Patrick v The State of South Australia - [2025] SASCA 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
PATRICK v THE STATE OF SOUTH AUSTRALIA
[2025] SASCA 108
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Stanley)
25 September 2025
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS - OTHER STATES AND TERRITORIES
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - CABINET AND EXECUTIVE COUNCIL DOCUMENTS
Appeal against a decision of the President of the South Australian Civil and Administrative Tribunal (‘Tribunal’), affirming a decision of the Ombudsman to refuse access to documents pursuant to the Freedom of Information Act 1991 (SA) (‘FOI Act’).
The applicant sought documents relating to the Northern Water Supply Project from the Department of the Premier and Cabinet (‘Department’) under the FOI Act. The Department identified 18 documents in response to the application. The Department determined that the documents were exempt from release under cl 1(1)(a) and cl 1(1)(e) of the FOI Act on the grounds that they were prepared specifically for submission to Cabinet and/or would disclose information concerning deliberations or decisions of Cabinet.
The applicant sought an internal review by the Department and then an external review by the Ombudsman. Both affirmed the Department’s decision in substance. The applicant then sought review of the Ombudsman’s decision by the Tribunal. This appeal concerns the Tribunal’s order affirming the Ombudsman’s decision, in relation to documents 6, 14 and 15.
The grounds of appeal complain that the President erred in finding Documents 6, 14 and 15 to be exempt from disclosure on the basis that:
1.Document 15, as an attachment to a document submitted to a Cabinet taskforce meeting, had been specifically prepared for submission to Cabinet, pursuant to cl 1(1)(a);
2.Document 15 contained matter that would, if disclosed, disclose information concerning a deliberation or decision of Cabinet in the sense in which that expression is used in cl 1(1)(e);
3.Document 6, as an attachment to a document submitted to a Cabinet taskforce meeting, had been specifically prepared for submission to Cabinet, pursuant to cl 1(1)(a);
4.Document 6 contained matter that would, if disclosed, disclose information concerning a deliberation or decision of Cabinet in the sense in which that expression is used in cl 1(1)(e); and
5.Document 14 contained matter that would, if disclosed, disclose information concerning a deliberation or decision of Cabinet in the sense in which that expression is used in cl 1(1)(e).

Held (by the Court), dismissing the appeal:
1.The word ‘concerning’ in cl 1(1)(e) of the FOI Act extends the reach of the exemption beyond documents the disclosure of which would disclose the actual deliberations or decisions of Cabinet.
2.Documents disclosing information that is the subject matter of Cabinet deliberations may be exempt if it is identifiable as the subject matter of Cabinet deliberations.
3.Identification may be made on the face of the document or by reference to publicly available extrinsic information which, when read together with the document, reveals material to be the subject matter of Cabinet deliberations.
4.Document 15 is exempt from disclosure as it was specifically prepared for consideration by the Cabinet (cl 1(1)(a)) and its disclosure would disclose information concerning Cabinet deliberations (cl 1(1)(e)).
5.Document 6 is exempt from disclosure as it was specifically prepared for submission to Cabinet pursuant to cl (1)(a) and its disclosure would disclose information concerning Cabinet deliberations (cl 1(1)(e)).
6.Document 14 is exempt from disclosure as its disclosure would disclose information concerning Cabinet deliberations (cl 1(1)(e)).

Freedom of Information Act 1982 (Cth) s 34; Freedom of Information Act 1989 (NSW) sch 1 cl 1(e); Freedom of Information Act 1991 (SA) ss 3, 3A, 12, 13, 19, 20, 39, 40; sch 1 cll 1(1)(a), 1(1)(e), 1(1)(f), 1(2)(a); Freedom of Information Act 1982 (Vic) s 28; Infrastructure SA Act 2018 (SA) s 5(1); Legislation Interpretation Act 2021 s 14; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71, referred to.
Accident Compensation Commission v Croom [1991] 2 VR 322; Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469; Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; Commonwealth v Northern Land Council (1991) 30 FCR 1; Commonwealth v Northern Land Council (1993) 176 CLR 604; CPB Contractors Pty Ltd and Hansen Yunken Pty Ltd v South Australia [2024] SASCA 130; Daycorp Pty Ltd v Parnell [2011] SADC 191; Department of Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56; Department of Treasury and Finance v Mullighan [2021] SACAT 28; Egan v Chadwick (1999) 46 NSWLR 563; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Harbors Corporation (Qld) v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Hospitals Contribution Fund of Australia v Hunt (1983) 76 FLR 408; Howell v Macquarie University [2008] NSWCA 26; Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (SA) (1997) 192 LSJS 54; Koowarta v Bjelke Petersen (1988) 92 FLR 104; Ku-ring-gai Council v Garry (2017) 95 NSWLR 1; Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64; Northern Land Council v The Commonwealth (1990) 24 FCR 576; Patrick v South Australian Fire and Emergency Services Commission [2022] SACAT 17; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Rann v SA Water & Baker (No 2) (1996) 187 LSJS 438; Sankey v Whitlam (1978) 142 CLR 1; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17; Secretary, Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96; Sobh v Police Force of Victoria [1994] 1 VR 41; South Australia v Brokenshire [2015] SADC 68; Spencer v Commonwealth (2012) 206 FCR 309; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Warren v Chief Executive Officer, Services Australia (2024) 305 FCR 268; Zeitouneh v Police (SA) [2015] SADC 34, considered.

PATRICK v THE STATE OF SOUTH AUSTRALIA
[2025] SASCA 108
Court of Appeal – Civil: Livesey P, Bleby and Stanley JJA

THE COURT: This is an application for leave to appeal against a decision of the President of the South Australian Civil and Administrative Tribunal (‘the Tribunal’), pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). The President substantively affirmed a decision by the Ombudsman to refuse the applicant access to documents sought from the Department of the Premier and Cabinet (‘Department’) pursuant to the provisions of the Freedom of Information Act 1991 (SA) (‘FOI Act’).
The Department identified 18 documents in response to the initial application under the FOI Act. The amended grounds of appeal concern only four of these, being Documents 6, 11, 14, and 15. In the course of preparing for the appeal, the Department became aware that Document 11 was already in the public domain. It provided that document to the applicant. This appeal is therefore concerned only with Documents 6, 14 and 15.
The applicant’s Notice of Appeal complains, broadly, that the President erred in concluding:
1.in effect, that documents 6 and 15 had been specifically prepared for submission to Cabinet and therefore exempt pursuant to cl 1(1)(a) of Schedule 1 to the FOI Act (Grounds 1 and 3); and
2.that documents 6, 14 and 15 contained matter that would, if disclosed, disclose information concerning a deliberation or decision of Cabinet in the sense in which that expression is used in cl 1(1)(e) of Schedule 1 to the FOI Act (Grounds 2, 4 and 5).
Clause 1 of Schedule 1 provides, relevantly:
1—Cabinet documents
(1)     A document is an exempt document—
(a)     if it is a document that has been specifically prepared for submission to Cabinet (whether or not it has been so submitted); or
(b)     if it is a preliminary draft of a document referred to in paragraph (a); or
(c)     if it is a document that is a copy of or part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(e)     if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet; or
(f)     if it is a briefing paper specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted to Cabinet.
