Quinn and Australian Tax Office (Freedom of information) - [2019] AATA 5550

Quinn and Australian Tax Office (Freedom of information) [2019] AATA 5550 (23 December 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/0188
Re:John Quinn
APPLICANT

AndAustralian Tax Office
RESPONDENT

DECISION
Tribunal:F D O’Loughlin QC, Deputy President
Date:23 December 2019
Place:Melbourne

The Tribunal:
(a)affirms the decision under review in relation to the claims made under s 42 and s 47C of the Freedom of Information Act 1982 (Cth) in respect of all documents except documents 29 and 35 and;
(b)sets aside the decision under review in relation to the claims made under s 47C of the Freedom of Information Act 1982 (Cth) in respect of documents 29 and 35, and in lieu thereof the decision is that these documents, while conditionally exempt, are not such as to warrant denial of release in the public interest and are to be released.

.....[sgd]...................................................................
F D O’Loughlin QC, Deputy President
Catchwords
Freedom of Information – Legal Professional Privilege – Conditionally exempt documents – deliberative processes – public interest.
Legislation
Freedom of Information Act 1982 (Cth).
Cases
Attorney-General (NT) v Kearney (1985) 158 CLR 500.
Baker v Campbell (1983) 153 CLR 52.
Carter v Northmore Hale Davey & Leake (1995) 183 CLR 121.
Commissioner of Taxation v Donoghue [2015] FCAFC 183.
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
Grant v. Downs (1976) 135 CLR 674.
Glencore International AG v Commissioner of Taxation [2019] HCA 26.
Marcus G James; Grantley William Trelayne Brown; Jane Gleeson; Kevin Francis Jones and Gilbert Anthony Elliott and Australian National University, Re (1984) 6 ALD 687.
New South Wales v Betfair Pty Ltd (2009) 180 FCR 543.
The Trustees of the WT & A Norman Superannuation Fund and Commissioner of Taxation [2015] AATA 914.
Waterford v The Commonwealth (1987) 163 CLR 54.
REASONS FOR DECISION
23 December 2019
INTRODUCTION AND ISSUES

