with respect to the sentence and footnote in the last paragraph of page 7 of Document 3 must fail. The disclosure of information from an unidentified source cannot give rise to a breach of confidence. If the stakeholder who provided a submission in confidence is not identified (or able to be identified), then it would have no cause of action for breach of confidence. The disclosure of the redacted parts on page 7 of Document 3 would cause no detriment to any of the stakeholders because they would not be identified. Disclosure would not found an action for breach of confidence in their favour.
Paragraph 9 of Mr Jeremenko’s affidavit addresses redactions made to passages in Document 3 that either summarise or quote from submissions received by the Department from third party companies in relation to the Commonwealth’s gas policy. Under cross examination Mr Jeremenko agreed that the passages identified who made the submission.[40] In paragraph 10, Mr Jeremenko deposed that the third party companies made their submissions on a mutual understanding of confidence, that the submissions are not publicly available and that the Department has not been authorised to publicly release them. However, those third party companies were not called to give evidence, nor were they consulted with respect to their information over which a claim for confidentiality has been made.
[40] Transcript, p 177 line 45.
I turn now to the five criteria as to whether the disclosure of the redactions referred to in paragraph 9 of Mr Jeremenko’s affidavit would found an action for breach of confidence.
Can the information be identified with specificity?
The information in question is set out in paragraphs 9 of Mr Jeremenko’s affidavit and has therefore been identified with specificity. This is not in dispute.
Does the information have the necessary quality of confidence?
None of the third party companies whose submission is summarised or quoted from in the Department’s Issues Paper was called to give evidence. However, the evidence establishes that these third party companies provided “confidential submissions” which were to be “treated accordingly.”[41] The submissions are not publicly available and no authority has been given to release them. Despite there being no evidence from the third party companies as to whether their submissions are confidential in nature, it can be inferred that they have the necessary quality of confidence from the fact that they were provided in confidence and that they are not publicly available or authorised to be released. I have read the redacted passages in Document 3 which are referred to in paragraph 9 of Mr Jeremenko’s affidavit and I consider that they convey information that has the necessary quality of confidence.
Has the information been communicated and received on a mutual understanding of confidence?
[41] Department’s Issues Paper at page 4 first paragraph.
The Department’s Issues Paper invited stakeholders to make submissions and said “confidential submissions will also be accepted and treated accordingly.” The information of those third party companies set out in paragraph 9 of Mr Jeremenko’s affidavit was provided on the basis that it would be treated as confidential. There was a mutual understanding of confidence and hence this criterion is satisfied.
Is disclosure threatened without authority?
I accept Mr Jeremenko’s evidence that the Department has not been authorised by the third party companies to release their submissions. Any disclosure of their information would be unauthorised. This criterion is satisfied.
Will disclosure cause detriment?
Mr Jeremenko addresses detriment in paragraph 10 of his affidavit in which he deposes that:
the release of the information would cause a detriment to the third parties, because it would disclose to the public and to their competitors their confidential information, namely their internal views about certain public policy matters.
It would have been of assistance to the Tribunal to have evidence from the third parties (or an understanding of their position as to confidentiality). However, I am satisfied that the criterion of detriment is established because it flows from my finding that the information was confidential in nature and therefore it can be inferred that the disclosure of the third parties’ confidential information to their competitors and to the world at large would cause them detriment.
Conclusion as to s 45 claim in Document 3
The respondent has established that disclosure of the information set out in paragraph 9 of Mr Jeremenko’s affidavit would found an action for breach of confidence. Document 3 is exempt from disclosure under s 45 to the extent of the information set out in paragraph 9 of Mr Jeremenko’s affidavit.
Section 47B - Damage to Commonwealth-State relations
Division 3 of Pt IV of the FOI Act provides that specified documents will be “conditionally exempt” on public interest grounds. Section 11A(5) of the FOI Act requires an agency to give a person access to a document which is “conditionally exempt” at a particular time unless, in the circumstances, access to the document at that time would, on balance, be contrary to the public interest.
Section 47B is within Division 3 of Pt IV of the FOI Act and provides relevantly:
47B Public interest conditional exemptions—Commonwealth‑State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or
It is apparent on the face of s 47B that it provides two separate grounds for exemption so I will consider them separately.
Section 47B(a)
In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information),[42] White J considered some of the statutory concepts in s 47B(a) and said as follows:
[216] The word “damage” in s 47B is not qualified by any adjective as to extent or character. In context, it seems apt to refer to forms of intangible damage: Diamond v Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 at [103]; Re Maher and Attorney‑General’s Department (1985) 7 ALD 731 at 742. It can also be taken to connote a less severe deleterious effect than “a substantial adverse effect”, which is the expression used in the cognate provisions in ss 47D, 47E and 47J of the FOI Act.
[217] On the other hand, s 47B(a) operates with respect to “damage”, which would preclude adverse effects which cannot be characterised as such, for example, effects which do no more than cause relationships to develop in particular ways, without being damaging. The damage need not be generalised damage to the relationship between the Commonwealth and the State: damage to the relations in some particular respect would be sufficient: Re Guy v Department of Transport (1987) 12 ALD 358 at 363.
[218] The term “relations between the Commonwealth and a State” in s 47B should not be understood as having a narrow conception. It is capable of encompassing the whole of the relationship between the Commonwealth, on the one hand, and a State or States (accepting that, in accordance with s 23(b) of the Acts Interpretation Act 1901 (Cth), the singular “a State” may encompass two or more States). In Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607, Wilcox J said of the then s 33A of the FOI Act (the predecessor of s 47B):
[T]he words ‘relations between the Commonwealth and a State’ refer to the total relationship between the Commonwealth and the relevant State. As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State. The word ‘relations’ includes all of those contacts.