(2)A document is not an exempt document by virtue of this clause—
(a)     if it merely consists of factual or statistical material (including public opinion polling) that does not—
(i)disclose information concerning any deliberation or decision of Cabinet; or
(ii)relate directly to a contract or other commercial transaction that is still being negotiated; or
(ab)   merely because it was attached to a document described in subclause (1); or
(b)     if 20 years have passed since the end of the calendar year in which the document came into existence.
…
The appeal raises issues of construction of cl 1(1)(e) and the application of that clause, and of cl 1(1)(a), to the three documents.
Background
On 8 June 2023, the applicant, jointly with Eyre Peninsula Seafoods, applied to the Department of Premier and Cabinet (‘the FOI request’) pursuant s 13 of the FOI Act requesting documents relating to:
1.Any ministerial briefings received by the Department of Premier and Cabinet (either for the Department or the Premier) since 21 March 2022 that relate to a Desalination plant to meet Port Lincoln’s immediate water needs.
2.Any correspondence received from or sent to the Minister for Climate, Environment and Water since 21 March 2022 that relate to a Desalination plant to meet Port Lincoln’s immediate water needs.
3.Any substantive reports/briefs generated by Infrastructure SA in relation to the Northern Water Supply Project.
…
Date range - 21/03/2022 to 08/06/2023
The documents sought by the applicant in these categories relate to the Northern Water Supply Project (‘the Project’). The Department indicated that it held 18 documents answering the request. The Project involves planning for the construction and operation of desalination infrastructure, water transfer pipelines and ancillary infrastructure for the supply of water to a range of consumers from the Eyre Peninsula to the Upper Spencer Gulf. The Project includes a proposal for a desalination plant to service the City of Port Lincoln.
Infrastructure SA is a statutory agency and the lead agency in relation to the Project. Section 5(1) of the Infrastructure SA Act 2018 (SA) provides that the objects of Infrastructure SA include: (a) to promote such efficient, effective and timely coordination, planning, prioritisation, delivery and operation of infrastructure as is necessary for the economic, social or environmental benefit of the State; and (b) to promote the adoption and use of policies, practices, information and analysis to support sound decision-making in relation to infrastructure.
The Infrastructure SA Assurance Framework (‘Assurance Framework’) is a publicly available document. This assumed some significance on the appeal as providing relevant context for the characterisation of the documents. The Assurance Framework articulates Infrastructure SA’s function of reviewing, analysing and providing advice on a continuing basis to ensure Cabinet can make informed decisions relating to large major projects. In this capacity, Infrastructure SA provided analysis, recommendations and advice to Cabinet and its committees through the progression of the Project.
The documents relate to planning and proposals before the making of final decisions by Cabinet in regard to the Project. Documents 1-8, 10 and 15‑18 are Cabinet Submissions or Cabinet Notes and their attachments. They were considered at identified meetings of Cabinet or one of its committees or taskforces. The documents relevant to this appeal may be described as follows:
Document 6: Strategic Case for Water Supply
Document 14: ISA-02-06 NWSP Desalination Plant Relocation to Cape Hardy – R1- Final, Attachment to Document 9
Document 15: Report – Northern Water Business Case
The respondent submitted that, consistent with the Framework and the processes to be expected for Government proposals on the scale of the Project, the documents reveal the ‘extensive involvement of Cabinet and its committees and taskforces throughout the relevant period’. The documents demonstrate that Cabinet maintained oversight of the development of the Project proposal throughout the period encompassed by the FOI request. The respondent contended that it is possible to track the development of the Project by reference to the documents.
Department Determination
On 5 July 2023, the Department determined that the documents were exempt from release on the basis that they were specifically prepared for submission to Cabinet and/or would disclose information concerning deliberations or decisions of Cabinet.
The applicant and Eyre Peninsula Seafood sought internal review of the Department’s determination. On 23 August 2025, following an internal review, the Chief Executive of the Department affirmed the original determination and further determined that various other exemptions also applied to the documents.
Ombudsman Review
The applicant and Eyre Peninsula Seafoods sought external review of the Department’s decision by the Ombudsman pursuant to s 39 of the FOI Act. On 16 May 2024, following the receipt of submissions from the parties, the Ombudsman substantially upheld the Department’s determination, varying it to the extent of determining that Documents 3 and 15 were partially exempt. She upheld the determination that Documents 1, 2, 4-14 and 16-18 were fully exempt. The partial exemption was on the basis that some parts of the relevant documents were already publicly available. The Ombudsman otherwise upheld the Department’s determination in respect of the documents the subject of this appeal.
Tribunal Review
The applicant applied for further review to the Tribunal under s 40(2)(c) of the FOI Act. The role of the Tribunal on review was to reach the correct and preferable decision in respect of the matter decided by the original decision maker.
The respondent filed open and closed affidavits of Ms Elspeth Brown, the Director of Cabinet Office and Mathew Hardy, Chief Executive of Northern Water Delivery. Ms Brown also gave oral evidence. The President summarised Ms Brown’s open affidavit evidence which provided context regarding the operation of Cabinet in South Australia:[1]
a.The deliberations and decisions of Cabinet are informed by documents in two broad categories: submissions and notes. These documents are prepared on templates. The submission or note may have attachments which are not part of the template. The attachments may be reports, analysis, data or opinions relied upon in the contentions of the submission or note;
b.Matters are brought to Cabinet for “approval, noting, direction or discussion” for a variety of reasons including for the creation or changing of state policy positions. A new or changed Government position may involve issuing instructions for the drafting of legislation or regulations. It may entail approval and monitoring of significant projects, approval of negotiating parameters and strategies for enterprise agreements, agreeing to an approach to commercial negotiations, and approving contracts and procurements. A Minister may take a submission to Cabinet to bring to Cabinet’s attention matters of significance to the community or the state’s interests, or which expose the state to financial, legal, operational or reputational risk.
c.Cabinet committees are comprised of a subset of the Ministers and meet separately from the “full” Cabinet. The activities of Cabinet committees, sub-committees of Cabinet committees and Cabinet task-forces follow the same conventions and practices as the “full” Cabinet in terms of the manner in which information is provided to the committee, its confidentiality, and the recording of its deliberations;
d.Outcomes of deliberations are recorded and include approval of recommendations, approval of recommendations as amended by Cabinet, deferral, or withdrawal. The record of the decision is made on the copy of the submission or note that is retained by Cabinet office; and
e.The only public sector employee to attend Cabinet regularly is the Chief Executive of the Department of Premier and Cabinet, or his or her nominee.
(References omitted)
[1] Order of the Tribunal at [17].
The applicant submitted to the Tribunal that the Ombudsman erred in concluding that these documents were exempt pursuant to cl 1(1)(e). He argued that the decisions of the Tribunal in Department of Treasury and Finance v Mullighan[2] and Department of Premier and Cabinet v van Holst Pellekaan,[3] on which the Ombudsman relied, were incorrect. He submitted, contrary to these decisions, that the scope of protection afforded by clause 1(1)(e) was limited to documents that recorded the views that will be or have been expressed by a Minister or Cabinet collectively in deliberations that take place in the Cabinet decision-making process, or a Cabinet decision.
[2] [2021] SACAT 28.
[3] [2018] SACAT 56.
