Patrick and Secretary, Department of the Treasury (Freedom of information)
[2024] AATA 545
•28 March 2024
Patrick and Secretary, Department of the Treasury (Freedom of information) [2024] AATA 545 (28 March 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2023/3711
Re:Rex Patrick
APPLICANT
AndSecretary, Department of the Treasury
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:28 March 2024
Place:Adelaide
The decision under review is set aside with an order in substitution that the applicant is entitled to access pages 1 and 2 of the document in issue.
..............................[sgd]..........................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – s 47C conditional exemption applied to identified document in issue – deliberative processes – public interest test – decision set aside and substituted.
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962
Fountain v Alexander (1982) 150 CLR 615 at 629Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645, 661
New South Wales v Ryan (1998) 101 LGERA 246
Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211 at 225
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
Secondary Materials
FOI Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, November 2023
REASONS FOR DECISION
Deputy President Britten-Jones
The applicant made a request to the respondent under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to ‘any ministerial briefs provided by Treasury to the Treasurer since 23 May 2022 that … go to the Stage 3 Tax Cuts.’[1] In response, the respondent identified one document to which it refused access pursuant to s 47E(d) of the FOI Act.[2] The respondent now claims it is exempt from disclosure under s 47C of the FOI Act.
STATUTORY FRAMEWORK
[1] Exhibit 1, T4, 14.
[2] Ibid, T3, 9.
Freedom of Information Act 1982
The High Court considered the legislative framework of the Act in Kline v Official Secretary to the Governor-General: [3]
… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[3] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the Act are set out in s 3 as follows:
(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.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
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).If a document is exempt, the agency is not required to provide the document.
Section 47C Public interest conditional exemptions – deliberative processes
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 [2015] AATA 962 at [18], 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.’
The FOI Guidelines (the 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.
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.
Section 11B(3) outlines the public interest factors in favour of granting access to the document including whether the grant would:
(a)promote the objects of the 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.
Under s 11B(4), a decision maker must not take the following factors into account when determining whether the release of a document would be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
The respondent must give the applicant access to the conditionally exempt document 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.[4]
[4] 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.
Section 93A requires the Tribunal to have regard to any guidelines issued by the Information Commissioner. Paragraphs 6.5 and 6.6. of the 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.
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.[5] 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.
[5] 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.
CONSIDERATION
Is Document Conditionally Exempt Under s 47C?
On 15 June 2022, shortly after the change of government on 22 May 2022, an adviser from the office of the Treasurer wrote by email to the Department of Treasury advising that the Treasurer was interested in a few costing ‘rule of thumbs’ with respect to the stage 3 tax cuts.[6] The stated purpose of the Treasurer’s interest was to inform his deliberations at the Expenditure Review Committee of Cabinet or with other Ministers. The email requested an ‘information brief’ within a fortnight.
[6] Exhibit 11 is the redacted version of the 15 June 2022 email.
Treasury officials in the Tax Analysis Division (which is in the Revenue Group of Treasury) provided a response in the form of a ministerial submission on 1 July 2022. This is the document in issue.
The historical context is that the Australian Labor Party had been elected to form government on 22 May 2022. At the time the document in issue was created, the new Government had indicated that it would deliver a budget in October 2022, instead of waiting until early May of the following year which is the usual date for delivery of the annual budget. The previous government had introduced legislation in 2018 which included what became known as the Stage 3 tax cuts which were due to take effect from 1 July 2024. The Stage 3 tax cuts had three primary elements:[7]
(a)reduction of the 32.5 per cent tax rate to 30 per cent;
(b)abolition of the 37 per cent tax rate; and
(c)increase the threshold for the top 45 per cent tax rate from $180,000 to $200,000.
[7] Exhibit 6.
Before considering whether the document in issue is conditionally exempt, I will make some comments about the affidavit affirmed by Laura Berger-Thomson on 11 September 2023. Ms Berger-Thomson is the First Assistant Secretary, Personal and Indirect Tax and Charities Division, part of the Revenue Group, at the Department of Treasury. She has held this role since May 2022.