Motivated at least in part by:
(a)a perception or belief that the ATO[1] had made assertions that Part IVA of the 1936 Assessment Act,[2] in particular section 177EA, applied to reverse the effect of a dividend washing transaction when, within the ATO, there was a belief that it did not have such an effect; and
(b)that it is in the public interest to disclose documents that reveal dishonest behaviour of a government agency, namely making public assertions that are inconsistent with internal views,
the Applicant made an FOI[3] application seeking copies of all submissions, advice or communications between the ATO and any officer of that office — the Treasurer, the Finance Minister, and Departments of Treasury and Finance — in relation to: dividend washing; the applicability of section 173EA of the Income Tax Assessment Act; or the bill which became the Tax and Superannuation Laws Amendment (2014 Measures No. 2) Act 2014.
[1]Australian Taxation Office
[2]Income Tax Assessment Act 1936 (Cth).
[3]Freedom of Information.
The Applicant formed his perceptions and beliefs about ATO behaviour, and made his FOI application, unaware of the Norman Superannuation Fund decision.[4] In that matter, the question for consideration was whether s 177EA applied to deny imputation credit benefits arising from a dividend washing transaction, and the conclusion reached was that it did.
[4]The Trustees of the WT & A Norman Superannuation Fund and Commissioner of Taxation [2015] AATA 914.
After a process of FOI application, ATO decision to release some documents and withhold others, and subsequent review by the Information Commissioner[5] upon which further documents were released, there remain 35 disputed documents that the ATO says it is not required to produce because they are either:
(a)exempt under s 42 of the FOI Act,[6] because they are documents affected by the LPP[7] immunity (33 of the 35 documents); or
(b)conditionally exempt under s 47C of the FOI Act, because they are documents that disclose matter that reflect deliberative processes, and access to these documents would, on balance, be contrary to the public interest (all 35 documents, with documents 29 and 35 claimed as conditionally exempt only).
[5]The Australian Information Commissioner appointed under s 14 of the Australian Information Commissioner Act 2010 (Cth).
[6]Freedom of Information Act 1982 (Cth).
[7]Legal Professional Privilege.
The Information Commissioner did not review the s 42 exemptions because a conclusion had been reached that s 47C operated to preclude provision of the documents.
The Appendix sets out the relevant legislation that bears upon the outcome in the present matter.
The competing contentions
Among others, either expressly or through his cross examination of Ms Harris from the ATO, the Applicant contends that:
(a)exposure of less than candid government behaviour is in the public interest;
(b)releasing a further 23 documents which had originally been claimed to be exempt, on LPP grounds, points to a somewhat cavalier attitude from the ATO and legitimately calls into question whether the remaining documents, for which privilege and/or a section 47C exemption has been claimed, are in fact legitimately classified as such;
(c)without disclosing their content, the ATO has not provided details of the authors’ and recipients’ position descriptions, the dates of the documents and sufficient other information to determine whether the documents fell within the normal descriptions of documents subject to LPP;[8]
(d)the classification stampings afforded to the various documents are choices made by their authors and those choices do not reveal that the documents were privileged;
(e)there is no current litigation on foot that would suggest strengths and weaknesses are in issue;
(f)the integrity of the Australian Taxation Office and its fairness in dealing generally, and in relation to the dividend washing topic for more than 700 affected taxpayers, calls for release; and
(g)expenditure of public funds on developing and having passed the new legislation, insofar as it related to dividend washing, was in fact completely unnecessary, calls for release.
[8]It is apparent that the Applicant was implying that he had not been provided the type of information the ATO seeks when roles are reversed.
The ATO contends that:
(a)the privileged documents are a mix of actual draft documents, draft legislation, draft extrinsic materials, drafting instructions, documents collating various comments and responses about those documents, documents that record meetings or proposed meetings about the same sorts of documents which are all covered by LPP because they were all prepared for the dominant purpose of obtaining legal advice from the OPC;[9]
[9]Office of Parliamentary Counsel.
(b)the Betfair[10] decision confirms that dealings of this nature with the OPC are on the same footing as dealings with lawyers, and the communications that occur in the course of preparing draft legislation and supporting materials are privileged;
(c)"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;[11]
(d)[i]t is sufficient to bring a document within s 36(1)(a) if the disclosure of the document would disclose matter in the nature of or relating to opinion, advice or recommendations 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 the agency;[12]
(e)document 29 concerns the costing of the draft legislation. Its disclosure would disclose matters relating to advice obtained or deliberation that had taken place by the ATO about how the new law would be administered;
(f)document 35 is material provided to the Minister. Its disclosure would therefore reveal matter in the nature of advice to the Minister in the discharge of his functions; and
(g)for the conditionally exempt documents the public interest is in favour of non-release because:
(i)releasing internal communication into the public domain might inhibit the process of statutory interpretation insofar as it distracts from authoritative and final versions of traditional extrinsic material;