[42] [2021] AATA 2719.
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft[43] (‘Cockcroft’) at 190 where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Mason J and per Gibbs CJ.
[43] (1986) 10 FCR 180.
Sheppard J agreed with Bowen CJ and Beaumont J in Cockcroft but gave separate reasons in which he said at 196:
In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
In Arnold v Queensland,[44] Wilcox J said at 616 that the words ‘could reasonably be expected’ do not require the demonstration of a probability of damage. President Kerr in Fernandes v National Archives[45] was guided by Sheppard J’s reasons in Cockcroft and said that:
…the proper point of the spectrum is somewhere between risk and balance of probabilities. But in the end … the real test is not to be found in any gloss of judicial language, but rather in the language of the Archives Act itself understood in the context of the interests it is protecting.[46]
[44] (1987) 73 ALR 607.
[45] [2014] AATA 180.
[46] Ibid [40].
The FOI Guidelines with respect to exemptions provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The FOI Guidelines set out the types of “damage” contemplated by subsection 47B(a) of the FOI Act. The following specific, non-exhaustive, examples of “damage” are given in paragraph 6.33:
·interrupting or creating difficulty in negotiations or discussions that are underway, including in the development of joint or parallel policy;
·adversely affecting the administration of a continuing Commonwealth-State project;
·substantially impairing (but not merely modifying) Commonwealth-State programs;
·adversely affecting the continued level of trust or cooperation in existing inter office relationships; and
·impairing or prejudicing the flow of information to and from the Commonwealth.
Paragraph 6.34 of the FOI Guidelines provides that decision makers may also need to consider future working relationships where disclosure may, for example:
·impair or prejudice the future flow of information
·adversely affect Commonwealth-State police operations or investigations
·adversely affect the development of future Commonwealth-State projects
The potential damage need not be quantified, but the effect on relations arising from the disclosure must be adverse: paragraph 6.35 of the FOI Guidelines.
An agency cannot rely on a class claim contention; rather, each request must be considered individually with regards to the contents of the document: paragraph 6.28 of the FOI Guidelines.
Section 47B(b)
Paragraph 6.41 of the FOI Guidelines provides, under the heading “Information communicated in confidence”:
When assessing whether the information was communicated in confidence, the test is whether the communication was considered to be confidential at the time of the communication. The circumstances of the communication may also need to be considered, such as:
·whether the communication was ad hoc, routine or required
·whether there were any existing, implied or assumed arrangements or understandings between the Commonwealth and State concerning the exchange or supply of information
·how the information was subsequently handled, disclosed or otherwise published.
The FOI Guidelines further provide at [6.43] that this exemption should not be claimed where the documents relate to routine or administrative matters or documents that are already in the public domain.
Consideration as to whether the redacted material is conditionally exempt under s 47B(a)
Mr Jeremenko gave evidence in paragraph 11 of his affidavit that the disclosure of information redacted in paragraph 2(c) of Document 1 would, or could reasonably be expected to, damage relations between the Commonwealth and the States. The claimed damage is the impairment of the ability of the Commonwealth and the States to engage in constructive and confidential consultations about sensitive matters of public policy. As stated earlier in these reasons, I am not satisfied on the evidence that the information in question has the necessary quality of confidence or that it was communicated on a mutual understanding of confidence. Absent the necessary evidence to establish confidentiality, I cannot be satisfied that damage would be caused by disclosure of the information in question.
Mr Jeremenko gave evidence in paragraph 12 of his affidavit that the disclosure of information redacted on page 12 of Document 3 would, or could reasonably be expected to, damage relations between the Commonwealth and the States. The claimed damage is the impairment of the ability of the Commonwealth and the States to engage in constructive and confidential consultations about sensitive matters of public policy. The first redacted sentence on page 12 is a statement about the impact of the market and geography on gas production and export in three states. There is no sensitive or confidential information, nor any statement of policy, in this sentence. The evidence from Mr Jeremenko as to the damage potentially caused by the release of this information does not address how it would or could arise from the particular information in question.
The second and final redacted sentence on page 12 ‘contains what could be regarded as critical commentary about the policies of a state’.[47] The statement is found in the first paragraph under the heading “Gas Reservation in Australia” and it amounts to a summary of a state’s position on gas reservation and its conduct which is then set out in more detail in the section dealing separately with each of the states and the Northern Territory. If there is any implied criticism or sensitivity in the redacted sentence, then that same criticism could be implied from the open (and not redacted) assessment given under the heading of the particular state. In light of this open additional and more expansive information in relation to the particular state, there is no sensitive or confidential information in the redacted sentence and its release could not possibly cause any additional damage.
[47] Jeremenko affidavit at [12].

Mr Jeremenko gave evidence in paragraph 13 of his affidavit that the disclosure of information redacted pursuant to s 47B on pages 36, 37 and 38 of Document 3 would, or could reasonably be expected to, damage relations between the Commonwealth and the States. The claimed damage arises because these portions of the document contain the Department’s analysis of potential consequences of any Commonwealth action on the States. I am not satisfied on the evidence from Mr Jeremenko that the disclosure of the Department’s analysis would or could cause damage. It is known that the Department consulted with each of the States as part of the process following the Department’s Issues Paper but there is no probative evidence as to the contents of those consultations. Mr Jeremenko does not give any evidence as to whether, for example, the States were aware of the Department’s analysis or whether such analysis is confidential or sensitive. The evidence from Mr Jeremenko as to the damage potentially caused by the release of this information does not address how it would or could arise from the particular information in question. The respondent has not satisfied its onus of establishing the causative effect of disclosing this information and therefore the claim under s 47B is not made out.
