Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information)
[2021] AATA 2719
•5 August 2021
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (5 August 2021)
Division: FREEDOM OF INFORMATION DIVISION
File Number: 2020/5875 & 2020/5876
Re:Patrick
APPLICANT
AndSecretary, Department of Prime Minister and Cabinet
RESPONDENT
DECISION
Tribunal:The Honourable Justice White
Date:5 August 2021
Place:Adelaide
1.The decisions under review, namely the decisions of Mr Hupalo of 6 and 10 August 2020 respectively, are set aside.
2.The Applicant be granted access to:
a.the documents sought in his letter of request of 10 July 2020 which is the subject of AAT 2020/5875; and
b.the documents sought in his letter of request of 10 July 2020 which is the subject of AAT 2020/5876, other than those sought in paragraph 1 of the letter and the Cabinet Handbook and other than Items 2‑7 in the Minutes of the meeting on 15 March 2020.
............................[SGND]..........................
The Honourable Justice WhiteCATCHWORDS
FREEDOM OF INFORMATION – review of the refusals by the Department of Prime Minister and Cabinet to give access to documents to minutes of the National Cabinet – whether documents are exempt documents pursuant to s 34(1) of the Freedom of Information Act 1982 (Cth) (the FOI Act) – consideration of the meaning of “committee of the Cabinet” – whether National Cabinet is a committee of the Cabinet – whether documents are conditionally exempt documents pursuant to s 47B of the FOI Act because their disclosure would or could reasonably be expected to cause damage to relations between the Commonwealth and a State – decisions set aside – order for access made.
LEGISLATION
Constitution ss 61, 62, 64
Acts Interpretation Act 1901 (Cth) s 23(b)
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 44A(1)
Evidence Act 1995 (Cth) s 130
Freedom of Information Act 1982 (Cth) ss 3, 4, 11, 11A, 11B, 15, 22, 24A, 31A, 31B, 33A, 34, 47B, 47C, 47D‑47J, 54W, 57A, 58, 58E, 61, 93A
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth)
Migration Act 1958 (Cth) s 303Freedom of Information Bill 1981
CASES
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607
Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180
Browne v Dunn (1893) 6 R 67
Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1
Diamond v Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Egan v Willis and Cahill (1996) 40 NSWLR 650
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188, (2008) 172 FCR 513
Jaffarie v Director‑General of Security [2014] FCAFC 102; (2014) 226 FCR 505
Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, (2004) 208 ALR 73
McGrath v Director‑General, National Archives of Australia [2020] AATA 1790
Minister for Arts, Heritage and Environment v Peko‑Wallsend Ltd (1987) 15 FCR 274
Re Guy v Department of Transport (1987) 12 ALD 358
Re MacTiernan and Secretary, Department of Infrastructure and Regional Development [2016] AATA 506
Re Maher and Attorney‑General’s Department (1985) 7 ALD 731
Re Minister of Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909
Re Toomer v Department of Agriculture, Fisheries and Forestry [2003] AATA 1301
Rogers v Home Secretary [1973] AC 388
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15
Secretary, Department of Prime Minister and Cabinet v Summers [2019] AATA 5537
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Spencer v Commonwealth of Australia [2012] FCAFC 169; (2012) 206 FCR 309
State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553
The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Waubra Foundation v Commissioner of Australian Charities and Not-for-Profits Commission (2017) AATA 2424Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414
HEARING DATE
19 May 2021
SECONDARY MATERIAL
Killey I, Constitutional Conventions in Australia, (Australian Scholarly Publishing, 2012)
Bagehot W, The English Constitution, 1867
Macquarie Dictionary (8th Edition)
Constitutional Conventions in Westminster Systems, Controversies, Changes and Challenges, edited by Galligan B, and Brenton S (Cambridge University Press, 2015)REASONS FOR DECISION
Justice White
5 August 2021
Introduction [1]
The review by the Tribunal [12]
The evidence [16]
Inspection of the subject documents [23]
Statutory provisions [29]
The Cabinet documents exemption [38]
The meaning of the term “committee of the Cabinet” [41]
The establishment of the National Cabinet [67]
The composition of the National Cabinet [90]
The reliance on historical precedents [94]
The discretion of the Prime Minister of the day [104]
Control of membership by the Prime Minister? [110]
The relationship of the National Cabinet with the Cabinet [121]
The relevant time [124]
The evidence [129]
A Cabinet Office Policy Committee [142]
Assessment of the evidence [149]
The Cabinet Secretary [156]
Conclusion on the relationship between the National Cabinet and the Cabinet [160]
The manner of operation of the National Cabinet [161]
Confidentiality of the National Cabinet deliberations [171]
Sub-committees of the National Cabinet [174]
Collective responsibility and solidarity [177]
The respondent’s opinion evidence [197]
Conclusion concerning the Cabinet documents exemption [210]Conditionally exempt documents – damage to Commonwealth‑State
relations [211]The statutory concepts [216]
Matters of approach [222]
Is a class claim available? [230]
The respondent’s evidence as to the effect of disclosure of the
minutes of 29 May 2020 [245]The effect of disclosure of the minutes of 29 May 2020 [254]
The effect of disclosure of the minutes of 15 March 2020 [269]
Conclusion [276]
Decision [277]
Introduction
The effect of s 34 of the Freedom of Information Act 1982 (Cth) (the FOI Act), in conjunction with ss 31A and 31B, is to make records of the Federal Cabinet and its committees exempt from access under that Act.
On 10 July 2020, the applicant made two applications under the FOI Act to the Department of the Prime Minister and Cabinet (DPMC) for access to information concerning the National Cabinet established in March 2020 as part of the Governmental response to COVID‑19.
By the first application, the applicant sought access to:
All meeting notes/minutes taken from the meeting of the National Cabinet on 29 May 2020.