Ms Berger-Thomson deposed in her affidavit that the document in issue:
(a)was prepared to enable the Treasurer to understand potential pressures on the Budget and consider costings relevant to those Budget pressures both within and beyond the Treasury portfolio;[8]
(b)was prepared in response to a request from the Treasurer’s office for briefings that would inform Treasurer’s deliberations at the Expenditure Review Committee of Cabinet;[9]
(c)presents indicative and preliminary costings relating to the Stage 3 tax cuts and other matters;[10]
(d)is a document which supported the Treasurer’s understanding of issues that provided part of the backdrop to the federal budget deliberations of Cabinet.[11]
[8] Exhibit 4, [12].
[9] Ibid.
[10] Ibid, [13].
[11] Ibid, [14].
Ms Berger-Thomson deposed by way of further explanation that the costings:
(a)are a required input for any new policy proposal;[12]
(b)in this context are Treasury estimates of the financial impact – the change in government revenue and/or expenditure – of possible changes in, or the implementation of existing, Government policy;[13]
(c)were intended to provide the Treasurer with a sense of the magnitude of estimated financial impacts.[14]
[12] Ibid, [21].
[13] Ibid, [22].
[14] Ibid.
Further historical context provided by Ms Berger-Thomson is that the ‘briefing’ contained in the document in issue was not given at a time when the issues it canvassed were on the Cabinet agenda,[15] and it did not respond to a particular Cabinet submission or new policy proposal.[16]
[15] Ibid, [14].
[16] Ibid, [24].
After the lodging of the review application but before this hearing, the government announced its policy to amend the Stage 3 tax cuts by not implementing them in their entirety. Ms Berger-Thomson accepted during her oral evidence that the announcement of this policy rendered less relevant her opinion in paragraph 26 of her affidavit as to sensitivity of forward budget considerations. I note that after this hearing the amendments to the Stage 3 tax cuts were passed into law,[17] which denied the applicant, if successful on this application, the opportunity to present the document in issue as part of any debate about the merits of amending the Stage 3 tax cuts before they became law.
[17] On 27 February 2024, Parliament passed the Treasury Laws Amendment (Cost of Living Tax Cuts) Bill 2024 (the Bill) containing the Government's revisions to the Stage 3 personal tax cuts, which take effect from 1 July 2024,
Based upon the affidavit and documentary evidence, I make the following findings:
(a)On 15 June 2022, the Treasurer requested the Department of Treasury to provide an information brief of costings relating to the Stage 3 tax cuts for the purpose of informing the Treasurer’s deliberations at the Expenditure Review Committee of Cabinet.
(b)It was commonly known that the Stage 3 tax cuts had three primary elements:
(i)reduction of the 32.5 per cent tax rate to 30 per cent;
(ii)abolition of the 37 per cent tax rate; and
(iii)increase the threshold for the top 45 per cent tax rate from $180,000 to $200,000.
(c)The briefing from the Department of Treasury was provided in the form of a ministerial submission which contained indicative and preliminary costings which estimated the magnitude of the financial impact on government revenue of implementing or changing any or all of the elements of the Stage 3 tax cuts.
(d)The costings were a required input for a new policy proposal which, I infer, was put before the Expenditure Review Committee and Cabinet. The government then announced a policy to amend the Stage 3 tax cuts and on 27 February 2024 those amendments became law to take effect from 1 July 2024.
Ms Berger-Thomson said in her first affidavit that, in general terms, the document in issue presents Treasury’s preliminary analysis of a range of policy issues relevant to budget pressures.[18] She then goes a step further and says that the provision of advice on indicative policy costings is an essential part of Treasury’s role in supporting the Treasurer,[19] which, as a general statement, is no doubt true, but in this case is not applicable because the document in issue was directed to and contained costings of the financial impact of a future change to the taxation regime in Australia.
[18] Ibid, [14].
[19] Ibid, [23].