In Mullighan, the Tribunal had said, relevantly:[4]
The ‘information’ referred to in clause 1(1)(e) and to which the decision-maker must turn his or her mind, must concern a Cabinet deliberation or decision (or several).
Looking to the words of the provision, there is no requirement of any sufficiency of relationship between the information and a deliberation or decision. There is no constraint on the proximity of the relationship between the information in the document proposed for release and the Cabinet deliberation or decision. It need not “shape” the deliberation or decision.
Proximity is not a relevant criterion.
Again, from a plain reading of the words of the provision, there is no qualitative aspect of the exemption with respect to the value of the information disclosed. It is irrelevant that the disclosure may provide minimal illumination of the deliberation or decision.
The document need not disclose a deliberation or decision on its face but need only contain information which if disclosed, would have the effect that a deliberation or decision is revealed. That effect may be achieved by the disclosure of the document without reference to other information but there is not basis to confine it so. If the effect is achieved by reference to other information, the document will nevertheless be exempt.
[4] Department of Treasury and Finance v Mullighan [2021] SACAT 28 at [89]-[93].
The President was not satisfied that this approach was wrong. She held that the words, ‘information concerning’ must be given meaning,[5] and the construction contended for by the applicant gave them no work to do. The effect of those words was to broaden the class of document to which the exemption applied from those documents which, on their face, disclose a deliberation or decision of Cabinet, to those which contain information that concerns a deliberation or decision of Cabinet.[6]
[5] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[6] Order of the Tribunal at [73].

The President made a number of observations in reaching this conclusion. She considered, consistent with the Full Court’s reasoning in Attorney-General (SA) v Seven Network (Operations) Ltd,[7] that there was no basis for construing the Cabinet exemption in cl 1 of Sch 1 by reference to the purpose of maximising disclosure.[8] Further, she rejected the applicant’s argument that the meaning of the words in cl 1 could be discerned merely from an examination of the doctrine of Cabinet confidentiality.[9]
[7] (2019) 132 SASR 469.
[8] Order of the Tribunal at [58].
[9] Order of the Tribunal at [70].
The President also found that it was necessary that a document must concern a deliberation or decision of Cabinet, not merely the subject matter of such a deliberation or decision, for it to attract the exemption. She considered that a document upon which Cabinet has relied to reach its decision, or which has informed its deliberations is one that is likely to ‘concern the deliberation or decision’. On the other hand, a document that merely addressed the same subject matter but did not inform Cabinet’s deliberations would be unlikely to attract the exemption.[10]
[10] Order of the Tribunal at [75].
Having rejected the applicant’s contentions regarding the construction of cl 1(1)(e), the President nonetheless considered whether the documents fell within the exemption. She affirmed the Ombudsman’s decision. She further determined that documents 6 and 15 were also exempt under cl 1(1)(a) on the basis that they were specifically prepared for submission to Cabinet.
Before turning the questions arising on this appeal, it is convenient to set out the relevant legislative provisions of the FOI Act.
The legislative scheme
The FOI Act provides members of the public with a statutory right to access to specified documents held by a government agency in accordance with the Act.
Section 3 provides that objects of the FOI Act include:
3—Objects
(1)The objects of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament—
(a)     to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b)     to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2)The means by which it is intended to achieve these objects are as follows:
(a)     ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b)     conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c)     enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.
Section 3A sets out the principles relevant to the administration of the Act, which are to assist in its construction:
3A—Principles of administration
(1)     It is the intention of the Parliament—
(a)     that this Act should be interpreted and applied so as to further the objects of this Act; and
(b)     that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.
(2)     Agencies are to give effect to this Act in a way that—
(a)     assists members of the public and Members of Parliament to exercise rights given by this Act; and
(b)     ensures that applications under this Act are dealt with promptly and efficiently.
Section 12 provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act. Section 13 sets out requirements of an application to access an agency’s documents.
Section 19 requires that on receiving an application for access to documents, an agency is to determine whether to grant access to the documents sought, or to refuse access.
Section 20 provides that the agency may withhold a document if it is an exempt document. Schedule 1 of the Act sets out the categories of documents which are exempt from disclosure. As discussed earlier, this appeal primarily concerns the interpretation and application of cll 1(1)(a) and 1(1)(e) of Schedule 1, set out earlier.
The appeal
The construction of cl 1(1)(e)
The first question for determination relates to the proper construction of cl 1(1)(e) and, in particular, of the phrase, ‘information concerning any deliberation or decision of Cabinet’. This is, primarily, a question of scope. It became apparent during the course of argument that there was little, if anything, between the parties on the question of construction. The respondent submitted, and it may be the case, that the applicant’s submissions on construction had changed from those made before the Tribunal. In any event, it is necessary for this Court to indicate its view of the scope of the exemption in order to explain its conclusions on the application of the exemptions to the remaining documents in contention.
The general principles governing statutory construction are well established. Section 14 of the Legislation Interpretation Act 2021 (SA) provides that the interpretation that best achieves the purpose or object of the act is to be preferred against any other interpretation. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, the High Court said:[11]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(Footnote omitted)
[11] (2012) 250 CLR 503 at [39].
The High Court, in SZTAL v Minister for Immigration and Border Protection, added:[12]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(Footnotes omitted)
[12] (2017) 262 CLR 362 at [14].
The starting point of analysis is necessarily the statutory context in which the exemption appears. As is apparent from the sections extracted earlier, the FOI Act provides members of the public a qualified statutory right to obtain access to certain documents held by agencies. The legislative scheme is designed to provide access to information concerning the operations of government in order to promote openness in government and accountability of agencies. Any disclosure pursuant to the FOI Act must be taken to be disclosure to the world at large.
The FOI Act does not create a presumption in favour of disclosure; neither are the exemptions to be read down so as to maximise the incidence of disclosure. In Attorney-General (SA) v Seven Network (Operations) Ltd,[13] to which the President referred, the Full Court observed that:[14]
… the Act expressly provides the ‘means’ by which those objects are to be achieved. These include the recognition that, in the public interest, there will be restrictions imposed on access, namely, those restrictions that are ‘consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions)’. The restrictions on access countenanced by the Act are reflected in the exemptions in Sch 1 to the Act. The Attorney-General submits that it would be a mistake to countenance an approach to the interpretation of the Act that reads down the exemptions found in Sch 1 in pursuit of a generalised purpose of disclosure. This approach, described as ‘the leaning approach’, that is, leaning in favour of disclosure, has largely been rejected. The Full Court of the Federal Court in News Corporation Ltd v National Companies and Securities Commission (No 4) (News Corp)[15] (Bowen CJ and Fisher J) stated, in respect of the Commonwealth Freedom of Information Act:
In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.[16]
This statement has been applied as expressing the correct approach in interpreting the Act in South Australia.[17]
(Some footnotes omitted)
[13] (2019) 132 SASR 469.
[14] Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [67]-[68].
[15] News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64.
[16] News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66.
[17] Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (SA) (1997) 192 LSJS 54 at 60–61 (South Australian District Court) (Ipex); Daycorp Pty Ltd v Parnell [2011] SADC 191 at [33]–[35] (Daycorp); Zeitouneh v Police(SA) [2015] SADC 34 at [62]; South Australia v Brokenshire [2015] SADC 68 at [42] (Brokenshire) where Judge McIntyre said, relying on Ipex: “The assessment of whether disclosure would be contrary to the public interest involves the objective balancing of factors relevant to the public interest. This is an even balancing exercise; there is no presumption in favour of disclosure”.