By the second application, the applicant sought access to a range of documents concerning the formation and functioning of the National Cabinet, being:
1.Any documents (including correspondence) that provide the formal notification to the Governor-General that the National Cabinet was/was being formed in March 2020.
2.The documents that outline/describe the rules that the National Cabinet is bound by. To clarify further, the documents might include rules or guidance on the following issues:
a.How decisions of the National Cabinet are arrived at (e.g. majority, consensus etc.)
b.Whether any jurisdiction has a right of veto over decisions of the National Cabinet.
c.Whether decisions of the National Cabinet are binding on the Commonwealth and the States/Territories.
d.Whether the National Cabinet operates within the conventions, policies and guidance set out in the Cabinet Handbook.
e.Whether Premiers and Chief Ministers are bound by conventions of Cabinet solidarity and confidentiality.
f.Who is to serve as the Secretary of the National Cabinet and how the National Cabinet's decisions are recorded and disseminated.
g.What Federal, State and Territory officials are permitted to listen to and participate in National Cabinet discussions.
h.Whether Cabinet note-takers take note of National Cabinet deliberations.
i.Whether deliberations of the National Cabinet (including via teleconference and videoconference) are recorded and/or transcribed, and if not, what measures are in place to ensure that National Cabinet discussions are not recorded and/or transcribed.
I will refer to the documents sought by the applicant collectively as “the subject documents”.
On 6 August 2020, Mr Hupalo, an Assistant Secretary in the Cabinet Secretariat in DPMC, notified the applicant that the Department had identified five documents as relevant to his first request but said that he had decided to refuse access to them. Mr Hupalo asserted that each of the five documents, being minutes of the National Cabinet, is an official record of the Cabinet which s 34(1)(b) of the FOI Act makes exempt from production. He said that this was so because the National Cabinet is a committee of the Cabinet.
On 10 August 2020, Mr Hupalo notified the applicant that no documents had been identified as within the scope of part 1 of the second request and, accordingly, that pursuant to s 24A(1)(b)(ii) of the FOI Act, access to documents of that kind was refused. In relation to part 2 of the request, Mr Hupalo said that two documents had been identified as within the scope of the request, being (a) the Cabinet Handbook (13th Edition) and (b) “the minutes of the relevant National Cabinet meeting”. Mr Hupalo did not identify the meeting which he regarded as “the relevant” meeting of the National Cabinet but, as will be seen later, it is the meeting of 15 March 2020. He granted the applicant access to the Cabinet Handbook (13th Edition) but refused access to the minutes. Again, he relied on s 34(1)(b) of the FOI Act, asserting that the National Cabinet is a committee of the Cabinet for the purposes of that provision.
The applicant sought review of both decisions by the Australian Information Commissioner, pursuant to Part VII of the FOI Act. However, acting pursuant to s 54W, a delegate of the Commissioner decided not to undertake the review, being satisfied that it was in the interests of the administration of the FOI Act that both of Mr Hupalo’s decisions be considered by this Tribunal.
The applicant then commenced in the Tribunal the two applications for review with which this decision is concerned. He seeks access to all the documents which are the subject of his first request and to the minutes to which Mr Hupalo referred in responding to the second request.
The applications were heard together. At the hearing, the respondent, who is the Secretary of the DPMC, maintained the position that s 34(1)(b) of the FOI Act makes the subject documents exempt from access. He contended, in addition, that the subject documents are “conditionally exempt” from access, pursuant to s 47B of the FOI Act, and that, in the application of s 11A(5) of the FOI Act, the Tribunal should be satisfied that the disclosure of them would, on balance, be contrary to the public interest with the consequence that the applications for review should also be dismissed on this basis.
For the reasons which follow, I am satisfied that orders should be made granting the applicant access to each of the subject documents.
The review by the Tribunal
The applicant brings his applications to the Tribunal pursuant to s 57A(1)(b) of the FOI Act.
The Tribunal’s powers on the review derive from s 58(1) of the FOI Act:
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
Once a document is established to be an exempt document, the Tribunal may not decide that access be granted to it (s 58(2)).
The parties’ submissions proceeded on the basis that the Tribunal’s task on the review is to determine whether Mr Hupalo’s decisions are the correct or preferable decisions on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J) to which reference was made in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [35] (Kirby J), at [98] (Hayne and Heydon JJ) and at [141] (Kiefel J). However, by s 61(1)(b) of the FOI Act, DPMC has the onus of establishing that Mr Hupalo’s decisions are justified or that the Tribunal should give decisions which are adverse to the applicant. The standard of proof required is the balance of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, (2004) 208 ALR 73 at [65]; Fisse v Secretary, Department of the Treasury [2008] FCAFC 188, (2008) 172 FCR 513 at [30] (Buchanan J) and at [91] (Flick J).
The evidence
The evidence before the Tribunal is wholly documentary. It comprises:
(a)the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act);
(b)a Statement of Agreed Facts to which is annexed the Cabinet Handbook (14th Edition) (Exhibit A1);
(c)affidavits made by Dr Philip Dorling on 16 April, 7 May and 13 May 2021, tendered by the applicant;
(d)an affidavit of Ms Leonie McGregor made on 16 April 2021, tendered by the respondent;
(e)an affidavit of Mr Philip Gaetjens (the respondent) made on 16 April 2021, tendered by the respondent; and
(f)the Cabinet Handbook (13th Edition) (Exhibit A7).
Dr Dorling obtained a doctorate in Politics from Flinders University in 1996 and has considerable experience in politics and public administration. Between 1992 and 1994, he worked as a historian in the Department of Foreign Affairs and Trade; in 2003 he worked in the Department and Premier and Cabinet in Tasmania; and from 2003 to 2008 he worked in the Chief Minister’s Department in the Australian Capital Territory. He has also worked as adviser to a number of politicians and is currently the political adviser to the applicant.