(ii)strengths and weaknesses of various legislative options might be revealed;
(iii)the statutory interpretation process would be positively impeded by release of documents like those under review because release to the public might encourage people to attempt to use them improperly in place of extrinsic material upon which all members of the public may rely, not just people who make FOI requests.
[10]New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 at [15], Kenny, Stone and Middleton JJ.
[11]Re Marcus G James; Grantley William Trelayne Brown; Jane Gleeson; Kevin Francis Jones and Gilbert Anthony Elliott and Australian National University (1984) 6 ALD 687, 693 [63] (A.N. Hall DP).
[12]Ibid 694 [65].
The evidence
An ATO employee, Ms Harris, gave evidence:
(a)that she was the was the Project Manager of the Preventing Dividend Washing new measure project in 2014;
(b)of the team of people involved in developing the legislation and related explanatory materials that ended up in the Tax and Superannuation Laws Amendment (2014 Measures No. 2) Act 2014 (Cth);
(c)on the role of ATO, Treasury and OPC staff in the project;
(d)on her role as the co-ordinator and collator of comments from relevant personnel that were fed to Treasury personnel to be fed into the OPC processes for drafting the amending legislation and extrinsic material; and
(e)to a limited degree, of the documents that were the subject of the ongoing present dispute and of the context in which they were created.
As to the disputed documents, Ms Harris said as follows.
(a)Document 1 is an email chain in which I participated by sending and receiving emails. In this email chain, comments on the draft legislation and draft explanatory memorandum are shared for the consideration of relevant employees of the Treasury and the ATO. The issues addressed in the email chain were raised by various areas in the ATO.
(b)Documents 2 to 7 are attachments to emails in the chain of emails in Document 1. The chronological order of those documents is:
(i)Documents 7 and 6 (draft legislation and draft explanatory memorandum respectively);
(ii)Document 5 (Table of issues raised by ATO on draft legislation and draft explanatory memorandum);
(iii)Document 4 (Treasury's responses to ATO issues);
(iv)Document 3 (revised version of the draft Explanatory Memorandum); and
(v)Document 2 (consolidated table of all issues raised by ATO and Treasury responses).
(c)Document 2 is an attachment to Document 1. It consolidates in the form of tables various comments on the drafting instructions, draft legislation and draft explanatory memorandum. The purpose of this table was to allow employees of the Treasury and the ATO to consider possible drafting of the drafting instructions, draft legislation and draft explanatory memorandum. The comments came from various areas of the Treasury and the ATO.
(d)Document 3 is a draft explanatory memorandum.
(e)Document 4 is a table of issues raised by various areas of the ATO for consideration by those in the ATO and by employees of the Treasury. The issues relate to the draft legislation and draft explanatory memorandum.
(f)Document 5 is a table of issues raised by various areas of the ATO for consideration by those in the ATO and by employees of the Treasury. The issues relate to the draft legislation and draft explanatory memorandum.
(g)Document 6 is a draft explanatory memorandum.
(h)Document 7 is draft legislation.
(i)Document 8 is an email chain distributing public submissions received in relation to the draft legislation and draft explanatory memorandum. I participated in the email chain. In my email, I noted an issue for consideration among the recipients to the email.
(j)Document 9 is an email chain between me and Mr B. Mr B sent me and others an initial draft from the Office of Parliamentary Counsel of the proposed legislation, and l provided Mr B collated comments on the draft legislation. The purpose of doing so was to seek the Treasury's response to the comments which areas of the ATO had raised.
(k)Documents 10 to 14 are attachments to emails in the chain of emails in Document 9. The chronological order of those documents is:
(i)Document 14 (draft drafting instructions);
(ii)Document 11 (ATO feedback on draft drafting instructions);
(iii)Document 12 (draft drafting instructions showing ATO feedback in track changes);
(iv)Document 13 (draft legislation); and
(v)Document 10 (ATO feedback on draft legislation).
(l)Document 10 is an attachment to Document 9. It contains a table of issues raised by various areas of the ATO for consideration by those in the ATO and by employees of the Treasury, and ultimately the Office of Parliamentary Counsel. The issues relate to draft legislation.
(m)Document 11 is a table of issues raised by various areas of the ATO for consideration by those in the ATO and by employees of the Treasury, and ultimately the Office of Parliamentary Counsel. The issues relate to draft drafting instructions.
(n)Document 12 is a draft set of drafting instructions to the Office of Parliamentary Counsel. The purpose of drafting instructions is to direct the Office of Parliamentary Counsel as to the legislative policy which it is the responsibility of that Office to transform into legislation. In this document, the ATO has provided input into the draft drafting instructions. This would typically take place in relation to draft tax legislation. Among other reasons, this is because, at a later point in the legislative process, the ATO will need to sign off that the legislation meets the policy intent and that it is administrable.
(o)Document 13 is draft legislation.
(p)Document 14 is a draft set of drafting instructions to the Office of Parliamentary Counsel.