The Full Court went on to note the subsequent application of the statement in News Corp in the Commonwealth FOI context[18] and the approach taken in New South Wales that an exemption should be construed ‘without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly’.[19] While the Court noted that there was authority in Victoria supporting a narrow reading of the exemptions,[20] it considered that by the South Australian FOI Act, the Legislature had ‘adopted a compromise between competing public interests and the compromise it has reached is to be identified and respected’.[21] That remains the case.
[18] See Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111.
[19] Howell v Macquarie University [2008] NSWCA 26 at [47] (Campbell JA, Spigelman CJ and Bell JA agreeing), referred to in Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [70].
[20] Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [71] fn 110, referring to Accident Compensation Commission v Croom [1991] 2 VR 322 at 323 (Young CJ); Sobh v Police Force of Victoria [1994] 1 VR 41 at 60–1 (Ashley J); Secretary, Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96 at 100 [13].
[21] Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [71]-[72].
We turn to some observations about the text of the exemption which, for the sake of convenience, we repeat here:
(e)if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet; or
The phrase ‘information concerning any deliberation or decision of Cabinet’ is, by use of the word ‘concerning’, broad. There is no textual reason to read the word, ‘concerning’ more narrowly than, say, the word, ‘regarding’.
The respondent compared this drafting with the comparable exemption contained in s 34(1)(d) of the Freedom of Information Act 1982 (Cth) (at the time it was enacted) and s 28(1)(d) of the Freedom of Information Act 1982 (Vic). In both of these Acts, an exemption applied to:
a document the disclosure of which would involve the disclosure of any deliberation of decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
(Emphasis added)
This formulation has been the subject of judicial consideration. Secretary to the Department of Infrastructure v Asher[22] concerned the Victorian exemption. Buchanan JA considered that the word ‘deliberation’ did ‘not ordinarily connote the subject matter of a debate, but rather the debate itself’.[23] That is, the exemption was concerned with Cabinet’s treatment of a subject matter. He continued:[24]
I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest.
That is not to say that a document supplied to Cabinet for its consideration could never be exempt as disclosing a deliberation of Cabinet. It all depends upon the terms of the document. At one end of the spectrum, a document may reveal no more than that a statistic or description of an event [that] was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet’s deliberations; the latter might say a great deal.
[22] (2007) 19 VR 17.
[23] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17 at [6].
[24] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17 at [7]-[8].
Similarly, Redlich JA held that a document would not attract the exemption if all it did was disclose the subject matter on which Cabinet may have deliberated.[25]
[25] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17 at [58].
It is perfectly understandable, with respect, that an exemption concerned with the disclosure ‘of’ any deliberation of Cabinet would be read as referring only to disclosure of the deliberation itself. More recently, the Full Federal Court, in Warren v Chief Executive Officer, Services Australia,[26] took the same approach in respect to the now amended, but similarly worded s 34(3) of the Commonwealth Act, which provides:
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.
[26] (2024) 305 FCR 268.
In Warren v Chief Executive Officer, Services Australia, McElwaine J said:[27]
Commencing with the plain meaning of the text, the provision is confined to information that is contained in a document which would reveal a deliberation or decision of the Cabinet. And it is only to that extent that the exemption applies. This requires focus on the content of the information that is contained in the document that is claimed to be exempt. For the exemption to apply it is that information which itself must reveal deliberations or decisions of the Cabinet. The document speaks for itself on that issue. No question of comparative analysis between the document and another which does contain the deliberation or decision of Cabinet arises. The exemption applies where the document discloses what Cabinet deliberated on or decided. The exemption does not apply where the information in the document concerns a topic that was deliberated on in Cabinet. Disclosure of subject matter, usually with supporting information or recommendations, does not of itself reveal the deliberation by Cabinet on that subject or the decision that is made. A document of that type may, however, be exempt on another basis, most notably s 34(1)(a) if submitted to Cabinet for consideration, or proposed by a Minister to be so submitted, and if it was brought into existence for the dominant purpose of submission for consideration by Cabinet.
(Emphasis added)
[27] Warren v Chief Executive Officer, Services Australia (2024) 305 FCR 268 at [143].
The text of the South Australian exemption appears, on its face, to apply more broadly than to resultant disclosures of Cabinet decisions or deliberations, extending to disclosures concerning such decisions or deliberations. The respondent submitted that a plain reading of ‘concerning’ would extend the reach of the exemption to the subject matter of deliberation, as well as procedural matters, such as when a topic was deliberated upon, and who was present at the deliberation.
We have no difficulty in accepting that the use in cl 1(1)(e) of ‘concerning’ indicates a broader reach to the exemption than is conferred by the word, ‘of’ in the Commonwealth and Victorian Acts. However, the analysis does not end there. First, and consistently with the observation of Buchanan JA in Asher, we do not see that the text of cl 1(1)(e) would extend to a document that was placed before Cabinet with no indication that Cabinet had even read it. There would be nothing to indicate that the document ‘concerned’ a Cabinet deliberation.
Having said that, unlike in the Commonwealth and Victorian Acts, the text of the exemption would appear to extend to documents the disclosure of which would disclose the subject matter of Cabinet deliberations. We cannot see any textual reason to conclude other than that the subject matter of Cabinet deliberations, identified as such, would constitute ‘information concerning [a] deliberation … of Cabinet’. This would appear to follow as a matter of plain reading. In saying that, we respectfully agree with the observation of the President:[28]
Where clause 1(1)(e) is relied upon, the document must be considered to ascertain whether its disclosure would disclose information concerning a deliberation or decision of Cabinet. A document upon which Cabinet has relied to reach its decision or which has informed its deliberations is one that is likely to “concern the deliberation or decision”. A document that merely addresses the same subject matter but did not inform Cabinet’s deliberations or decision is unlikely, without some other connection to the decision or deliberations, to attract the exemption.
[28] Order of the Tribunal at [75].
It is important to emphasise one matter, however. Assume a document has been the subject of deliberation by Cabinet. Subject to what follows, that mere fact would not exempt it from disclosure unless, upon its disclosure, it would be apparent that it was the subject of deliberation by Cabinet. Without that disclosed link, there would be no resultant disclosure of ‘information concerning any deliberation or decision of Cabinet’.

The respondent accepted as much, expressing it pithily in terms that ‘just because Cabinet receives something, does not itself mean that the information is protected’. This is a necessary consequence of the requirement that the relevant disclosure of information must occur by reason of the disclosure of matter in the document.
This leads to the next observation. The text is layered. It does not appear to be limited to where a document itself contains information concerning any deliberation or decision of Cabinet. This is indicated by the inclusion of the words, ‘matter the disclosure of which would disclose’. Textually, there is no reason to assess whether a disclosure protected by the exemption would occur only by reference to the matter in the document itself. Whether a disclosure of information concerning any deliberation or decision of Cabinet would occur is simply a question of fact.[29]
[29] See Rann v SA Water & Baker (No 2) (1996) 187 LSJS 438 at 443.