Mr Gaetjens has been Secretary of DPMC since 2 September 2019 and has more than 40 years’ experience in the public sector. In particular, from August 2011 until July 2015, he was Secretary of the New South Wales Department of Treasury, from October 2015 to June 2018 he was Chief of Staff to the Hon Scott Morrison MP, and from August 2018 to August 2019, he was Secretary of the Commonwealth Department of the Treasury.
Ms McGregor has been the First Assistant Secretary in the Cabinet Division of DPMC since May 2019. She had previous experience in that Division having held the position of Assistant Secretary from May to October 2013. Since 1992, Ms McGregor has worked in multiple departments, including the Department of Health, the Department of Finance, the Independent Parliamentary Expenses Authority and DPMC. She held the position of Deputy Director General of Health in the Australian Capital Territory between July 2018 and May 2019. All in all Ms McGregor has had a 29 year career in the public sector.
None of the deponents was required to attend for cross‑examination.
Mr Dorling’s evidence was mainly documentary, or derived from documents, as it provided evidence of statements made by the Prime Minister in media statements and press conferences, and documents directed to showing that certain statements of Ms McGregor regarding historical precedents were wrong. It was not suggested that Mr Dorling’s evidence was unreliable. I accept his evidence.
The respondent’s affidavit was directed to the issues of whether the National Cabinet is a committee of the Cabinet and to the effect of disclosure of the subject documents on Commonwealth‑State relations. Ms McGregor’s affidavit was directed to the same issues, albeit more of the former than the latter. The evidence of each tended to be generalised and conclusionary in form. In some respects, the evidence of each was inconsistent with documentary evidence and seemed to assume the truth of a matter to be decided by the Tribunal (whether the National Cabinet is a committee of the Cabinet), and in some respects both the respondent and Ms McGregor expressed opinions about the effect of disclosure of the minutes on a view of their content which is not borne out by an examination of the documents. As will be seen, I do not accept all their evidence.
Inspection of the subject documents
As the evidentiary material did not satisfy me at the commencement of the hearing on 20 May 2021 that the subject documents are exempt documents, I required the respondent to produce them for inspection, exercising the power conferred by s 58E(2) of the FOI Act. I inspected the documents so produced by the respondent after the hearing had concluded.
It is appropriate to record a little about the documents produced for the Tribunal’s inspection, but I will endeavour to do so in a manner which does not reveal at this stage matters of substantive content.
In an envelope marked “AAT 2020/5875” relating to the applicant’s request for “[a]ll meeting notes/minutes taken from the meeting of the National Cabinet on 29 May 2020”, the respondent initially produced five documents. The first purported to be a minute of the meeting of the National Cabinet of 24 March 2020. There was nothing on the face of this document, or in the other documents in the envelope, which indicated how it could reasonably be regarded as a minute of the meeting of the National Cabinet held on 29 May 2020. On the Tribunal’s enquiry as to whether this document had been produced in error, the respondent’s solicitor confirmed that that was the case and on 22 June 2021 provided a replacement document.
Three of the remaining four documents initially produced appeared on their face to be extracts of the minutes of the National Cabinet Meeting on 29 May 2020 held by the Attorney‑General’s Department, the Department of Infrastructure, Transport, Regional Development and Communications and the Department of Home Affairs respectively. In two cases, the extracts were of Item 8 only and in one case of Item 7 only. Somewhat curiously, the fourth document, the original of which has the notation “Original authorised by Cabinet Secretary” and “Agreed as Final by the Prime Minister”, contained Items 1 and 2 only, that is, it did not include Items 7 and 8. No minutes were produced initially for Items 3 to 6 inclusive.
On the face of the documents initially produced, it was accordingly not apparent how they could, even when considered in combination, be regarded as constituting “all” the minutes of the meeting of the National Cabinet held on 29 May 2020 which the applicant had requested. However, the replacement document produced on 22 June 2021 seems on its face to be complete: it consists of Items 1‑11 and concludes with the notation “Original authorised by Cabinet Secretary”.
In an envelope marked “AAT 2020/5876” and relating to the applicant’s second request, the respondent produced a single document, with the heading “Cabinet Minute” and the subheading “National Cabinet”, being on its face the minutes of the meeting of the National Cabinet held on 15 March 2020, including an attachment to those minutes.
Statutory provisions
The FOI Act grants every person a legally enforceable right, subject to the Act, to obtain access, in accordance with the Act, to documents of an “agency”, other than an “exempt document” (s 11).
When a person makes a request in accordance with s 15(2) of the FOI Act for access to a document of the agency, the agency must give the person access to the document in accordance with the Act (s 11A(1) and (3)) but is not required to do so if the document is an “exempt document” (s 11A(4)). If the document is “conditionally exempt”, the agency must give the person access to it “unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest” (s 11A(5)).
The term “agency” is defined in s 4(1) of the FOI Act to include “a Department”. It was common ground that DPMC is an agency for this purpose.
The term “exempt document” is defined in s 4. It is subpara (a) of the definition which is pertinent presently:
exempt document means:
(a)a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or
…
The term “conditionally exempt” is defined in s 4(1):
conditionally exempt: a document is conditionally exempt if Division 3 of Part IV (public interest conditional exemptions) applies to the document.
Section 31B in Part IV of the FOI Act indicates the circumstances in which a document will be “exempt” and “conditionally exempt”:
31B Exempt documents for the purposes of this Part
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
…
Section 34 in Part IV provides that Cabinet documents are exempt:
34 Cabinet documents
General rules
(1)A document is an exempt document if:
(a) both of the following are satisfied:
(i)it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii)it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c)it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d)it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2)A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3)A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Exceptions
(4)A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5)A document by which a decision of the Cabinet is officially published is not an exempt document.