With respect to the respondent’s claim of damage expected to be caused if the material in question[48] is disclosed, I note that there is, in effect, a class claim based on an assumption as to the usual understanding of confidentiality in dealings between state and Commonwealth governments. However, it is not enough to merely assert a consequence of damage in the nature of expected impairment to future dealings without having established a sufficient factual foundation based on the particular information contained in the documents.[49] In this case, the respondent failed at the first hurdle by not establishing on the evidence that Commonwealth-state communications were in fact confidential. The premise or assumption which underpinned the expectation of damage was not established.
Consideration as to whether the redacted material is conditionally exempt under s 47B(b)
[48] Listed in paragraphs 11, 12 and 13 of the affidavit of Mr Jeremenko.
[49] See paragraph 6.36 of the FOI Guidelines and the reference to MacTiernan and Secretary, Department of Infrastructure and Regional Development [2016] AATA 506 at [63].
Mr Jeremenko gave evidence in paragraph 11 of his affidavit that the disclosure of information redacted in paragraph 2(c) of Document 1 would divulge information communicated in confidence by or on behalf of the States. I refer to and repeat paragraphs 8 to 16 of these reasons about Mr Jeremenko’s evidence. Mr Jeremenko said that he did not consult with the Victorian government about the FOI claim being made in these proceedings[50] and that he did not discuss with any of the States whether or not they considered their position on the gas reservation policy to be confidential.[51] Despite not adducing any evidence from the States, nor even consulting with them, Mr Jeremenko purports to give evidence that all of the consultation responses received from the States were communicated to the Commonwealth with the mutual understanding, and with the expectation of, confidentiality. Relevantly, Mr Jeremenko notes that these communications related to a specific consultation, yet no evidence was adduced from the persons (namely the representatives of the Commonwealth and the States) who were a party to and attended the specific consultation.
[50] Transcript, p 164 line 44.
[51] Transcript, p 167 lines 27-31.
The result is a complete lack of evidence from the States and no direct evidence from the Commonwealth about the process of communication between the Commonwealth and each of the States or about information from the States said to be communicated in confidence by or on behalf of the States to the Commonwealth. The particular circumstances of the communication are not the subject of evidence except for Mr Jeremenko saying that as a matter of course discussions on policy between the Commonwealth and state governments or the private sector are entered into and conducted on a mutual understanding of confidence.[52] This assumed understanding or inference of confidentiality is not consistent with the particular circumstances known about the communications as set out in paragraphs 11 to 16 in these reasons. I am not satisfied on the evidence provided that disclosure of information redacted in paragraph 2(c) of Document 1 would divulge information communicated in confidence by or on behalf of the States. The respondent has not satisfied its onus under s 61(1)(b).
Conclusion as to s 47B
[52] Transcript, p 165.
I have found that the documents over which there is a s 47B claim are not conditionally exempt. It follows that the applicant is entitled to have access to the material that was redacted by the respondent pursuant to s 47B. In this circumstance there is no need to consider whether access should be given on public interest grounds.[53]
Section 47C – deliberative processes
[53] See paragraph 6.7 of the FOI Guidelines which says that a decision maker is not required to consider the public interest test (s 11A(5)) until they have first determined that the document is conditionally exempt.
Section 47C(1) sets out the general rule prescribing when a document will be conditionally exempt from disclosure on the basis it will disclose deliberative processes:
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
The exceptions to the general rule are set out in ss 47C(2):
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
In Dreyfus and Secretary Attorney-General’s Department,[54] Bennett J explained that ‘purely factual material’ ‘does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in, or intertwined with, the deliberative content such that it is impractical to excise it.’
[54] [2015] AATA 962 at [18].
The FOI Guidelines deal with the ‘deliberative process’ and ‘assessing deliberative matter’ as follows (citations omitted):
Deliberative process
6.58 A deliberative process involves the exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
6.59 ‘Deliberative process’ generally refers to the process of weighing up or evaluating competing arguments or considerations or to thinking processes – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
6.60 The deliberative process must relate to the functions of an agency, minister or the government of the Commonwealth. The functions of an agency are usually found in the Administrative Arrangements Orders or the instrument or Act that established the agency. For the purposes of the FOI Act, the functions include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, such as code of conduct investigations, may also be deliberative processes.
6.61 A deliberative process may include the recording or exchange of:
·     opinions
·     advice
·     recommendations
·     a collection of facts or opinions, including the pattern of facts or opinions considered
·     interim decisions or deliberations.
6.62 An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process. However, it is not sufficient that an agency merely has a document in its possession that contains information referring to matters for which the agency has responsibility.
Assessing deliberative matter
6.63 ‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document. There is no reason generally to limit the ordinary meanings given to the words ‘opinion, advice or recommendation, consultation or deliberation’.
6.64 The agency must assess all the material to decide if it is deliberative matter that relates to, or is in the nature of, the deliberative processes of the agency or minister.