Thus, for example, situations may arise where a document contains matter the disclosure of which will disclose information concerning Cabinet deliberations only when read together with other extrinsic publicly available information.
For example, Cabinet might deliberate upon a confidential report that was not prepared specifically for its attention. Without more, there would be no reason to think that disclosure of the report would disclose information concerning a deliberation of Cabinet. However, if there existed publicly available information identifying that Cabinet had deliberated upon the report, the combination of the content of the report and that publicly available information would mean that disclosure of the report would disclose the subject matter of a Cabinet deliberation.
Warren requires, in respect of the Commonwealth exemption, that the disclosure must be occasioned by the information in the document itself. It is not necessary to offer a concluded view on this approach to the wording in the Commonwealth and Victorian Acts. It may be that the wording in the Victorian Act, ‘the disclosure of which would involve the disclosure’ gives some support to that reading. However, cl 1(1)(e) does not, to our reading, contain any such textual limitation.
Warren does not speak directly to the exemption in cl 1(1)(e), on account of the obvious difference in wording. On its face, the word ‘concerning’ in cl 1(1)(e) indicates a broader application than the word ‘of’. Textually, cl 1(1)(e) would appear to have a broader application than simply where the document discloses the actual deliberation or decision. It appears to extend to where a disclosure would disclose the subject matter of Cabinet deliberations, identified as such. That consequent disclosure might be caused by the existence of publicly available information which, when read together with the disclosed ‘matter’, demonstrates that this was indeed the subject matter of Cabinet deliberations.
It is important to emphasise that any extrinsic material called in aid for the conclusion that disclosure would disclose the subject matter of Cabinet deliberations and would thereby attract the exemption in cl 1(1)(e), must be publicly available. Absent that, there would be no resultant relevant disclosure.
There are several relevant matters of context. Broadly described, cl 1, which is headed, ‘Cabinet documents’, is concerned with pursuing the public interest in maintaining Cabinet confidentiality. This is not merely the confidentiality of what occurs in Cabinet. Clause 1(1)(a) confers an exemption on documents prepared for Cabinet whether or not they have been actually submitted to Cabinet. Clause 1(1)(f) exempts briefing papers specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted, to Cabinet. The briefing paper itself need not be put before Cabinet. The clause, as a whole, pursues a policy of promoting the free flow of information and advice to Cabinet, and the frank exchange of views within Cabinet.
Clause 1 embodies a statutory pursuit of the public interest policy that the common law has long recognised as extending the doctrine of public interest immunity to documents that relate to the framing of government policy at a high level.[30] In this regard, it is helpful to note the kinds of documents that the public interest recognises as attracting a public interest in non-disclosure and thereby attracting protection from the doctrine of public interest immunity. In CPB Contractors Pty Ltd and Hansen Yunken Pty Ltd v South Australia, S Doyle JA observed:[31]
[30] Sankey v Whitlam (1978) 142 CLR 1 at 39 (Gibbs ACJ).
[31] CPB Contractors Pty Ltd and Hansen Yunken Pty Ltd v South Australia [2024] SASCA 130 at [221]. See also [140]-[150] (Livesey P and David JA).
Differing formulations of the class of documents referred to as Cabinet documents have been offered in the authorities. However, the categories of documents that have been held to attract this head of public interest in confidentiality include:
1.documents that record the deliberations or decisions of Cabinet, including minutes of Cabinet meetings;[32]
2.documents provided to Cabinet for its consideration, including submissions and any accompanying or attached documents;[33]
3.documents which are not themselves ‘Cabinet papers’ within Categories 1 or 2, but which refer to, or otherwise reveal, the nature or content of Cabinet deliberations, decisions or submissions;[34]
4.documents brought into existence within government departments and instrumentalities for the purpose of preparing submissions to Cabinet;[35] and
5.documents relating to the framing of government policy at a high level, including communications between a Minister and the head of department, or between heads of department, which relate to Cabinet proceedings and material prepared for Cabinet.[36]
(Footnotes in original)
[32] Sankey at 39 (Gibbs ACJ); Northern Land Council at 614-615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ); Spencer v Commonwealth (2012) 206 FCR 309 (Spencer) at [32] (Keane CJ, Dowsett and Jagot JJ).
[33] Spencer at [42]-[43] (Keane CJ, Dowsett and Jagot JJ); New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (Public Transport Ticketing) at [50] (Allsop P, Hodgson JA and Sackville AJA agreeing); Ku-ring-gai Council v Garry (2017) 95 NSWLR 1 (Ku-ring-gai Council) at [80] (Basten JA, Macfarlan JA agreeing).
[34] Egan v Chadwick (1999) 46 NSWLR 563 (Egan) at [70] (Spigelman CJ, Meagher JA agreeing); Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 (CFMEU) at [42]-[43] (Black CJ, Tamberlin and Sundberg JJ); Spencer at [42]-[43] (Keane CJ, Dowsett and Jagot JJ); Ku-ring-gai at [80] (Basten JA, Macfarlan JA agreeing).
[35] Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 at 653 (Menzies J); Sankey at 39 (Gibbs ACJ); Spencer at [32], [42]-[43] (Keane CJ, Dowsett and Jagot JJ).
[36] Sankey at 39 (Gibbs ACJ); Spencer at [32], [42]-[43] (Keane CJ, Dowsett and Jagot JJ).
For present purposes, this categorisation acts as a helpful description of the common law reach of the doctrine of public interest immunity in respect of the class of documents described as ‘Cabinet documents’. By reference to this description, it can be seen that cl 1(1)(a) of Schedule 1 reflects the descriptions in points 2 and 4. Clause 1(1)(f) reflects the policy of point 5. Clause 1(1)(e) would certainly cover point 1. The broader reading of the clause, posited above, would extend to documents covered by point 3.
This is to do nothing more than observe, as a matter of context, that the broad textual reading of cl 1(1)(e) has some corollary in the common law formulation of categories of documents that are amenable to protection from disclosure by the doctrine of public interest immunity. Whether Parliament has chosen to include that reach in its statutory formulation is another matter. That invites an inquiry into legislative purpose, considered below. Before turning to that, however, there is one further contextual matter, being the exception to the exemption in cl 1(2)(a).
Clauses 1(2)(a)(i) and (ab) provide:
(2)     A document is not an exempt document by virtue of this clause—
(a)     if it merely consists of factual or statistical material (including public opinion polling) that does not—
(i)disclose information concerning any deliberation or decision of Cabinet; or
…
(ab)   merely because it was attached to a document described in subclause (1); …
The description in paragraph (a)(i) adopts the same wording as appears in cl 1(1)(e). On its face, it is a curious exception. This is because if the material in the document does not ‘disclose information concerning any deliberation or decision of Cabinet’, it would appear not to be caught by cl 1(1)(e) in the first place.
Clearly, the Legislature has recognised the imperative to ensure that no document can be exempted simply by attaching it to a Cabinet Submission or other clearly exempt document.[37] This still leaves the question, however, of the purpose served by expressing that ‘merely’ factual or statistical information is not exempt, unless it comes within the terms cl 1(1)(e).
[37] As to this, see Patrick v South Australian Fire and Emergency Services Commission [2022] SACAT 17 at [51]-[52] (Hughes P).