(6)Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
In resisting the present applications, the respondent relies on s 34(1)(b), contending that each of the documents sought by the applicant “is an official record of the Cabinet”. For this purpose, he relies on the extended meaning of the term “Cabinet” in s 4(1):
Cabinet includes a committee of the Cabinet.
Division 3 of Part IV of the FOI Act identifies the circumstances in which a document will be “conditionally exempt”. I will return to it later.
The Cabinet documents exemption
It is convenient to address first the issue of whether s 34(1)(b) makes the subject documents exempt documents for the purposes of Part IV of the FOI Act. The applicant accepted that a finding that s 34(1)(b) has that effect would be determinative of his applications.
The hearing proceeded on the basis that each of the subject documents comprises formal minutes of meetings of the National Cabinet. My inspection of the documents confirms that characterisation, although, as indicated, in some cases the documents produced are extracts only. It may be accepted therefore that, if the National Cabinet is a committee of the Cabinet, each of the documents is “an official record” within the meaning of that term in s 34(1)(b) – see Re Toomer v Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [74].
The critical question therefore is whether the subject documents are official records of “the Cabinet”. The respondent contends, and the applicant disputes, that the subject documents are of this character because they are official records of a “committee of the Cabinet”.
The meaning of the term “committee of the Cabinet”
The mere use of the name “National Cabinet” does not, of itself, have the effect of making a group of persons using the name a “committee of the Cabinet”. Nor does the mere labelling of a committee as a “Cabinet committee” have that effect. That term has the meaning with which it is used in the FOI Act and, in order for s 34(1)(b) of that Act to be applicable in the present case, the National Cabinet must come within that statutory meaning.
It is therefore necessary to construe the expression “committee of the Cabinet” in the definition of “Cabinet” in s 4(1). It is a composite expression and should be construed as such having regard to its text, context and purpose.
The overall purpose of the FOI Act is to give the Australian community access to publicly held documents and thereby to promote representative democracy. So much is stated in s 3 of the FOI Act:
3Objects—general
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
…
However, the entitlement to access to public documents is qualified by provisions which, in some cases, preclude access altogether to documents of identified classes and which, in other cases, preclude access to the documents whose disclosure would have particular effects.
As is apparent from the terms set out earlier in these reasons, s 34 operates to exempt altogether from access under the FOI Act a class of documents described broadly as “Cabinet documents”. Subsections (1), (2) and (3) have the effect of making exempt from disclosure the documents to which they refer, simply because of their character as documents within the class, and without differentiation according to their content or by reference to the effect, or likely effect, of their disclosure. It is reasonable to infer that s 34, although enacted before the decision in The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 (NLC High Court), reflects the considerations to which the majority in that case referred, at 615‑6:
[I]t has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential … Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course … The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support.
(Citations omitted)
So much was in any event confirmed by Minister Viner in the Second Reading Speech for the Freedom of Information Bill 1981 on 18 August 1981:
It is of the essence of Cabinet government that the deliberations of Cabinet and Executive Council should be protected from mandatory disclosure.
The purpose of the Cabinet documents’ exemption informs the understanding of the expression “a committee of Cabinet”. It implies a subgroup so closely related to the Cabinet that the considerations which make appropriate the exemption of documents of the Cabinet also make appropriate the exemption of its documents from disclosure.
The term “Cabinet” is not defined in the Constitution nor in any other legislation of the Australian Parliament. It is not given any recognition in the Constitution as a repository of executive power. Instead the Constitution provides that the executive power of the Commonwealth is exercisable by the Governor-General as the Queen’s representative (Constitution s 61) who is advised by the “Federal Executive Council” (s 62). Nevertheless, the Cabinet in the Australian governmental system has a well‑recognised existence and function, even if the early development of the Cabinet system be obscure: Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 (NLC Full Court) per Black CJ, Gummow and French JJ at 16.
Bowen CJ, in Minister for Arts, Heritage and Environment v Peko‑Wallsend Ltd (1987) 15 FCR 274 at 279, described the Cabinet as a body which functions according to “convention”. This term is capable of a variety of meanings but I understand his Honour to be referring to a body of unwritten normative rules and practices generally observed and acknowledged but not legally binding: Killey I, Constitutional Conventions in Australia, (Australian Scholarly Publishing, 2012), at 10‑11. Because these normative rules have their origins in underlying principle, they are more than mere practices or usages which happen to be observed.
The parties referred the Tribunal to a number of authorities concerning the nature, role and responsibilities of the Cabinet in our system of government. In FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 373‑4, Murphy J described features of the Commonwealth Cabinet:
[I]n theory, the Governor in Council, and in practice the Cabinet, is the highest political organ of the State. The Cabinet, which has no place in the formal Constitution, is a committee of Ministers of the ruling parliamentary party or parties. The Cabinet is responsible for all decisions of the Governor in Council, even if in practice the real decisions are left to several Ministers or (as often in regulation‑making) to one Minister. The Cabinet decisions are collective decisions. It is well‑known that the Ministers who attend and recommend the Council action (including the Minister in charge of the Department concerned) may on occasion disapprove of the action. A Minister making the recommendation for action by the Council may be of opinion that the action proposed is undesirable, contrary to good government or even unconstitutional; he may make a recommendation because a majority of his Cabinet colleagues decide otherwise (or occasionally because a majority of his parliamentary party think otherwise).
(Emphasis added)
In Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, Blackburn CJ at 421 described the Federal Cabinet in the following way:
Cabinet is a group of persons who have in common certain political aims. It has to make decisions which must command support in Parliament and, it is hoped, will command substantial support in the electorate … Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the government.
It has been said that the Cabinet stands at the apex of policy formulation (Peko‑Wallsend at 279) and that it is “the repository of de facto decision‑making power” (NLC Full Court at 20). In 1867, Bagehot in “The English Constitution” said at 10:
The Cabinet, in a word, is a board of control chosen by the legislature, out of persons it trusts and knows, to rule the nation.