(q)Document 15 is an email from me to Mr B of the Treasury, in which I provided further information in relation to advice which had been previously provided on the draft drafting instructions. The purpose of doing so was to contribute to consideration of the draft drafting instructions.
(r)Documents 16 to 26 relate to the same meeting. Those documents should be read in the following order:
(i)I sent out an invitation to a meeting (Document 16);
(ii)I sent an email (Document 24), which attached a document that contained an agenda and background information about the issues requiring discussion (Document 25);
(iii)Part of the background material in Document 25 included an attachment (Document 26). Document 26 appears four times (as Document 18, 20, 22 and 26) because Document 25 (which included Document 26) was referred to in my meeting notes, the draft meeting summary, and the finalised meeting summary;
(iv)We had the meeting (my notes are Document 23);
(v)I sent out a draft summary of the meeting (Document 19, with Document 20 attached), asking for any changes required; and
(vi)I sent out a finalised summary of the meeting, which took into account feedback received (Document 17, with document 18 attached). It appears this didn't print properly, so was replicated at Document 21 with Document 22 attached.
(s)Document 16 is an email chain in which I participated. In my email, I circulated a summary of a prior meeting about potential legal issues with dividend washing. The email chain advised that several issues had been identified with the new law.
(t)Document 17 is the draft summary attached to Document 16. It identifies topics of discussion in relation to the proposed law, and the outcomes of that discussion. At the meeting, legal issues were discussed and legal opinions were expressed by the participants. The meeting was about potential legal issues with the draft law.
(u)Document 18 is the same as Document 26 below.
(v)Document 19 is the same as Document 17, except that there is no track changing.
(w)Document 20 is the same as Document 26 below.
(x)Document 21 is the same as Documents 17 and 19. It appears that there is some track changing which has altered how the document appears when printed.
(y)Document 22 is the same as Document 26 below.
(z)Document 23 is my notes taken during the meeting [referred to in documents 16 and 17].
(aa)Document 24 is an email chain of emails sent by me. In the last email, I send an agenda and attachments for the meeting summarised in Document 17. I note that potential legal issues for dividend washing will be discussed.
(bb)Document 25 is the agenda sent by me in the Document 24 email chain.
(cc)Document 26 is a table which lists issues identified in the new legislation together with proposed suggestions to address those issues. The document contains legal opinions for consideration.
(dd)Document 27 is an email chain providing a response to a legal question about dividend washing directed to the ATO by the office of a government Senator.
(ee)Document 28 is an email chain in which an ATO employee provided legal advice in response to a question forwarded by the Treasury. I am copied into the email chain.
(ff)Document 29 is an email from an Analyst in the Treasury to me about the costing of the new law. Such information is needed because the costing will impact matters such as the number of full time employees required or additional resources needed. These considerations feed into planning, reporting and administration within the ATO.
(gg)Document 30 is an email chain between employees of the Treasury and the ATO. The email chain contains views about the draft legislation in response to Treasury's publicly-released discussion paper. In the final email, an Analyst of the Treasury sends me a copy of an executive minute from Treasury to the Government about the draft law as a result of the submissions received. The document is provided to the ATO for our information.
(hh)Document 31 is a document which the Treasury has prepared about public submissions received about … [a] public discussion paper. The document is provided to the ATO for our information and consideration.
(ii)Document 32 is an email chain involving ATO and Treasury employees. While I am not a party to the email chain, I recognise that the email chain is about a draft discussion paper on dividend washing to be released for public comment as part of the legislative process.
(jj)Document 33 is an email from a Senior Director of the ATO to an Analyst of the Treasury attaching a note on the proposed legislation. The email summarises the ATO's legal opinion on aspects of the proposed legislation.
(kk)Document 34 is the attachment to Document 33. It contains the ATO's legal views on the proposed dividend washing arrangements.
(ll)Document 35 is a document prepared by the ATO for the consideration of the Minister in order to explain what dividend washing is.
Ms Harris also said:
We have been working in the Tax Office in collaboration with Treasury and the Office of 45 Parliamentary Counsel. We seek to develop the law in a way that is open to the public. However, we do need an arena where we can have frank, open and critical discussion about policy and legislation so that we can develop the best policy for government and for the people of Australia.
and
If documents like the disputed documents were available for access to the public I am concerned that them being routinely available would have a negative impact on openness of discussion between Treasury, the ATO and Parliamentary Counsel in respect of draft legislation intrinsic material. Comments might be more guarded so as to avoid creating ambiguities or uncertainties.
which would be a bad thing because:
when working on new law we need to be able to have frank conversations between the ATO, Treasury, Office of Parliamentary Counsel and government. If we're concerned that what we're saying is released to the public, then we might be tempted to offer only oral advice or to offer only very anodyne advice and not be as frank, honest and critical as required.