The best answer may be that cl 1(2)(a)(i), like cl 1(2)(ab), has been enacted to provide clarity to the operation of the exemptions in cl 1. It is difficult to see that a document that was merely attached to a Cabinet Submission, for no deliberative purpose, would for that reason alone be rendered exempt by any part of cl 1. As it is, cl 1(2)(ab) confirms it is not.
Similarly, merely factual or statistical information would not, without more, seem liable to disclose any deliberation or decision of Cabinet, even if it had been submitted to Cabinet for deliberation. However, there might be occasions when such information would do so. The obvious prospect of this mischief is where factual or statistical information is read together with other, publicly available information, which shows it to be the subject of Cabinet deliberations or decision‑making. Contextually, this exception tends to support a reading of cl 1(1)(e) that the contemplated disclosure of information may occur by reason of the existence of publicly available extrinsic material that demonstrates the (otherwise benign) matter to have been the subject of Cabinet deliberation.
On the purpose of the exemption, it should be reiterated at the outset that the FOI Act carries no general purposive indicator that the exceptions should be read in such a way as to favour (or not favour) disclosure. Each exemption is to be interpreted according to the words used, bearing in mind the legislative objects.[38] Relevantly, the Object stated in s 3(2)(b) is for a ‘legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions)’. This does not encourage any ‘leaning’ one way or the other.
[38] Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [68]-[69].
Both parties referred to the legislative history of the enactment of the FOI Act against the background of the development by the Courts of the doctrine of public interest immunity, as it applies to Cabinet documents. In Sankey v Whitlam,[39] the High Court recognised the breadth of documents associated with Cabinet deliberations that were capable of attracting public interest immunity but held that no document attracted absolute immunity. The attraction of public interest immunity depends on an exercise of weighing competing public interests.[40]
[39] (1978) 142 CLR 1.
[40] Sankey v Whitlam (1978) 142 CLR 1 at 58 (Gibbs ACJ).
The Freedom of Information Act 1982 (Cth) was enacted in March 1982, and the Freedom of Information Act 1982 (Vic) in January 1983. As discussed earlier, those Acts both exempted ‘documents the disclosure of which would involve the disclosure of any deliberation or decision of Cabinet’.
In December 1983, a South Australian Interdepartmental Working Party published a report entitled, Proposals for Freedom of Information in South Australia. This report observed:[41]
The essence of democratic government lies in the ability of people to make choices: about who shall govern; or about which policies they support or reject. Such choices cannot properly be made unless adequate information is available. Access to information is essential in ensuring that governments are kept accountable. The accountability of the government to the electorate is the corner-stone of democracy and, unless access to sufficient information is provided, accountability disappears. Without access to information individuals are unable to participate in a significant and effective way in the process of policy making.
[41] Interdepartmental Working Party, Proposals for Freedom of Information in South Australia (Report, December 1983), p8.
The Report encouraged uniformity in Freedom of Information legislation. It recommended adopting an identical exemption to that enacted in the Commonwealth and Victorian Acts.[42]
[42] Interdepartmental Working Party, Proposals for Freedom of Information in South Australia (Report, December 1983), p31.
In the mid-1980s, the Courts demonstrated an increasing preparedness to inspect Cabinet documents, even Cabinet minutes, and to hold public interest immunity not to apply.[43] The applicant submitted, and it may be accepted:
Certainly, there was a healthy dose of scepticism towards claims of public interest immunity in respect of material prepared by public servants to advise Ministers and indeed Cabinets. It was against that legal background that the freedom of information legislation in New South Wales and South Australia was enacted.
[43] See ALC Ligertwood, Australian Evidence (Butterworths, 1988) at [5.98]; S McNicol, Law of Privilege (Law Book Company Ltd, 1992), 407-408; Harbors Corporation (Qld) v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Hospitals Contribution Fund of Australia v Hunt (1983) 76 FLR 408; Koowarta v Bjelke Petersen (1988) 92 FLR 104.
In March 1989, the New South Wales Parliament enacted the Freedom of Information Act 1989 (NSW). Clause 1(e) of Schedule 1 exempted documents containing matter, ‘the disclosure of which would disclose information concerning any deliberation or decision of Cabinet’, that is, in the terms subsequently enacted in South Australia.
In August 1990, the Federal Court at first instance delivered judgment in Northern Land Council v The Commonwealth,[44] which concerned an action to set aside an agreement between the Council and the Commonwealth on account of, among other allegations, unconscionable conduct on the part of the Commonwealth. The Commonwealth discovered, and claimed public interest immunity over, notebooks recording the deliberations of Cabinet or committees of Cabinet. The Court, in a decision ultimately overturned by the High Court on appeal,[45] held that the documents disclosing deliberations of the Commonwealth Cabinet should be disclosed for inspection by the legal representatives of the Council.
[44] (1990) 24 FCR 576.
[45] Commonwealth v Northern Land Council (1993) 176 CLR 604.
The Full Federal Court heard an appeal from that decision in March 1991, upholding the decision in September 1991.[46]
[46] Commonwealth v Northern Land Council (1991) 30 FCR 1.
Meanwhile, in April 1991, the South Australian Parliament enacted the FOI Act, which contained cl 1(1)(e) in its present form, that is, reflecting the drafting in the New South Wales Act, rather than in the Commonwealth and Victorian Acts.
The applicant relied on aspects of this history to emphasise that the FOI Act was enacted against a background of intention to give effect to openness, accountability and responsibility, including accountability of the Executive to Parliament. For its part, the respondent relied on this history to infer that the Parliament’s choice of the word ‘concerning’, reflecting the New South Wales drafting, must be understood to have been a deliberate legislative choice to extend the operation of the exemption beyond the protection of Cabinet deliberations themselves.
We accept that this history shows a deliberate choice to prefer the New South Wales drafting over the Commonwealth and Victorian drafting. We are not persuaded that it goes any further. The parties did not point to any extrinsic material capable of supporting an inference that, for example, Parliament was reacting positively or negatively to the approach of the courts throughout the 1980s. The respondent submitted that Parliament’s choice should be given effect by construing cl 1(1)(e) according to its natural meaning. We would go no further than to say that there is nothing in the history leant on by both parties to suggest that the word ‘concerning’ should be accorded anything other than its natural meaning.
Conclusions on the construction question
The necessary exercise of construction of cl 1(1)(e) in this case is ultimately directed to resolving the application of the clause to certain documents. In contrast to the approach of the parties below, the Court is not faced with glaringly contrasting contentions of construction that it has been asked to resolve. Rather, the ‘construction’ question requires the Court to explain its approach to applying the exemption in its terms. In the present case, this amounts to an explanation of the scope of application of the exemption in cl 1(1)(e) at a level of abstraction that is descriptively sufficient to resolve the questions of application of the exemption to the documents in question.
Having regard to that need, for the reasons appearing above, we reach the following conclusions, on the construction of cl 1(1)(e):
·the choice of the word ‘concerning’ extends the reach of the exemption beyond documents the disclosure of which would disclose the actual deliberations or decisions of Cabinet;
·information that is the subject matter of Cabinet deliberations in the sense that it has informed those deliberations is capable of being ‘information concerning any deliberation or decision of Cabinet’;
·however, the mere fact that a document was submitted to Cabinet is insufficient to qualify the information within it as the subject matter of Cabinet deliberations;
·rather, to meet the terms of the exemption, the information disclosed by the document must be identifiable as the subject matter of Cabinet deliberations; and
·an identification may be made from the face of the document containing the information. However, it may also be made from publicly available, extrinsic information that, when read together with the document, reveals the material to be the subject matter of Cabinet deliberations.