As seen earlier, in NLC High Court the majority used the expression “the body responsible for the creation of state policy at the highest level” with reference to the Federal Cabinet, at 615.
These authorities indicate that Cabinets derive their existence from, and are accountable to, the Parliament from which they are drawn. They have a collective responsibility to that Parliament for the administration of the affairs of government, and for its decision‑making.
Although each of the authorities to which I have referred post‑dated the enactment of the FOI Act (in the case of FAI v Winneke by about two months), it is reasonable to infer that the Parliament used the term “Cabinet” with the same understanding of its role in our system of responsible and representative government. Apart from anything else, this understanding derives support from the references to the proposals by, and briefing, of “Ministers” to which s 34(1)(a)(ii) and s 34(1)(c) respectively refer.
Counsel for the applicant emphasised that the Federal Cabinet is a committee of Ministers comprised of Ministers ordinarily drawn from the party or parties in Government (FAI v Winneke at 373) and that the Ministers who form the Executive Council cannot hold office as Minister for longer than three months unless they are or become a Senator or a Member of the House of Representatives (Constitution s 64). The effect is that persons who are not, or who cease to be, elected members of the Australian Parliament can be a member of the Executive Council for only a very short period. As the Cabinet is the de facto shadow of the Executive Council, the same position pertains with respect to it as a matter of convention. Counsel then submitted that the s 4 definition of “committee of the Cabinet” should be construed with regard to this understanding. There is force in this submission, and I consider that it should be accepted.
The meaning of the term “Cabinet” in s 34(1)(b) of the FOI Act is not of course controlled by the statements of the Prime Minister of the day. However, statements by Prime Minister Morrison in the Cabinet Handbooks, 13th and 14th Editions, issued on 28 August 2019 and 16 October 2020 respectively, are consistent with these understandings of the term “Cabinet”. In each Cabinet Handbook the Prime Minister described the Cabinet as “the primary decision-making body of government” and as “the council of senior ministers who are empowered by the Government to take binding decisions on its behalf”.
This understanding of the term “Cabinet” assists in the construction of the composite term “committee of the Cabinet”.
The term “committee” is defined in the Macquarie Dictionary (8th Edition) to mean “a person or a group of persons elected or appointed from a larger body to investigate, report, or act in special cases”. This supports the view that a “committee of the Cabinet” is a reference to a subgroup of the Cabinet itself, as distinct from a group of persons who are extraneous to the Cabinet.
Moreover, the committee must be “of” the Cabinet. The preposition “of” is capable of a variety of meanings. In one sense it means “derivation, origin, or source”. In another sense it means “belonging or possession, connection, or association” (Macquarie Dictionary, 8th Edition). The former sense seems more apt to the term “committee of the Cabinet”. But on either meaning, the preposition suggests a committee derived from the Cabinet or belonging to it.
Ms McGregor deposed that there are, or have been, a number of committees of the Cabinet. Some have been standing committees and some ad hoc. She mentioned specifically the National Security Committee, the Expenditure Review Committee, the Productivity Committee, the Regional Australia and Regional Development Committee, the Social Policy and Social Inclusion Committee and the Naval Shipbuilding Enterprise Governance Committee. Ms McGregor did not give evidence about the formation, composition or functioning of these Committees, nor provide any other information about them which may have informed the context in which the Parliament used the term “committee of the Cabinet” when enacting the FOI Act. However, I am willing to infer that they were established in the manner set out in the Cabinet Handbooks 13th and 14th Editions, albeit in earlier iterations of those Cabinet Handbooks:
The Cabinet
…
2.The Cabinet is a product of convention and practice. … Provided the guiding principles of a Cabinet system are met – collective responsibility and solidarity – it is for the Prime Minister of the day to determine the shape, structure and operation of the Cabinet.
3. …
Cabinet Committees
4.Cabinet committees are usually established around either a subject area, such as national security, or around a general function of government, such as expenditure. Temporary or ad-hoc Cabinet committees may also be established by the Prime Minister to carry out particular tasks.
5.Cabinet committees derive their powers from the Cabinet. Generally, Cabinet committee decisions are brought forward to the Cabinet for endorsement, so the Cabinet retains the ultimate power of decision. While some Cabinet committees may make final decisions for security or practical reasons, most Cabinet committee decisions are not acted on until they have been endorsed by the Cabinet, or the Cabinet Secretary agrees that decisions can be implemented without the Cabinet’s endorsement because they are urgent. In such cases, the Cabinet should be briefed on the Cabinet committee decision as soon as practicable. The Cabinet may alter a Cabinet committee decision or ask a Cabinet committee to consider a matter further.
The Prime Minister
6.The Prime Minister is responsible for the membership of the Cabinet and Cabinet committees, determines and regulates all Cabinet arrangements for the Government and is the final arbiter of Cabinet procedures.
(Emphasis added)
These provisions concerning Cabinet committees are consistent with the understanding of the term “committee of the Cabinet” set out above. On the assumption that the iteration of these provisions existed in the Cabinet Handbooks current at the time of enactment of the FOI Act, they support the view that the term “committee of the Cabinet” referred to a committee which derives its function and purpose from the Cabinet and is subordinate to the Cabinet.
So far as the evidence provided to the Tribunal reveals, there is no indication that, at the time of enactment of the FOI Act, a committee of the Cabinet had comprised persons who were not themselves members of the Cabinet or members of an “outer Ministry”. This militates against a conclusion that the expression “committee of the Cabinet” was intended to encompass a group of such persons.