The actual documents in dispute have various markings, including Sensitive Legal, Official Use Only, Unclassified, and Potential legal issues.
All documents, apart from documents 29 and 35, meet the descriptions given by Ms Harris and were documents prepared in the course of a series of communications between Treasury and ATO staff with OPC staff, and documents incidental to the primary documents.
The description of document 29, i.e.:
an email from an Analyst in the Treasury to me about the costing of the new law. Such information is needed because the costing will impact matters such as the number of full time employees required or additional resources needed. These considerations feed into planning, reporting and administration within the ATO
when taken with the reason for the exemption claimed, i.e.:
document 29 concerns the costing of the draft legislation. Its disclosure would disclose matters relating to advice obtained or deliberation that had taken place by the ATO about how the new law would be administered,
might suggest that the document contains details of the actual costings. It does not. It is simply an advice to one or more team members that costings have been updated.
The description of document 35, i.e.:
a document prepared by the ATO for the consideration of the Minister in order to explain what dividend washing is.
when taken with the reason for the exemption claimed, i.e.:
document 35 is material provided to the Minister. Its disclosure would therefore reveal matter in the nature of advice to the Minister in the discharge of his functions,
might suggest that the document contains sensitive advice. It does not. It is simply a description of a dividend washing transaction and its effect under the then applicable dividend imputation rules.
Consideration
An exempt document is not required to be disclosed.[13]
[13]FOI Act s 11A(4).
A conditionally exempt document must be disclosed unless (in the circumstances) disclosure would, on balance, be contrary to the public interest.[14] The starting position is that the document is to be released unless retention is, on balance in the circumstances, in the public interest.
[14]FOI Act s 11A(5).
The s 42 LPP claims – all documents other than documents 29 and 35
LPP is an immunity from any obligation to produce records or documents that contain the content of communications between lawyers and their clients and others. It is an immunity that can be claimed by governments, government agencies and members of the community. In FOI matters it is not necessary to determine whether the scope of the privilege extends to obligations to produce documents under the FOI Act because the exemption for privileged documents is specifically provided for and is specifically limited by the terms of s 42. Here the limitations in s 42(3) do not apply. The documents in question do not contain operational information within the terms of s 8A.
The Betfair decision is decisive in relation to the s 42 LPP claims. The relationship between the instructing agencies of government and the OPC in producing draft legislation is one attracting the LPP immunity.
The ATO has provided sufficient material to form the view that all documents other than documents 29 and 35 are of a kind that fall within the terms of the Betfair decision.
All of the documents other than documents 29 and 35 fall within the scope of the immunity afforded by the LPP doctrine and are therefore exempt pursuant to s 40.
Particular comment needs to be made about documents 24 and 25. These documents are an agenda circulating amongst participants in a project to organise a meeting. The purpose of the meeting is to continue discussion about the legislative development being advanced with a view to instructing and receiving advice from the OPC. The agenda attaches historical public documents, and a legal issues table (document 26) that appears in multiple places. On their own, documents 24 and 25 don’t contain communications of instructions or advice. However, they do contain topics to be discussed and they are part of a suite of documents that is incidental to, and associated with, communications in a continuing series of project communications where the communications are privileged. The ATO correctly includes these documents in the suite of documents to which the LPP immunity applies.
The use of document or email classifications and markings within the Commonwealth Government system of classifying communications is not directed to categorising documents and as communications as privileged or non-privileged. It is a system for other purposes, and the choice of badging of a particular communication under that system is not determinative. If the circumstances in which a communication is made, the parties to the communication, and the subject matter of the communication, are all such that the communication is a privileged communication, then it remains so notwithstanding the labelling or badging. Just as the absence of a stamp or heading indicating a privileged status in many communications between lawyers and their clients does not mean an otherwise privileged communication loses that status. Similarly affixation of a badge, stamp or heading asserting that a communication is a privileged communication does not make it privileged if there are features to the communication that indicate that it could not be privileged.
Similarly the effective suggestion by the applicant that failure to provide details of the authors’ and recipients’ position descriptions, the dates of the documents and sufficient other information to determine whether the documents fell within the normal descriptions of documents subject to LPP, as noted above, does not mean that the ATO has not established that the document containing the communication is privileged. Such information does not serve any purpose other than giving an indication of whether a document might be privileged. Providing it does not mean the document is privileged and not providing it does not mean a document is not privileged, or that a claimant has failed to establish that the document is privileged. The LPP status of a document or communication can be established in various ways. Here, without providing the information which the applicant was expecting as noted above, the ATO has provided information concerning the setting in which the communications occurred and a short description of each document and allowed the Tribunal to examine the document. With this information the Tribunal is in a position to determine whether or not the claim is made out. The Tribunal has had the benefit of examining the relevant documents. In a setting where the only matter in dispute is the LPP status of a document, and the LPP determination is not a collateral or interlocutory aspect of a wider dispute, there ought not be concerns about compromising subsequent processes[15] by examining the documents in question to determine LPP questions.
[15]Cf Grant v Downs (1976) 135 CLR 674 at 677 (Barwick CJ).
Accordingly the approach adopted by the ATO is an appropriate one.
The s 47C claims – all documents other than documents 29 and 35
For these documents the s 47C claims are in addition to the s 40 LPP claims.
All documents can be accepted as having been produced in the course of and as part of a deliberative process given the width of that concept. The ATO’s contentions in this regard are accepted as correctly made. All that needs to be considered is whether on balance the public interest requires denial of their release and continuation of their confidential status.