We turn to the application of the clause, so construed, to the documents that remain in contention.
Whether the documents are exempt
It is first necessary to consider various publicly available documents that the respondent incorporated into its submissions. The first of these is the Assurance Framework, discussed earlier. The Assurance Framework announces its purpose as follows:
Purpose
Infrastructure SA [ISA] has been established under the Infrastructure SA Act 2018 [the Act] to improve infrastructure planning, prioritisation, operation and implementation.
The Act creates a requirement for ISA to:
·review and evaluate proposals for major infrastructure projects by public sector agencies
·assess the risks involved in planning, funding, delivering and managing infrastructure, and the management of those risks, and
·monitor the delivery of major infrastructure projects and other infrastructure projects identified in strategies, statements or plans adopted by the Minister [Premier] and any other infrastructure project at the request of the Minister.
The Infrastructure SA Assurance Framework [ISAAF] fulfills these roles. It outlines the approaches, requirements and tools to aid this function and deliver benefits for South Australia.

The Assurance Framework then sets out ‘ISAAF Benefits’, which are expressed to include:
1.Cabinet is continuingly informed about the status and performance of State Government-funded major infrastructure projects and programs.
2.Cabinet and public authorities undertaking projects/programs are supported with consistent, independent and expert advice.
3.Cabinet and public authorities are better informed and make better decisions about infrastructure projects and programs.
…
Under the heading, ‘ISAAF approach’, the Assurance Framework provides:
The ISAAF utilises the following approaches to meet requirements and deliver the intended benefits.
1.Major infrastructure projects and programs are continuously monitored to provide Cabinet with transparent and continuous oversight on how they are being managed and delivered.
…
The Assurance Framework is expressed to apply to infrastructure projects with an estimated capital investment value of $50 million (excluding GST) and above. It goes on to provide:
Cabinet
Monitoring and assurance reviews are primarily prepared for Cabinet [and/or any sub-committees] and, therefore, information is deemed to be ‘SENSITIVE: SA CABINET’. Notwithstanding the above, ISA may release consolidated and appropriately de-identified analysis to:
a.provide data, analytics, trends, themes and intelligence, and
b.support capacity-building across the public and private infrastructure sectors.
The Assurance Framework then addresses monitoring and reporting requirements upon ISA at some length. ISA’s reporting function includes providing regular reports to Cabinet.
The Assurance Framework also provides for various forms of Assurance Review. One such type is ‘Gate Reviews’, which the Assurance Framework describes as follows:
Gate Reviews are undertaken prior to key decision points in a project/program’s lifecycle and inform key directions and decisions about how it should progress.
Gate 1 is termed ‘Options Analysis’. This review occurs when the Options Analysis phase is mostly complete. Gate 2 is termed ‘Business Case’. It occurs prior to an investment decision by Cabinet. Gate 3 is termed ‘Procurement Review’. It occurs after the investment decision by Cabinet and prior to the main works procurement phase.
There are further Gate Review stages. It is not necessary to go through all of them. It is sufficient to note that this review framework is adopted ‘primarily’ for Cabinet.
The second category of publicly available documents the respondent referred to are meeting notes from various community and stakeholder meetings. These are attached to Document 15, the Northern Water Business Case, but the Ombudsman noted on the external review they could not be confidential, as they were already in the public domain. In any event, the respondent pointed to the following references in these minutes:
·Minutes of the Northern Water Supply Project Community Reference Group Meeting on 14 December 2022 record:
The business case will recommend a study site. The decision for a study site will be made by Cabinet when it considers the business case.
·Minutes of the Northern Water Supply Project Stakeholder Reference Group Meeting on 15 February 2023 record:
MCA [Multi Criteria Analysis] results will form part of the Business Case which will be presented to Cabinet to determine whether and to what extent the project will be funded, as well as the selection of one site on which to conduct further studies. Cabinet will also take into account things such as environmental work, engineering, stakeholder engagement and feedback in their deliberations. The Business Case will be submitted at the end of March with a decision expected by the middle of the year.
…
Cabinet’s decision following submission of the Business Case is to fund further work until mid-2024 …
The third category of publicly available document that the respondent relied on is the determination of the Ombudsman on external review. The respondent submitted to the Ombudsman in respect of Document 15:
I can confirm the Northern Water Business Case and Business Case summary (Document 15) was submitted to the Budget Cabinet Committee for the purpose of consideration on 12 April 2023.
The Ombudsman concluded, on this basis:[47]
The agency has confirmed, as above, that document 15 was submitted to Cabinet for deliberation. I am therefore satisfied that disclosure of document 15 would reveal information that concerned a deliberation or decision of Cabinet and consider that the document is exempt under clause 1(1)(e).
[47] Ombudsman, Determination, 2023/04968, 16 May 2024 at [28].
The Solicitor-General, appearing for the respondent, adopted this statement by the Ombudsman, as a piece of publicly available information capable of informing whether cl 1(1)(e) applied to (in particular) document 15, only hesitantly. He expressly cast this submission as one of last resort in the event that the balance of the information available did not establish the exemption. He was right to be hesitant.
The information provided by the respondent to the Ombudsman about the provision of the document to the Budget Cabinet Committee was not previously in the public domain. There is, of course, no difficulty in an agency providing evidence that a document had been submitted to Cabinet in order to support a submission that it had been specifically prepared for submission to Cabinet within the meaning of cl 1(1)(a). The circumstances of its provision to Cabinet may assist in demonstrating just that.
Assume, however, that a document contains only factual material and does not indicate on its face, or by reference to other publicly available information, that it contains information the disclosure of which would disclose information concerning Cabinet deliberations. For an agency to disclose, following an application under the FOI Act, that it was submitted to Cabinet, in order to engage the exemption in cl 1(1)(e), would raise the prospect of an abuse of the processes of the FOI Act.
As the Solicitor-General observed, publicly available information about documents held by the executive can change over time. Information might subsequently become public in a way that could not be said to involve an abuse of the FOI Act’s processes. In this regard, the respondent also relied on a further statement by the Ombudsman with respect to certain of the other documents:[48]
Document 15 contains an exact duplicate of document 13. While documents 6, 9, 10, 11, 12, 14 and 17 are not precisely duplicated in document 15, the substance of the information contained in these documents also appears to be contained in document 15 and would potentially reveal a deliberation or decision of Cabinet if disclosed.
[48] Ombudsman, Determination, 2023/04968, 16 May 2024 at [34].
In circumstances where the Ombudsman had already upheld the exempt status of document 15 pursuant to cl 1(1)(e), the potential and unfortunate effect of this statement is to reveal something about the matter contained in these other documents, by reason of the relationship between that matter and Document 15. Subject to the consideration of the document itself and publicly available material, the Ombudsman’s statement might be the only indicator tending to suggest that disclosure of the matter in, for example, Document 14, would disclose a deliberation of Cabinet.