On the basis of the authorities and the material to which I have referred, and the conventions evident in the materials concerning the Cabinet and committees of Cabinet, I conclude that the term “committee of the Cabinet” in the s 4 definition encompasses a group of persons derived from the Cabinet and performing a function for, or on behalf of, the Cabinet or a group having such a connection or association with the Cabinet that the group can be said to belong to the Cabinet. A group which is not “of” the Cabinet will not be a committee of the Cabinet.
This does not mean that the inclusion of one or more persons who are not Cabinet members or not Ministers in a committee of Cabinet would be fatal to its characterisation as such. The fundamental requirement is that the committee be a committee “of” the Cabinet.
A number of matters bear on the question of whether the National Cabinet is in such a relationship with the Cabinet that it may properly be characterised as a “committee of the Cabinet” for purposes of the FOI Act. These include factual matters such as the manner by which it was established, its composition, its relationship with the Cabinet and the manner of its operation, as well as its place in the system of responsible and representative government established under the Constitution. I will address these in the following sections of these reasons.
The establishment of the National Cabinet
Counsel for the respondent submitted that “the one and only essential feature of a federal Cabinet committee is that it has been established as such a Cabinet committee by the Australian Prime Minister and this is how the National Cabinet was established”. Counsel also submitted that the Prime Minister had the ability “to determine what a cabinet committee is” and that the ability of the Prime Minister to establish cabinet committees is a significant matter.
This seemed tantamount to a submission that any committee may be a “committee of the Cabinet” for the purposes of the FOI Act merely because the Prime Minister of the day has purported to establish it as such. This premise is unsound. For the reasons already given, the expression “committee of the Cabinet” has its statutory meaning and it is not possible for the Prime Minister to establish by designation a group of persons as a committee of the Cabinet and for s 34(1)(b) to apply to it, if the committee does not otherwise answer the statutory description. But in any event, as will be seen, the evidence does not support a conclusion that the Prime Minister “established” the National Cabinet.
All the evidence provided to the Tribunal concerning the establishment of the National Cabinet was secondary in nature. That is to say, the Tribunal did not receive evidence from any primary participant who could give first hand evidence of its establishment.
It is understandable that the applicant could not himself provide such evidence as he was not involved in its establishment. Nor was Dr Dorling who, as indicated, is employed by the applicant as his political adviser.
Although the respondent deposed that he attends all Cabinet meetings and all meetings of the National Cabinet, he did not depose to having attended the meeting of the Council of Australian Governments (COAG) held on 13 March 2020 at which, it seems, the decision was made to establish the National Cabinet. In fact, he did not depose to having attended any meetings of COAG. Ms McGregor, who is the First Assistant Secretary, Cabinet Division in DPMC, did not claim to have attended the COAG meeting on 13 March 2020 or even the meetings of the National Cabinet which have occurred subsequently.
The Prime Minister and any of the other persons who resolved to establish, or witnessed the establishment of, the National Cabinet are persons who could have provided detailed and first hand evidence of the establishment of the National Cabinet but an affidavit from such a person was not provided.
It is very evident that it was the need for urgent action to address the COVID‑19 pandemic which was the impetus for the establishment of the National Cabinet.
The first source of the secondary material provided to the Tribunal is the Statement of Agreed Facts. It records that, at the press conference on 13 March 2020 which followed the COAG meeting held that day, the Prime Minister announced that the “Commonwealth, State and Territory Governments had resolved to form the “National Cabinet””. The T documents included a transcript of the Prime Minister’s statement in making that announcement:
As a result of the advice which was pulled together today by the [A]HPPC, what we have resolved to do is form a National Cabinet to deal with the national response to the Coronavirus. The National Cabinet will be made up of the Premiers, Chief Ministers and myself. We will be meeting on a weekly basis to ensure that we get a coordinated response across the country to the many issues that relate to the management of the Coronavirus.
First and foremost, that is about the health and wellbeing of Australians and managing the health response.
…
And so the members of that Cabinet is who you see before you here today and we are going to be working very closely together to ensure there’s a consistency of response, that there’s a coordination of response. ….
The National Coordinating Mechanism, which I referred to before, will be feeding up to the National Cabinet every week, issues that can then be coordinated between States and Territories. … Each and every State and Territory that is represented here is completely sovereign and autonomous in the decisions that they make. But what we’ve agreed to do together is to work together and be unified and to be as consistent and coordinated as possible in our national response. …
[W]e have agreed today to join together in a National Cabinet. A National Cabinet for an emergency response to these issues that enables us to manage this on a day to day, week to week basis … And the National Cabinet working together with each of the constituent governments, their Cabinets will continue to do all of their jobs.
(Emphasis added)
Although the Prime Minister did not say expressly that the decision to establish the National Cabinet had been made at the COAG meeting, that seems to be the natural inference arising from the fact that he made the announcement in the press conference in which he announced the COAG outcomes. That inference is supported by other evidence (albeit also of a secondary kind). As is apparent, the Prime Minister did not say that he himself, or the Federal Cabinet, had decided to establish the National Cabinet, or that either had established the National Cabinet. He referred instead to a joint resolution to do so.
Also on 13 March 2020, the Prime Minister, the federal Minister for Health and the Commonwealth Chief Medical Officer issued a media release, which is the second source of secondary evidence. The media release stated (relevantly):
A new National Cabinet, made up of the Prime Minister, Premiers and Chief Ministers has been set up and will meet at least weekly to address the country’s response to the Coronavirus, COVID‑19.
The AHPPC, led by the Commonwealth’s Chief Medical Officer and comprising the Chief Health and Medical Officers from each jurisdiction, together with the National Coordination Mechanism convened by the Department of Home Affairs will be the primary bodies that will advise the National Cabinet. The National Coordination Mechanism will work across all jurisdictions, industry and key stakeholders to ensure a consistent approach to managing the impacts of this pandemic beyond the immediate health issues.
AHPPC is the acronym for Australian Health Protection Principal Committee.