The LPP immunity[16] is the outcome of a balancing process:[17] preservation of confidentiality of communications between lawyers and their clients and others for the dominant purpose of obtaining legal advice, recognising the role that lawyers and giving of advice play in the system of administration of justice, outweighing the public interest in the ascertainment of truth. There having been a balance struck in favour of preservation of confidentiality, over any public interest in disclosure, it necessarily follows that for a s 47C conditionally exempt document that is also a privileged document, the public interest must be in favour of retention of confidentiality of the document, and therefore upholding any claim for conditional exemption under s 47C.
[16]Glencore International AG v Commissioner of Taxation [2019] HCA 26 at [9], [12], [21]–[26]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]; Commissioner of Taxation v Donoghue [2015] FCAFC 183 at [52].
[17]See Carter v Northmore Hale Davey & Leake (1995) 183 CLR 121 at 133–134 (Dean J) and the references there to Waterford v The Commonwealth (1987) 163 CLR 54 at 64–65 (Mason and Wilson JJ), Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 532 (Dawson J), Baker v Campbell (1983) 153 CLR 52 at 95–96.
The s 47C claims – documents 29 and 35
Exemption for documents 29 and 35 only being advanced under s 47C, requires consideration first of whether they are documents recording or containing the product of deliberative processes of an agency and, if they are, whether it is in the public interest to disclose those documents.
Both documents can be accepted as having been produced in the course of and as part of a deliberative process given the width of that concept. The ATO’s contentions in this regard are accepted as correctly made. The necessary consideration becomes whether it is contrary to the public interest to release the documents. And in that regard, the Tribunal must not take into account any embarrassment to, or a loss of confidence in, the Commonwealth Government,[18] or confusion or unnecessary debate,[19] that could result if access to the document is allowed.
[18]FOI Act s 11B(4)(a).
[19]FOI Act s 11B(4)(d).
Ignoring momentarily the terms of ss 11B(4)(a) and (d) of the FOI Act, the grounds put forward in support of the public interest claim as set out above, namely:
(a)document 29 concerns the costing of the draft legislation. Its disclosure would disclose matters relating to advice obtained or deliberation that had taken place by the ATO about how the new law that would be administered;
(b)document 35 is material provided to the Minister. Its disclosure would therefore reveal matter in the nature of advice to the Minister in the discharge of his functions; and
(c)the more generic claim that the public interest is in favour of non-release of the conditionally exempt documents because:
(i)releasing internal communication into the public domain might inhibit the process of statutory interpretation insofar as it distracts from authoritative and final versions of traditional extrinsic material;
(ii)strengths and weaknesses of various legislative options might be revealed;
(iii)the statutory interpretation process would be positively impeded by release of documents like those under review because release to the public might encourage people to attempt to use them improperly in place of extrinsic material upon which all members of the public may rely, not just people who make FOI requests;
may well be proper grounds on which public interest considerations might fall on balance against allowing access to the documents in some circumstances. However, the exemption entitlement arises on a document by document basis, and consideration of the public interest in a document’s non-disclosure needs to be considered on the same basis. For retention of confidentiality of a particular document on public interest grounds, as opposed to for a category of documents, it is necessary for the content of the particular document to fall within the public interest ground advanced. For example, if the public interest ground for retention of confidentiality is the potential for confusion in statutory interpretation processes that might be caused by differences between:
(a)internal potential interpretations of a proposed statute; and
(b)explanatory memoranda subsequently made available when bills are presented to Parliament as part of the legislative process which are permissible aids to interpretation,
then the material that is said should remain confidential in the public interest would need to have content that fits the alleged need for confidentiality.
In the present case neither document 29 nor 35 contains any such material so there is no basis for a conclusion not to release the documents on those generic grounds.
Document 29 merely provides an update that costings have been prepared. It doesn’t suggest what those costings are, how they were calculated or anything which might be regarded as problematic or sensitive. Rather it is just an update that something associated with the project has happened. Any public interest in retention of confidentiality of this document does not arise on the basis that its release would disclose matters relating to advice obtained or deliberation that had taken place by the ATO about how the new law would be administered.
Similarly, document 35 is merely a description of a type of transaction and its effect under the then dividend imputation rules that, according to Ms Harris’ affidavit, was prepared for the benefit of a responsible Minister. It is a communication of observed transactions and their effect. To the extent that it could be called an advice, there is nothing sensitive in it.
Having regard to the terms of s 11B of the FOI Act, the factors in favour of release of the two documents outweigh the factors to the contrary.
In the earlier phases of the present matter, various documents meeting the terms of the Applicant’s request have been released. Release of documents 29 and 35 is a continuation of release of documents after a consideration of documents on a document by document basis. While there has clearly been a deliberative process, it has also been accepted that some documents meeting the terms of the Applicant’s request are properly released and the documents are not to be dealt with as a group.
Motivation matters
As noted above, it is apparent that the Applicant was unaware of the Norman Superannuation Fund decision, in which a dividend washing transaction was considered in the context of Part IVA of the 1936 Assessment Act and the Commissioner prevailed in applying Part IVA. While it has no bearing on the availability of documents pursuant to the FOI application that has been made, the foundation for the Applicant’s perceptions about ATO integrity was misconceived.
Decision
For the reasons set out above:
(c)the s 42 claims in relation all documents except documents 29 and 35 are confirmed and the decision under review in relation to those claims is affirmed;
(d)the s 47C claims in relation to the documents in (a) above are also confirmed and the decision under review in relation to those claims is affirmed; and
(e)the s 47C claims in relation to the documents 29 and 35 are not sustained, the decision under review in relation to those claims is set aside, and in lieu thereof the decision is that these documents, while conditionally exempt, are not such as to warrant denial of release in the public interest and are to be released.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of F D O’Loughlin QC, Deputy President