We incline to the view that confidential information disclosed publicly or in proceedings subsequent to the application could not be relied on to demonstrate that disclosure of a document would disclose information concerning any deliberation or decision of Cabinet within the meaning of cl 1(1)(e). Section 12 of the FOI Act confers on a person a present, ‘legally enforceable right to be given access to an agency’s documents in accordance with’ the Act. This suggests that whether a document contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet must be assessed as at the time of the initial application. Of course, this does not prevent an agency from relying on affidavit material to demonstrate, for example, that a document was prepared specifically for submission to Cabinet, and is therefore exempt under cl 1(1)(a).
For reasons appearing below, however, it is not strictly necessary to decide the effect of a subsequent disclosure such as that by the Ombudsman in this case. It raises a difficult question of construction as to whether events subsequent to an application under the FOI Act can render a document exempt.
We turn to the documents the subject of this appeal. This being an appeal hearing, it is first necessary to note the decision of the Tribunal. As noted above, the President relied on two affidavits of Ms Elspeth Brown, Director, Cabinet Office, one open and one closed. The closed affidavit described the connection between each document and the processes of Cabinet.
The President expressed her determination as follows:[49]
The Tribunal has reviewed documents 6, 9 to 15 inclusive, and 17. The Tribunal has had regard to the Closed Affidavit of Ms Brown, in which she describes the way in which each document is connected to a particular decision or deliberation of Cabinet. As was explained in the hearing by counsel for the respondent, in the presence of the applicant, this was done by way of a table.
In her evidence, Ms Brown provided further information in relation to the relationship between particular documents and particular Cabinet sub-committee or taskforce meetings. She provided this information in the hearing in the presence of the applicant.
It was her evidence that document 6 went to a meeting of the Cabinet taskforce as an attachment to a Cabinet submission to the taskforce. She expressed the view that in relation to document 6, the agency should have claimed exemption pursuant to clause 1(1)(a) as well as 1(1)(e) in its determination. She acknowledged that document 6 had the same characteristics as document 1, which was a document found by the Ombudsman to attract clause 1(1)(a).
Ms Brown told the Tribunal that documents 9, 11, 12, 13, 14 did not go to a Cabinet taskforce meeting, but each of them informed the content of document 10, which went to a Cabinet taskforce meeting and was the subject of a claim under clause 1(1)(a).
It was also Ms Brown’s evidence that document 15 went to a Cabinet taskforce meeting as an attachment to a submission. On that basis, it was her view that document 15 properly attracted clause 1(1)(a) as well as clause 1(1)(e), even though clause 1(1)(a) was not claimed at the time.
Having reviewed the documents, having considered Ms Brown’s affidavit and oral evidence, and having regard to the construction of clause 1(1)(e) reached, I am satisfied that each contains matter that would, if disclosed, disclose information concerning a deliberation or decision of Cabinet. Each of the documents is therefore exempt pursuant to clause 1(1)(e) and I affirm the Ombudsman’s decision in respect of each of them.
[49] Order of the Tribunal at [83]–[88].
In considering whether the Tribunal erred, we have had regard not only to the publicly available information as discussed above, but to the closed affidavit of Ms Brown. For the reasons already discussed, and as the Solicitor-General accepted, the closed affidavit cannot inform the exemption under cl 1(1)(e). It is capable, however, of informing the claimed exemptions under cl 1(1)(a). Because of the nature of the documents and the objections, our reasons addressing the status of each document are necessarily brief.
Document 15: Report – Northern Water Business Case, dated 4/4/2023
This document is extremely large. On the face of the document itself, it is clear that it was prepared specifically for consideration by Cabinet and that its disclosure would disclose information concerning Cabinet deliberations. Comparing this document against the Assurance Framework and, for that matter, the Community Reference Group Meeting Minutes of 14 December 2022, as well as the Stakeholder Reference Group Meeting Minutes of 15 February 2023, further confirms these conclusions. The document is exempt from disclosure pursuant to cll 1(1)(a) and 1(1)(e).
Document 6: Strategic Case for Water Supply (undated)
It is apparent from the face of the document, when read together with the Community Reference Group Meeting Minutes of 14 December 2022, as well as the Stakeholder Reference Group Meeting Minutes of 15 February 2023, that disclosure of the document would disclose information concerning deliberations of Cabinet, in the sense of disclosing material that informed Cabinet deliberations. We consider that it is exempt under cl 1(1)(e).
Ms Brown gave evidence that Document 6 went to a meeting of the Cabinet Taskforce known as the ‘Hydrogen and Upper Spencer Gulf Cabinet Taskforce’. For the reasons discussed above, and consistently with the Solicitor-General’s concession, we do not consider that fact to be relevant to an assessment of the applicability of cl 1(1)(e).
Ms Brown could not speak to the intentions of the author of the document. However, its provision to the Cabinet Taskforce, its authorship, the Assurance Framework and certain confidential extrinsic material together invite a conclusion that Document 6 was specifically prepared for submission to Cabinet within the meaning of cl 1(1)(a). We hold that it is exempt from production on that basis also.
Document 14: ISA-02-06 NWSP Desalination Plant Relocation to Cape Hardy – R1- Final, Attachment to Document 9, dated 27/3/2023
The respondent made no claim under cl 1(1)(a) in respect of this document, limiting its claim to cl 1(1)(e). There is consequently no call to consider any confidential extraneous information. The respondent admitted that its case that the disclosure of this document would disclose a deliberation of Cabinet was ‘piecemeal’.
In the first instance, the respondent relied on various aspects of the document itself, being the title, the stated purpose of the document and the stated ‘scope and methodology’. These matters set out the subject matter of the document. The respondent then directed attention to the conclusion stated in the document.
The respondent submitted that having regard to the nature, size and scale of the project, as well as the publicly available minutes about the decision‑making role of Cabinet, the content of the document and the significance of the option that the document considers, it is apparent that disclosure of the document would disclose information concerning a deliberation of Cabinet.
It is important to be clear that the exemption in cl 1(1)(e) protects ‘information’ concerning Cabinet deliberations, which we have held to include subject matter that has informed Cabinet deliberations. For the reasons discussed above, a proposition that certain information, regardless of whether the document in which it appears was placed before Cabinet, must have informed Cabinet deliberations can be inferred by indirect means. In this instance, that inference tends to arise from:
·the express purpose and scope of the document;
·the option stated in the conclusion on p 11 of the document;
·the monetary amounts expressed to be associated with that conclusion; and
·the publicly available information about the role of Cabinet in monitoring and approving infrastructure projects of this size.
Having regard, in particular, to the role of Cabinet in determining a study site as disclosed by the publicly available minutes, we infer that disclosure of Document 14 would disclose information that has informed Cabinet deliberations. That conclusion is, effectively, a circumstantial inference. We are satisfied, however, having regard to the contents of the document, that it is sufficiently robust. The document is exempt pursuant to cl 1(1)(e).
In reaching this conclusion, we have not had regard to the statement by the Ombudsman with respect to this document, discussed earlier. For the reasons given earlier, we have considerable doubt that otherwise confidential information disclosed subsequent to the application, could be relied on to support a claim for exemption. However, it is not necessary to express a final view in that regard.
Conclusion
We grant leave to appeal but dismiss the appeal.