The Statement of Agreed Facts includes agreement that the DPMC had, in a public statement in May 2020, confirmed that it was COAG which had made the decision to establish the National Cabinet:
On 13 March 2020 COAG decided to establish a National Cabinet, comprising the Prime Minister, Premiers and Chief Ministers, to coordinate Australia’s response to COVID‑19 across State and Territory Governments and the Commonwealth Government.
The Addendum to the Cabinet Handbook issued by the Department of Premier and Cabinet in Tasmania, which Ms McGregor annexed to her affidavit (the Tasmanian Cabinet Handbook), states:
[11.1.1]The National Cabinet was established by the Council of Australian Governments 48th Meeting to deal with the national response to the Coronavirus pandemic (COVID‑19) …
All this material suggests that it was COAG on 13 March 2020 which resolved to establish the National Cabinet and which did establish it. However, there is some other evidence which suggests that the decision to establish the National Cabinet was not made by COAG or at the COAG meeting. In her affidavit, Ms McGregor deposed with respect to the establishment of the National Cabinet:
[26]The establishment of the National Cabinet was agreed to by the Prime Minister and State and Territory Premiers/Chief Ministers at a meeting held after the Council of Australian Governments (COAG) meeting on 13 March 2020.
(Emphasis added)
Ms McGregor’s statement (which is at least a second hand account) that the decision to establish the National Cabinet was made after the COAG meeting is not supported by any other evidence. In particular, it appears to be inconsistent with the inferences arising from the reports of the Prime Minister’s statements set out above and inconsistent with the statement issued by DPMC in May 2020, to which reference has just been made.
In his affidavit at [14], the respondent deposed that “[t]he Prime Minister, with the agreement of State and Territory leaders, established National Cabinet”. This evidence implies that it was the Prime Minister, albeit with the agreement of the Premiers and Chief Ministers, who established the National Cabinet, rather than it being established by the collective decision at COAG or by the COAG participants. There are obvious shortcomings in the manner in which this evidence was given, including:
(a)the respondent does not claim to have been at the COAG meeting on 13 March 2020, or any other meeting, or to have been present on any other occasion when the decision was made to establish the National Cabinet. His evidence is plainly of a secondary kind; and
(b)the conclusionary manner in which the respondent expressed the evidence, that is, without deposing to any primary facts.
Moreover, there is an absence of primary evidence to support the respondent’s statement and it is inconsistent with Ms McGregor’s statement that the national Cabinet was established by joint agreement.
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.
To similar effect, Flick and Perram JJ stated in Jaffarie v Director‑General of Security [2014] FCAFC 102; (2014) 226 FCR 505 at [26]:
The “weight” to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less “weight”, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the “weight” to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible – always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.
(Emphasis in the original)
The evidence in this case did not meet the standard suggested by these authorities.
On the evidence provided, I am not willing to accept Ms McGregor’s evidence insofar as it suggests that the National Cabinet was established after the COAG meeting. That assertion is not supported by any other evidence and is inconsistent with the inferences naturally arising from the agreed facts. Nor am I willing to accept the respondent’s evidence, given its identified shortcomings and given its inconsistency with the weight of the other evidence. I find that the National Cabinet was established by a collective decision of COAG on 13 March 2020. This, ultimately, was the submission of counsel for the respondent.
While it may be accepted that the agreement of the Prime Minister as one of the COAG participants was necessary for the establishment of the National Cabinet, it was not the Prime Minister who established it. I am also satisfied that the Federal Cabinet did not establish the National Cabinet.
My conclusion as to the establishment of the National Cabinet, and my rejection of the evidence of Ms McGregor and the respondent to the contrary, is supported by my inspection of the attachment to the minutes of the meeting of the National Cabinet on 15 March 2020.
The composition of the National Cabinet
The evidence to which I have already referred indicates that the National Cabinet is comprised of the Prime Minister, the Premiers of each of the States, and the Chief Ministers of the two Territories. Although the evidence indicates that other persons do attend meetings of the National Cabinet, there was no evidence to the effect that they do so as members. The evidence suggests instead that these other persons attend in order to assist the individual members or the National Cabinet as a whole. I am therefore satisfied that it is the Prime Minister, the Premiers and the Chief Ministers who comprise the National Cabinet. That is to say, of the nine persons who comprise the National Cabinet, the Prime Minister is the only one who is also a member of the Cabinet.
The evidence also indicates (and I find) that the Prime Minister acts as the convenor of the National Cabinet.
It is evident that each person is a member of the National Cabinet by reason of the office he or she holds, being Prime Minister, Premier or Chief Minister, as the case may be. They are not chosen by the Prime Minister. That is to say, and as put by counsel for the applicant, the selection of the members of the National Cabinet is not at the discretion of the Prime Minister. Nor is there any evidence that the Prime Minister “appoints” persons as members of the National Cabinet. These matters immediately differentiate the National Cabinet from the committees of the Cabinet to which reference was made earlier, as the Prime Minister is responsible for the membership of those committees and determines and regulates all Cabinet arrangements for the Federal Government.
Another point of distinction is that, unlike other Cabinet committees, the National Cabinet is not comprised, at least substantially, of Ministers of the Federal Government. It is not even comprised of persons belonging to the same government, let alone the same political party.
The reliance on historical precedents
Ms McGregor seemed to recognise the difficulty which the composition of the National Cabinet posed for the respondent’s case by deposing that the establishment of “Cabinets” with limited membership and with the inclusion of State Premiers, or persons who were not Ministers or even members of the Australian Parliament, was not unprecedented. She deposed:
[19]Over time, Cabinet committees have taken on many forms. For example, during times of National crisis, such as during World War II, special purpose Cabinet committees were established. Prime Ministers Menzies and Curtin each established a War Cabinet consisting of a limited selection of Commonwealth Ministers. On 4 February 1942 the State Premiers were invited to and attended a Curtin Government War Cabinet meeting. On 27 August 1942, Prime Minister Curtin announced that ‘a leading member of the Opposition’ Sir Earle Page would be appointed a member of the War Cabinet, due to his experience. In the 1950s, a wide variety of Cabinet committees were formed and officials regularly participated.