6.65 The presence or absence of particular words or phrases is not a reliable indication of whether a document includes deliberative matter. The agency should assess the substance and content of the document before concluding it includes deliberative matter. Similarly, the format or class of the document, such as a ministerial brief or submission, or the document being a draft version of a later document does not automatically designate the content as deliberative matter.
6.66 Material that is not deliberative matter, where not already excluded as operational information, purely factual material or a scientific report, would include:
·content that is merely descriptive
·incidental administrative content]
·procedural or day to day content
·the decision or conclusion reached at the end of the deliberative process
·matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.
6.67 Where material was gathered as a basis for intended deliberations, it may be deliberative matter. However, if the material was obtained before there was a known requirement that the material would be considered during a deliberative process, that material would not be deliberative matter.
Consideration as to whether the material is conditionally exempt under s 47C?
I turn now to a consideration of whether disclosure of the document in issue would disclose deliberative matter. Section 47C has a broad application because it exempts (conditionally) documents the disclosure of which would disclose matter relating to opinion, advice or recommendation. Section 47C makes a clear distinction between disclosure of matter in the nature of opinion, advice or recommendation (on the one hand) and the disclosure of matter relating to opinion, advice or recommendation (on the other). This distinction was applied by the Full Court of the Federal Court in Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd[55] when considering a similarly worded provision at 309:
In failing to consider whether or not disclosure of the documents would disclose matter relating to, as distinct from matter in the nature of, opinion, advice or recommendation or consultation or deliberation as referred to in s 36(1)(a), the Tribunal erred.
[55] (2001) 114 FCR 301.
The use of the expression ‘relating to’ denotes some connection or relationship. It is ‘an expression of wide and general import’[56] which gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends’.[57] Overall, the position judicially adopted has been that the operation of the expression ‘relating to’ is determined by the statutory context and purpose.[58]
[56] Fountain v Alexander (1982) 150 CLR 615, 629.
[57] Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 when considering the expression ‘in respect of’.
[58] Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211, 225.
Mr Jeremenko deposed in his affidavit at paragraphs 14 to 24 that passages of Documents 1 and 3, and the entirety of Document 2, are exempt from disclosure pursuant to s 47C because they contain deliberative matter.
The documents were prepared by the Department in response to a request from the Minister for Resources that the Department consult with stakeholders and provide advice as to the options for a prospective national gas reservation scheme. After that process of consultation, the Department provided its opinions and recommendations to the Minister in a ministerial submission to which was attached a draft letter to the Prime Minister and an options paper.
I have read the material that has been redacted pursuant to s 47C and I consider that it is conditionally exempt. Document 1 contains the Department’s recommended course of action with respect to a potential gas reservation policy, which the government had announced it would consider. Document 2 was a draft letter proposed to be sent to the Prime Minister from the Minister for Resources outlining the recommended position. Document 3 contains an analysis of various potential policy options and a summary of the approach ultimately recommended to the Minister.
The documents in question contain options and recommendations for the Minister to consider. The material redacted in Document 3 includes assertions of fact that are inherently intertwined with the Department’s opinions and assessments regarding the merits of a gas reservation policy that cannot be practically separated from the balance of Document 3. If revealed, the redacted material would clearly disclose the deliberative process which was undertaken by the Department in advising the Minister in relation to the options for a prospective national gas reservation scheme. This redacted material is conditionally exempt from disclosure, but the applicant should be given access to it unless it would be contrary to the public interest.
Public interest test
Section 11A(5) provides the following:
The Agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to public interest.
The respondent must give the applicant access to the conditionally exempt material pursuant to s 11A(5) unless access would be contrary to the public interest. A decision maker cannot withhold access to a document simply because it is conditionally exempt. Disclosure of conditionally exempt documents is required unless in the particular circumstances and, at the time of the decision, there is, on balance, countervailing harm which offsets the inherent public interest of giving access.[59]
[59] FOI Guidelines at [6.7].
For the purposes of working out whether access would, on balance, be contrary to the public interest, s 11B sets out factors favouring access and factors that are irrelevant and further obliges the decision-maker to have regard to the Guidelines.
Paragraphs 6.5 and 6.6. of the FOI Guidelines set out the general principles regarding what is in the public interest:
·something that is of serious concern or benefit to the public, not merely of individual interest;
·not something of interest to the public, but in the interest of the public;
·not a static concept, where it lies in a particular matter will often depend on a balancing of interests;
·necessarily broad and non-specific (because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered); and
·it is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.
Paragraph 6.19 of the Guidelines provides examples of factors under s11B(3) that would favour disclosure, including if disclosure would:
·Promote the objects of the FOI Act such as:
oinform the community of the Government’s operations;
oreveal the reason for a Government decision and any background or contextual information that informed the decision; and/or
oenhance the scrutiny of Government decision-making;
·Inform debate on a matter of public importance, including to:
oallow or assist inquiry into possible deficiencies in the conduct of an agency or official; and/or
oreveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.
99.The Guidelines note that the FOI Act does not list any factors weighing against disclosure:
6.20 …However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the application of public interest factors that may be relevant in a particular case.
6.21 Citing the specific harm defined in the applicable conditional exemption is not of itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.