......[sgd]..................................................................
Associate
Dated: 23 December 2019

Dates of hearing: 12 October 2017

Date final submissions received: 19 October 2017

Applicant: In person

Counsel for the Respondent: Mr Christopher Tran

Solicitors for the Respondent: Australian Government Solicitor
Appendix
FREEDOM OF INFORMATION ACT 1982
SECTION 8A
Information to be published--what is operational information?
(1)An agency's operational informationis information held by the agency to assist the agency to perform or exercise the agency's functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).
Example: The agency's rules, guidelines, practices and precedents relating to those decisions and recommendations.
(2)An agency's operational informationdoes not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.
SECTION 11A
Access to documents on request
Scope
(1)This section applies if:
(a)a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i)a document of the agency; or
(ii)an official document of the Minister; and

(b)any charge that, under the regulations, is required to be paid before access is given has been paid.

(2)This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)section 12 (documents otherwise available);
(b)section 13 (documents in national institutions);
(c)section 15A (personnel records);

(d)section 22 (access to edited copies with exempt or irrelevant matter deleted).

Mandatory access--general rule
(3)The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4)The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects--information or documents otherwise accessible)).

(5)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 the public interest.
Note 1:       Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:       A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:       Section 11B deals with when it is contrary to the public interest to give a person access to the document.

(6)Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a)a conditionally exempt document; and
(b)an exempt document:
(i)under Division 2 of Part IV (exemptions); or

(ii)within the meaning of paragraph (b) or (c) of the definition of exempt documentin subsection 4(1).

SECTION 11B
Public interest exemptions--factors
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2)This section does not limit subsection 11A(5).
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.

Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, 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.

Guidelines

(5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
SECTION 42
Documents subject to legal professional privilege
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3)A document is not an exempt document under subsection (1) by reason only that:
(a)the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b)the information is operational information of an agency.
Note: For operational information, see section 8A.

SECTION 47C
Public interest conditional exemptions--deliberative processes
General rule
(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.

Exceptions
(2)Deliberative matter does not include either of the following:
(a)operational information (see section 8A);
(b)purely factual material.
Note: An agency must publish its operational information (see section 8).

(3)This section does not apply to any of the following:
(a)reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b)reports of a body or organisation, prescribed by the regulations, that is established within an agency;
(c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Dates of hearing:	12 October 2017
Date final submissions received:	19 October 2017
Applicant:	In person
Counsel for the Respondent:	Mr Christopher Tran
Solicitors for the Respondent:	Australian Government Solicitor