Ms McGregor did not provide any other examples to support her claim that the Federal Cabinet or its committees have in the past comprised (as members) persons who were not Ministers in the Government of the day.
In his affidavit, the respondent said that he agreed with the matters to which Ms McGregor had deposed.
Counsel for the respondent sought to rely on [19] in Ms McGregor’s affidavit by submitting in his written outline of submissions:
Whilst Cabinet committees have usually consisted of Federal Ministers, this has not always been the case (McGregor affidavit [19])
The implication in the evidence and the submission seemed to be that the term “committee of the Cabinet” should be construed in the light of this historical experience. However, apart from any other consideration, the respondent’s submission breaks down at the evidential level.
The evidence of Mr Dorling (which I accept) and the historical records concerning the matters to which Ms McGregor referred indicate:
(a)all of the members of the War Cabinets during World War II in the five governments led successively by Prime Ministers Menzies, Fadden and Curtin were Ministers in the Federal Government at the time of their membership;
(b)persons who were not members (such as the Chiefs of Staff of the Australian Armed Services, the Secretary of the Department of Defence Coordination and other senior officials) did attend War Cabinet meetings to provide advice when required, but none was a member of the War Cabinet.
(c)State Premiers attended by invitation one meeting of the War Cabinet, namely the meeting on 4 February 1942, but not as members of the War Cabinet.
(d)Sir Earle Page was not a member of the War Cabinet in the Government led by Prime Minister Curtin, and Prime Minister Curtin did not make the announcement on 27 August 1942 which Ms McGregor attributes to him. Rather, Prime Minister Curtin invited Sir Earle Page to attend meetings of the War Cabinet “in a consultative capacity”. The documents indicate that Prime Minister Curtin issued this invitation having regard to the recent international experience of Sir Earle Page;
(e)for similar reasons, Prime Minister Curtin also invited Sir Earle Page to be a member of the Advisory War Council, but the Council was not the War Cabinet or even the Cabinet. It was instead a body comprised of the Prime Minister, senior members of the Federal Government and senior members of the Opposition;
(f)the members of the Cabinet committees established by Prime Minister Menzies at the commencement of the 1950’s were all Ministers in his government;
(g)officials may have attended, and even participated in, Cabinet committees but not as members of the Cabinet or of Cabinet committees.
It could not be held reasonably, in my view, that disclosure of the formal record of the National Cabinet of its purpose and the manner in which it had resolved to conduct itself would be damaging to relationships between the Commonwealth and a State. Nor, contrary to the respondent’s submissions, could it be reasonably held that a participant in the National Cabinet would feel some inhibition in contributing to the discussions at the meetings by reason of the Terms of Reference upon which the National Cabinet had agreed being publicly available. On the contrary, the disclosure of minutes with this content is likely to assist in the achievement of the objects of the FOI Act, particularly that stated in s 3(2).
Items 8 and 10 in the minutes of 15 March 2020 concern only the agreement on the time of future meetings of the National Cabinet. It could not reasonably be held that disclosure now of those details would cause damage to the relations between the Commonwealth and a State.
Items 2‑7 in the Minutes of the meeting on 15 March 2020 concern matters which are beyond the bounds of the applicant’s second request for documents on 10 July 2020. The respondent drew attention in this circumstance to s 22 of the FOI Act which provides, in effect, for access to be given to an edited copy of the document, that is, edited so as to exclude the portions which are irrelevant to the applicant’s request. I am satisfied that s 22 is applicable in this case so that the applicant may be provided with a copy of the minutes of 15 March 2020 comprising only Items 1, 8, 10 and Attachment A. Counsel for the applicant did not submit to the contrary.
In summary, I am satisfied that s 47B(a) does not apply to any of the subject documents. Accordingly, they are not “conditionally exempt” with the consequence that it is not necessary for the Tribunal to consider the application of s 11A.
Conclusion
For the reasons given above, I am satisfied that none of the subject documents is an official record of a committee of the Cabinet and accordingly exempt from production by reason of s 34(1)(b) of the FOI Act. I am also satisfied that none of the subject documents is, by reason of s 47B(a) of the FOI Act, a conditionally exempt document. At the very least, I am satisfied that the respondent has not discharged the onus of establishing that the decisions of Mr Hupalo refusing the applicant access to the documents were justified or that the Tribunal should give a decision adverse to the applicant.
Decision
The decisions under review, namely, the decisions of Mr Hupalo of 6 and 10 August 2020 respectively, are set aside. The Tribunal orders that the applicant be granted access to:
(a)the documents sought in his letter of request of 10 July 2020 which is the subject of AAT 2020/5875; and
(b)the documents sought in his letter of request of 10 July 2020 which is the subject of AAT 2020/5876, other than those sought in paragraph 1 of the letter and the Cabinet Handbook (it having already been provided to the applicant) and other than Items 2‑7 in the Minutes of the meeting on 15 March 2020.
The respondent sought a stay of an order granting access so as to “avoid the operation” of s 44A(1) of the AAT Act pending an appeal to the Federal Court. As the parties did not make submissions with respect to that application, I will give them the opportunity to do so.
I certify that the preceding two hundred and seventy‑eight (278) paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice White.
...............................[SGND]...........................
Associate
Dated: 5 August 2021
Date of hearing: 19 May 2021 Counsel for the Applicant:
Mr G Watson SC
Ms D TangCounsel for the Respondent Mr A Berger QC
Australian Government Solicitor
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