6.22 A non-exhaustive list of factors against the disclosure is provided below.
Public interest factors against disclosure
(a)could reasonably be expected to prejudice the protection of an individual’s right to privacy…
(b)could reasonably be expected to prejudice the fair treatment of the individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
(c)could reasonably be expected to prejudice security, law enforcement, public health or public safety
(d)could reasonably be expected to impede the administration of justice generally, including procedural fairness
(e)could reasonably be expected to impede the administration of justice for an individual
(f)could reasonably be expected to impede the protection of the environment
(g)could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h)could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i)could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
(j)could reasonably be expected to prejudice the competitive commercial activities of an agency
(k)could reasonably be expected to harm the interests of an individual or group of individuals
(l)could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General
(m)could reasonably be expected to discourage the use of the agency’s access and research services
(n)could reasonably be expected to prejudice the management function of an agency
(o)could reasonably be expected to prejudice the effectiveness of testing or auditing procedures.
It is apparent from the terms of Part 6 of the Guidelines that a balancing exercise is required which weighs up the factors favouring disclosure and the factors against disclosure. The balancing exercise takes place after the determination that the documents are ‘deliberative’ and are therefore conditionally exempt under s 47C.[60] The Guidelines provide an example of this process in the context of whether harm arises from disclosure:
6.56 While identifiable harm resulting from disclosure is not a specific factor in determining whether a document may be categorised as ‘deliberative’, it may be relevant subsequently when deciding where the balance of the public interest lies. If, in a particular case, a deliberative document may be released without appreciable harm resulting, this would tend to indicate that it would not be contrary to the public interest to disclose the document and therefore it must be released to the applicant.
[60] FOI Guidelines at [6.7].

The Guidelines consider the interaction between s 47C and the Cabinet exemption in s 34:
6.86 In some cases, a document may contain deliberative matter that relates to Cabinet in some way but is not exempt under the Cabinet exemption in s 34. An example would be a document containing deliberative matter that is marked ‘Cabinet-in-confidence’ but nonetheless does not satisfy any of the exemption criteria in s 34. Disclosing a document of this kind would not necessarily be contrary to the public interest only because of the connection to Cabinet deliberations. For example, disclosure is less likely to be contrary to the public interest if:
·the document contains a deliberative but otherwise non-sensitive matter about a policy development process that has been finalised, and
·the government has announced its decision on the issue.
The Public Interest Factors for and against Disclosure
The respondent relies upon the evidence of Mr Jeremenko that giving access to the material redacted under s 47C would be contrary to the public interest. Appropriate weight should be given to his evidence,[61] but I am required to reach my own view as to the public interest. Mr Jeremenko said in his affidavit:
[61] New South Wales v Ryan (1998) 101 LGERA 246.
29. Regarding the passages marked as exempt pursuant to s 47C, in my experience I am aware that in order for the Department to provide full and frank advice on contentious public policy issues, it is sometimes necessary for the Department to express opinions and provide advice which:
(a)involves critical analysis of the activities or positions of third parties including Australian states, foreign governments and private organisations;
(b) relies on confidential assessments of the efficacy of particular policies; and
(c)relies on information from a variety of stakeholders which has been provided in confidence.
30. If the passages currently redacted on the basis of s 47C are released, I consider that this can reasonably be expected to potentially discourage the Department (and other Commonwealth agencies) from effective conduct of deliberative processes and impede the ability of the Department (and of other Commonwealth agencies) to:
(a)deliver comprehensive and uncensored advice to the Minister in relation to sensitive policy issues, in circumstances where such advice may otherwise include overt criticism of other jurisdictions' policies and actions and discussion of information received by the Department in circumstances of confidence; and
(b) obtain information in confidence for the purposes of so advising the Minister.
31. Relevantly, Australia's gas reservation policy continues to be a matter of significant public policy debate. The issue of Australia's gas reserve is likely to be a matter in respect of which the Commonwealth will require ongoing advice and recommendations from the Department. I note in this regard that the documents the subject of the decision outline the Department's discussion of various policy options, and its recommendations, having regard to confidential submissions of stakeholders, the efficacy of different gas policies in Australia and around the world, and relevant legal advice. As such, notwithstanding the passage of time and that there was a change in Government after the documents were produced, the public disclosure of those portions of the documents marked as exempt under s 47C would result in the disclosure of sensitive policy deliberations and recommendations that continue to be relevant.
32. In this context, recently the Department has commenced a consultation process regarding Australia's Future Gas Strategy, and called for public submissions from stakeholders including gas producers, domestic consumers and the general public The scope of this consultation is broad, and I anticipate that one matter which is likely to be raised by some stakeholders is the issue of a national gas reservation policy, which is a matter addressed in the Options Paper comprising Document 3. I consider that the Commonwealth's capacity to effectively engage in necessary deliberative processes and respond to issues raised in the consultation would be compromised by the release of the parts of Document 3 which indicate the advice and recommendations provided to date in relation to this issue. The release of this information to the public would likely mean that stakeholders participating in the current (and future) consultation would be discouraged from providing confidential and comprehensive submissions in circumstances where they are aware that their submissions, or the Department's analysis and recommendations in respect of those submissions, may become publicly available and where the Commonwealth would not be able to guarantee any commitment to confidentiality it may wish to offer consultees in relation to the information they may provide.
The applicant relies on the witness statement from Mr Bruce Robertson, an independent gas analyst, who says that energy lies at the base of the economy and that gas plays a central role in energy prices. He refers to numerous reports over recent years from the Australian Competition and Consumer Commission. The applicant contends that there is overwhelming public interest in the disclosure of information relating to a gas reservation policy.