The Department of Treasury was asked to provide costings in an information brief so that the newly appointed Treasurer could understand the financial impact of a change to tax legislation which was to take effect in the future. The email of 15 June 2022 did not request advice with respect to a proposed policy. No advice was given about the benefits or detriments of implementing or changing the Stage 3 tax cuts. There is no narrative as to policy considerations; rather, there is revenue and costings data showing the impact of the Stage 3 tax cuts as legislated by the previous government. As Ms Berger-Thomson says – ‘This then informs the advice the Treasurer gives to ERC and the wider Cabinet.’[20] – but I consider it would be wrong to describe the provision of relatively simple costings of the Stage 3 tax cuts as the provision of advice.
[20] Ibid, [23].
My finding that the document in issue does not contain advice renders less relevant that part of Ms Berger-Thomson’s affidavit dealing with the consequences of disclosing the document in issue. If sensitive and confidential advice given in the context of the relationship of trust and confidence between the Treasurer and Treasury officials were disclosed, then the consequences would be detrimental. The same cannot be said with respect to disclosure of costings of tax cuts legislated by a previous government.
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 (2001) 114 FCR 301 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.
The use of the expression ‘relating to’ denotes some connection or relationship. It is ‘an expression of wide and general import’[21] which gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends’.[22] Overall, the position judicially adopted has been that the operation of the expression ‘relating to’ is determined by the statutory context and purpose.[23]
[21] Fountain v Alexander (1982) 150 CLR 615, 629.
[22] Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 when considering the expression ‘in respect of’.
[23] Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211, 225.
The document in issue was prepared for the purpose of a deliberation with respect to the Stage 3 tax cuts. The actual deliberation would not be revealed by the disclosure of the document but its contents have a sufficient connection to the deliberation so as to come within the broad application of s 47C. As Ms Berger-Thomson said, the document was provided as ‘part of the backdrop to the federal budget deliberations of Cabinet’ even though Cabinet submissions had yet to be prepared at that stage.[24]
[24] Exhibit 4, [14].
Is Disclosure of Document Contrary to Public Interest?
The respondent relies upon the evidence of Ms Berger-Thomson that giving access to the document would be contrary to the public interest. Appropriate weight should be given to her evidence,[25] but I am required to reach my own view as to the public interest.
[25] New South Wales v Ryan (1998) 101 LGERA 246.
The respondent contends that the public interest factors against disclosure include:[26]
30.1. undermining the relationship of trust and confidence between the Treasurer and Treasury officials that is essential to the effective performance of the Treasurer’s function of delivering sound fiscal policy
30.2. inhibiting the confidence of the Treasurer and his office to seek explicit advice intended to inform the Treasurer’s input to confidential deliberations of the ERC or the Cabinet if the capacity to protect the advice in the same way as the deliberations of Cabinet is not available
30.3. adversely impacting the way policy costing advice is prepared in future to be less detailed if Treasury could no longer prepare and engage in developing advice and analysis on the presumption they are a confidential communication within government. Policy advice would be prepared in a much flatter, less targeted way, if prepared at all
30.4. limiting the range and quality of information provided to inform policymaking and the analysis for a range of potential future impacts. This is to the ultimate detriment of the Australian public if the advice to the Treasurer and government is less effective in detailing costings and implications, and
30.5. undermining good public administration and effective decision-making by the Treasurer and Cabinet.
[26] Respondent’s Statement of Facts, Issues and Contentions dated 11 September 2023, 6-7 (citations omitted).
The respondent says that the document in issue serves a very similar role to sensitive parts of an incoming government brief in government deliberations and relies upon Dreyfus and Secretary Attorney-General’s Department [2015] AATA 962 in which Bennett J observed:
[107] In this case, the combination of factors against release in the public interest include the nature of an IGB to a new Minister in a newly elected incoming Government, the evidence of Mr Sheehan explaining the importance of the maintenance of confidentiality on not only the content of this IGB but also on the preparation of future IGBs, the need for continuity of frankness, candour and completeness in the advice and commentary contained in IGBs, the extent of deliberative matter contained in such a document and the impact on the preparation of future IGBs if access were granted. While none of these factors standing alone may be sufficient to outweigh the public interest in access, the factors against release are cumulative and it is that accumulation that tips the balance against access being granted. This is not a document of a nature that is prepared just once. Further, it is an IGB prepared for a new Minister in a new Government. The factors raised by Mr Sheehan and the Secretary, on balance, outweigh the public interest factors that favour access. As the Commissioner said, the IGB was prepared in a specific context, as summarised at [73] above. Such a context requires preparation of the document unhindered by apprehension that the IGB, prepared as a confidential brief to an incoming new Attorney-General, will be released. These factors were relevant when the IGB was being prepared and remain relevant today.