The respondent acknowledges that access to the passages of Documents 1, 2 and 3 that are conditionally exempt under s 47C could be said to promote the objects of the FOI Act and inform debate on a matter of public importance.[62] Mr Jeremenko deposes in his affidavit that Australia’s gas reservation policy continues to be a matter of significant public policy debate. He refers in his affidavit to the recent consultation process regarding Australia’s Future Gas Strategy in which the Department has called for public submissions from stakeholders and the general public,[63] but under cross examination he disagreed that it would be helpful to make public the options and their consequences because they were based on submissions and consultations from 2020 and 2021 obtained under a separate process.[64] Later in his cross examination Mr Jeremenko said with respect to the current process that “in weighing up the public interest, there are aspects that would be of benefit.”[65] He accepted under cross examination that the release of the material in question would provide the public with a broader knowledge of the complexities in the energy market and how that potentially impacts on price which goes to cost of living concerns.[66]
[62] Respondent’s Statement of Facts, Issues and Contentions dated 13 November 2023, at [94].
[63] Jeremenko affidavit at [31] and [32].
[64] Transcript, p 162 lines 20 to 33.
[65] Transcript, p 189 lines 46 and 47.
[66] Transcript, p 187 at lines 38 to 41.
Section 11B(3) provides a non-exhaustive list of factors that favour access:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
I consider that the factors in s 11B(3)(a) and (b) favour access. Disclosure of the documents in issue would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities. Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities. I consider that disclosure of the documents would inform debate on a matter of public importance.
The respondent contends in its Statement of Facts, Issues and Contentions that on balance the public interest weighs heavily against disclosure because:
(a)it can reasonably be expected that disclosure would prejudice the ability of the Department (and other Commonwealth agencies) to engage in effective deliberative processes in respect of sensitive public policy matters as Departmental officers will be discouraged from delivering comprehensive and uncensored advice to the Minister; and
(b)it can reasonably be expected that disclosure would prejudice the ability of the Commonwealth to receive confidential or sensitive information from third parties to assist in the Commonwealth’s deliberative processes in circumstances where consulted stakeholders would be discouraged from providing future confidential submissions where they know that the Department’s deliberations in respect of those submissions may be disclosed to the public despite assurances of confidentiality.
I give very little weight to the consequence of disclosure (asserted in subparagraph (a) above) due to Department officials being allegedly discouraged from delivering comprehensive and uncensored advice to the Minister. In support, I refer to the FOI Guidelines which provide that:
[6.84] Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.
The ministerial submission itself confirms the public nature of the Commonwealth’s consideration of gas reservation policy. Paragraphs 1 and 2 of the key points of the submission state:
[1] The Australian Government has publicly committed to exploring options for a prospective national gas reservation scheme on several occasions.
[2] In October and November 2020, the department sought public comment on an issues paper and undertook targeted stakeholder consultations …
Having made a public commitment, encouraged public submissions and received a very significant number of public responses,[67] I do not consider there to be any material harm if the deliberations of the Department are also made public. Further, I note that much of the material redacted under s 47C relates to the economics and geographical considerations of a gas reservation policy which is not inherently confidential or sensitive material.
[67] The public responses to the Department’s Issues Paper were attached to the applicant’s witness statement and totalled 228 pages.
I would also give very little weight to the prejudice asserted to flow from making public the Department’s deliberations in respect of third party submissions. I note that I have already found that the third party submissions which were quoted or summarised in Document 3 (referred to in paragraph 9 of Mr Jeremenko’s affidavit) are exempt from disclosure under s 45. It follows that stakeholders who accepted the offer of confidentiality when they agreed to make a written submission would have no reason to fear that any confidential submissions in the future would be disclosed. As for the Department’s deliberations in relation to those submissions, they relate generally to all submissions received (whether on a confidential basis or not) and do not reveal any particular confidential submission made by a third party. Disclosure of material of this kind would be expected and would cause no appreciable harm because stakeholders or industry groups would not be deterred from engaging in the future.
Balancing the public interest
Having given very little weight to the countervailing factors asserted by the respondent, it is my view that the public interest favours disclosure. I consider that giving access to the applicant would not be contrary to the public interest and, accordingly pursuant to s 11A(5) the respondent should release the material redacted under s 47C to the applicant.
Section 33(a)(iii) - Documents affecting international relations
Section 33 in Division 2 of Part IV of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)the security of the Commonwealth;
(ii)the defence of the Commonwealth; or
(iii)the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: See also subsection 4(10).
In Secretary, Department of Prime Minister and Cabinet and Summers[68] Perry J said with respect to s 33 of the FOI Act:
[33] First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”…Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant.
[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[68] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Cockcroft[69] at 190 where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Mason J and per Gibbs CJ.
[69] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180.
Sheppard J agreed with Bowen CJ and Beaumont J in Cockcroft but gave separate reasons in which he said at 196:
In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
Wilcox J said in Arnold v Queensland[70] at 616 that the words ‘could reasonably be expected’ do not require the demonstration of a probability of damage.
[70] (1987) 73 ALR 607.
President Kerr in Fernandes v National Archives [2014] AATA 180 was guided by Sheppard J’s reasons in Cockcroft and said that:
…the proper point of the spectrum is somewhere between risk and balance of probabilities. But in the end … the real test is not to be found in any gloss of judicial language, but rather in the language of the Archives Act itself understood in the context of the interests it is protecting.[71]
[71] [40].
President Davies in Maher and Attorney-General’s Department[72] said at 742 that a mere possibility of damage would not be sufficient and further:
The phrase "damage to international relations of the Commonwealth" comprehends intangible damage to Australia's reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.
I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth. A mere allegation to that effect is not enough. There must be cause and effect which can reasonably be anticipated. But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for a finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.
[72] (1985) 7 ALD 731.
The FOI Guidelines with respect to exemptions provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The FOI Guidelines at [5.36] provides that the phrase ‘international relations’ has been interpreted as meaning the ability of the Australian government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them; it encompasses intangible damage, such as loss of trust and confidence in the Australian government.[73]
Evidence
[73] FOI Guidelines at [5.37].
Mr Warren Hauck gave evidence in relation to the international relations claim under s 33(a)(iii). Passages of his affidavit dated 13 November 2023 were the subject of a confidentiality order.[74] Dr Philip Dorling gave evidence by affidavits dated 4 December 2023 and 2 January 2024. The evidence given by Mr Hauck and Dr Dorling about Japan, Korea and Singapore was that we have a very strong and important relationship with them and that they rely heavily on imports of Australian energy and therefore have a very real interest in Australia’s domestic regulatory regime relating to energy. However, their evidence differs as to the effect on international relations if the documents were released.
[74] Exhibit 4A is the redacted affidavit of Mr Hauck. Exhibit 4B is the unredacted affidavit which is subject to an order of confidentiality.
Dr Dorling deposed in his 4 December 2023 affidavit:
46. It is in the context of this very broad, deep and multifaceted relationship, characterised by the Prime Minister as having "never been stronger", that any judgment about damage to international relations must be made.
47. Given the publicly expressed judgments of the Prime Minister, the Foreign Minister, other relevant Ministers and indeed the Japanese Prime Minister, it is scarcely credible to suggest that the release of an options paper commissioned by the former Australian Government would have any damaging impact of Australia's international relations with Japan.
48. The release of such a document may attract some measure of interest and indeed comment in Japan or elsewhere. lt may do so as a historical insight into policy formation in a past government, but interest and comment are most unlikely to amount to anything more than that. Certainly not damage to a manifestly strong and deep bilateral relationship.

The effect of Dr Dorling’s opinion is that the relationships with Japan, Korea and Singapore are so strong that the release of a historical document on the topic of gas reservation policies would do no appreciable harm. In his second affidavit dated 2 January 2024, Dr Dorling deposes further:
18. Any such release of information will be taken from a paper generated within a former Australian Government and now overtaken by the current Australian Government’s energy and climate change policy decisions, extensive political and parliamentary debate and the passage of new legislation, and more than eighteen months of diplomacy that has produced new agreements and collaborative arrangements in regard to energy supply and security. It may be the case that release of such information will require Mr Hauck to provide some explanation, commentary and context to representatives of other governments and stakeholders. DFAT might conceivably find it necessary to direct the attention of those governments and stakeholders to the assurances already provided by the highest levels of the Australian Government. But that would not constitute “damage” to Australia’s international relations. It would be a case of DFAT and Mr Hauck doing their job.
Mr Patrick further submits that disclosure of the documents would benefit the relationship because transparency would be appreciated by Australia’s international partners.
Mr Hauck gives examples in his affidavit of foreign governments expressing concerns regarding the potential impact of past policy changes. He deposes that an important aspect of his current role has been to provide assurance to foreign governments of Australia’s commitment to remaining a reliable energy supplier in the future. With respect to the Department’s Options Paper, he says that the disclosure of the redacted material would, or could reasonably be expected to, cause damage to Australia’s international relations. He explains why in passages of his affidavit that are the subject of an order for confidentiality. He provides separate reasons for each of the following parts of the redacted material:
(a)Passages describing options that were not adopted;
(b)Passages evaluating activities of foreign governments;
(c)Passages referencing legal advice.
I find below that the passages referencing legal advice are exempt from disclosure under s 42 so there is no need for me to consider whether they are also exempt under s 33(a)(iii). In any event, I am satisfied on the confidential evidence of Mr Jeremenko at paragraphs 59 and 60 of his affidavit that international relations could reasonably be expected to be damaged if this material were to be disclosed.
With respect to the redacted passages describing options that were not adopted, I have carefully considered the confidential paragraphs 38 to 43 of Mr Hauck’s affidavit where he explains the damage to international relations that would arise from disclosure of options for a prospective gas reservation scheme that were not adopted. I give significant weight to the opinion expressed on this issue by Mr Hauck. He has 20 years of experience at the Department of foreign Affairs and Trade which includes significant periods managing Australia’s international trade and economic relationships. His experience provides a strong basis for him to assess how information relating to Australia’s domestic economic and energy policies would impact on Australia’s international relationships.
Further, Mr Hauck in the confidential passages provides a detailed and coherent analysis of why the disclosure of the particular information could damage international relations. I am satisfied with respect to the “cause and effect that can reasonably be anticipated”[75] from disclosure. I note that the threshold for my satisfaction is less than the balance of probabilities but still requires real and substantial grounds. Whilst Australia has a strong relationship with Japan, Korea and Singapore, their reliance on energy from Australia provides the contextual setting for potential damage arising from disclosure of information relating to gas reservation in Australia because of the very real economic impact that Australia’s domestic policies could have on those countries. Mr Hauck deposes to real and substantial grounds for my finding that the disclosure of this information[76] could reasonably be expected to cause damage to the international relations of the Commonwealth.
[75] Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537 at [34].
[76] Namely, the information in the passages describing options that were not adopted – see paragraph 36 of the Hauck affidavit.