These contentions of the respondent incorporate what have been described as ‘frankness and candour’ claims together with a contention that the document in issue has a connection with Cabinet, albeit not direct. The Guidelines comment specifically on ‘frankness and candour’ claims and on the interaction with the Cabinet documents exemption:
Inhibition of frankness and candour
6.79 Previously, a common factor considered to weigh against disclosure of internal working documents was that disclosure would inhibit frank and candid advice from public servants in the future. Frankness and candour claims were given weight by decisions such as Re Howard and the Treasurer (discussed above at [6.78]) However, a finding that disclosure of deliberative material would pose a risk to the frankness and candour has been significantly affected by the 2010 reforms to the FOI Act, as demonstrated by a number of post reform AAT and Information Commissioner decisions.
6.80 The AAT has said that there is an ‘essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government’s activities and ensuring that government may function effectively and efficiently’.
6.81 In Rovere and Secretary, Department of Education and Training [2015] AATA 462, the AAT said that in relation to pre-decisional communications, a frankness and candour claim cannot be a public interest factor against access. The Information Commissioner reads Rovere as authority that a confidentiality or candour claim carries no weight by itself but must be related to some particular practice, process, policy or program in government.
6.82 The Information Commissioner considers that frankness and candour in relation to the s 47C conditional exemption may have some application as one public interest factor against disclosure in combination with other factors, and possibly as the sole factor where the public interest is clearly, heavily weighted against disclosure of a document of a minister, or a document that would affect the effective and efficient functioning of government.
6.83 Agencies should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.
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.
6.85 While frankness and candour claims may still be contemplated when considering deliberative material and weighing the public interest, they should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.
Interaction with Cabinet documents exemption
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 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.
6.87 Even if Government has not announced a decision on the issue, disclosure of such a document is less likely to be contrary to the public interest if it is public knowledge that the Government considered or is considering the issue. The key public interest consideration in both situations is to assess whether disclosure would inhibit the Government’s future deliberation of the issue.
6.88 Examples of non-sensitive matter in this context include information that is no longer current or that is already in the public domain, or information that provides a professional, objective analysis of potential options without favouring one over the other.
I do not accept the submission of the respondent that disclosure of the document in issue would inhibit frank and candid advice from public servants in the future. The concerns expressed by Ms Berger-Thomson about the consequences of disclosure are not applicable because of the nature of this particular document. As I have found, the document does not contain any deliberations of government, but rather has a connection to later deliberations for which it was prepared. The document is not in the nature of an incoming government brief because it does not provide a narrative of advice or commentary.
The Treasury costings were intended to provide the Treasurer with a sense of the magnitude of estimated financial impacts of the Stage 3 tax cuts. Matt Grudnoff, a senior economist at the Australia Institute called as a witness by the applicant, explained how modelling software is used to generate those costings. At paragraph 12 of his statement,[27] he says:
Once the decision on the change in taxation is made, the process is simply a mathematical one as the tax models algorithms take taxation changes and possible future economic scenarios and from that produce factual costings.
[27] Exhibit 3.
The costings which estimate the financial impact of the legislated Stage 3 tax cuts are not sensitive because they are based on mathematics. For that same reason, there is no scope for a less fulsome response or a lack of candour by the Treasury officials that model the tax cuts. I reject the respondent’s contention that costings would be less detailed, or prepared in a less targeted way, if their confidentiality could not be maintained. It is the role of Treasury officials to provide costings and I have no doubt that they would continue to undertake that role even if their costings were disclosed.