With respect to the redacted passages evaluating activities of foreign governments, Mr Hauck provides confidential evidence at paragraphs 45 to 47 of his affidavit. At an open and general level, there is potential for damage to a relationship with a foreign government if Australia engages in an evaluation of the activities of that government. In this case Mr Hauck provides a detailed and coherent analysis of why the disclosure of the particular information could damage international relations. I am satisfied with respect to the “cause and effect that can reasonably be anticipated”[77] from disclosure. Mr Hauck deposes to real and substantial grounds which support my finding that the disclosure of this information[78] would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth.
[77] Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537 at [34].
[78] Namely, the information in the passages evaluating activities of foreign governments – see paragraph 44 of the Hauck affidavit.
With respect to the redacted passages considered by Mr Hauck at paragraphs 48 to 54 of his affidavit, I have considered the confidential evidence given by Mr Hauck and I am satisfied that the disclosure of this information could reasonably be expected to cause damage to the international relations of the Commonwealth.
Section 42 - Legal professional privilege
The ATO has withheld certain documents as exempt due to a claim of legal professional privilege. Section 42 provides:
Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
A document will be exempt from disclosure pursuant to s 42 if it would be privileged from production in legal proceedings on the ground of legal professional privilege. There is no definition of legal professional privilege in the FOI Act and therefore one turns to the common law concepts.
The principle of professional privilege to be applied in Australia was first stated by Barwick CJ in Grant v Downs[79] at 677:
…a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
[79] (1976) 135 CLR 674.
The applicant accepts that a s 42 claim would be appropriate where it is expressly stated that legal advice was given but otherwise, the Tribunal should consider for itself whether the claimed passage is privileged.
The s 42 claim is limited to passages within Document 3. Mr Jeremenko deposed in his affidavit that the claimed passages, in effect, reproduce advice received from lawyers employed by the Department of Foreign Affairs and Trade (DFAT) in response to a request from the Department. The legal advice provided by the DFAT employed lawyers concerned the nature of Australia’s obligations under international law.[80] Mr Jeremenko deposed at [37] of his affidavit in detail how the legal advice was incorporated into each separate passage of Document 3. I have read those passages and agree with Mr Jeremenko that the substance or conclusions of the legal advice given was summarised in those passages. I find that the passages claimed under s 42 in Document 3 would be privileged from production in legal proceedings on the ground of legal professional privilege.
[80] Jeremenko affidavit at [33].
Conclusion
The applicant has been successful on his application with respect to the documents which were claimed to be conditionally exempt under ss 47B and 47C. The applicant is entitled to access the information redacted in paragraph 2(c) of Document 1 and the redacted passages of Documents 1 and 3, and the entirety of Document 2, referred to in paragraphs 14 to 24 of Mr Jeremenko’s affidavit.
The applicant has been partially successful on his application with respect to the documents which were claimed to be exempt under s 45 because I have found that the redacted sentence of paragraph 2(c) in Document 1 is not exempt from disclosure under s 45. The respondent has been successful under s 45 with respect to the information set out in paragraph 9 of Mr Jeremenko’s affidavit which I have found are exempt from disclosure.
The application has not been successful with respect to the documents claimed to be exempt under s 33(a)(iii) and s 42 because I have found that those documents are exempt from disclosure.
Decision
I set aside the decision under review made by the Department of Industry, Science and Resources dated 14 July 2022 (as later altered) and substitute a decision[81] that:
[81] The applicant did not contest the decision under review in so far as it found that he is not entitled to access the names and contact details claimed to be exempt pursuant to s 47F.
(a)the passages of the documents listed in paragraphs 35, 36, 44 and 55 of the affidavit of Mr Hauck together with the sixth sentence of the third paragraph of page 25 of Document 3 and the fourth paragraph of page 27 of Document 3 (including the footnote) are exempt pursuant to s 33(a)(iii) of the FOI Act;
(b)the passages of the documents listed in paragraph 37[82] of the affidavit of Mr Jeremenko are exempt pursuant to s 42(1) of the FOI Act;
[82] Noting that the reference to “the second sentence” in paragraph 37(f) of the affidavit of Mr Jeremenko should be changed to “the second half of the sentence”.
(c)the part of the sentence after the comma in paragraph 2(c) of Document 1 is not exempt from disclosure pursuant to s 45;
(d)the passages of Document 3 listed in paragraph 9 of the affidavit of Mr Jeremenko are exempt from disclosure pursuant to s 45;
(e)the passages of the documents listed in paragraphs 11, 12 and 13 of the affidavit of Mr Jeremenko are not conditionally exempt pursuant to s 47B; and
(f)the passages of the documents listed in paragraphs 14 to 24 of the affidavit of Mr Jeremenko are conditionally exempt pursuant to s 47C but access should be given to the applicant pursuant to s 11A(5) because access to this material would not be contrary to the public interest.[83]
[83] The references herein to the passages of documents listed in the affidavits of Mr Jeremenko and Mr Hauck should be consistent with the references in the Respondent’s Schedule of Documents handed up to the Tribunal on 1 February 2024.

I certify that the preceding 140 (one-hundred-and-forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...............................[sgd].........................................
Associate
Dated: 31 July 2024

Date(s) of hearing: 11 and 12 January, 1 February 2024

Applicant’s Representative: Self-represented

Counsel for the Respondent: Kylie McInnes

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	11 and 12 January, 1 February 2024
Applicant’s Representative:	Self-represented
Counsel for the Respondent:	Kylie McInnes
Solicitors for the Respondent:	Clayton Utz