This is not a case where a new policy proposal is being costed and the disclosure of the costings would have the effect of disclosing the proposed policy. In this case the government was elected and wanted a costing of the Stage 3 tax cuts that they had inherited from the previous government. Further, as set out in the Guidelines, disclosure in this case would be less likely to be contrary to the public interest because the document contains non-sensitive matter about a policy development process that has been finalised with the policy announced and the amendments passed into law.
Once it is understood that the document in issue provides a costing of Stage 3 tax cuts then it becomes difficult to identify any public interest which would favour not disclosing the document. I do not consider that the disclosure of the costings in the document in issue would cause any harm or detriment to the relationship between the Department of Treasury and the Treasurer. Public servants including Treasury officials are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities. They 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.
However, there are very significant public interest factors in favour of disclosure.
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 accept the applicant’s contention that the factors in s 11B(3)(a), (b) and (c) all favour access. Disclosure of the document 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 agree with the observation of Mr Grudnoff that ‘it is important for economic research to be transparent in its data, assumptions and conclusions.’[28] The same applies to the mathematical analysis contained in the modelling of costings in the document in issue.
[28] Witness statement of Matt Grudnoff dated 9 October 2023, [13].
I consider that disclosure of the documents would inform debate on a matter of public importance. The Stage 3 tax cuts had an impact on the majority of taxpayers and on the economy more generally. They were the topic of much media controversy, which reflected their importance to the public.
I consider that disclosure of the documents would promote effective oversight of public expenditure and revenue raising.
Balancing the public interest
The factors that favour access outweigh significantly any countervailing factor. 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 document in issue to the applicant.
Irrelevant material
Section 22(1) of the FOI act provides:
(1) This section applies if:
(a) an agency or Minister decides:
(i)to refuse to give access to an exempt document; or
(ii)that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i)access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii)the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i)the nature and extent of the modification; and
(ii)the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
The 15 June 2022 email from the office of the Treasurer noted the Treasurer’s interest in numerous topics in addition to the Stage 3 tax cuts. Consequently, the ministerial submission in response contains material which does not relate to the Stage 3 tax cuts and which is beyond the scope of the applicant’s request.
Section 22 applies because I have decided that giving access to the document in issue would disclose information that would reasonably be regarded as irrelevant to the applicant’s request. This additional information should be redacted as irrelevant under s 22 of the FOI Act. The information which is relevant to the applicant’s request is contained in pages 1 and 2 of the Ministerial submission. Access will be granted to that part of the document in issue.
TRIBUNAL DECISION
I have found that the document in issue is conditionally exempt under s 47C but that on balance the public interest weighs in favour of release. The decision under review is set aside with an order in substitution that the applicant is entitled to access pages 1 and 2 of the document in issue.
57. I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
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Associate
Dated: 28 March 2024
ANNEXURE A.
Exhibit List
Party Tendering Description Exhibit Respondent T-documents T1 to T8 1 Applicant Witness Statement of Rex Patrick dated 9 October 2023 together with annexures in two parts 2 Applicant Witness Statement of Matt Grudnoff dated 9 October 2023 together with annexures 1 to 3 3 Respondent Affidavit of Laura Berger-Thomson affirmed 11 September 2023 together with annexure LBT-1 4 Respondent Supplementary Affidavit of Laura Berger-Thomson affirmed 30 October 2023 together with annexure LBT-2 5 Respondent Document from Department of Treasury Website dated 25 January 2024 regarding Stage 3 Tax Cuts 6 Respondent FOI 3455 Document 1 dated 26 July 2023 7 Respondent FOI 3401 Documents 1 and 2: Internal treasury email dated 2 May 2023 together with Table 8 Respondent FOI 3492 Documents 1 to 4 and 10, Ministerial submissions 9 Respondent [Document subject to s 35(4) order of Tribunal] 10 Respondent Redacted version of 15 June 2022 email 11
0
8
0