Re McKinnon and Secretary, Department of the Treasury
[2004] AATA 1364
•21 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/689 & 809
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL McKINNON Applicant
And
SECRETARY, DEPARTMENT OF THE TREASURY
Respondent
DECISION
Tribunal Justice Downes, President Date21 December 2004
PlaceSydney
Decision 1. The Tribunal decides that the two letters to the Treasurer from third parties dated 17 and 18 October 2000 (numbered above as Documents 3 and 4 in Document A.015) are not within par 36(1)(a) and are not exempt under s 36. Although included in the conclusive certificate that certificate has no operation with respect to them because a conclusive certificate can only apply to a document to which par 36(1)(a) applies.
2. The Tribunal decides that all other documents covered by the conclusive certificates are within par 36(1)(a), not within subs 36(5) or (6) and that there exist reasonable grounds for the claim that disclosure of each of the documents (not already disclosed) would be contrary to the public interest.
3. The Tribunal sets aside the decision that Documents A.013 and A.014 and the two letters numbered 3 and 4 above referred to and their attachments which form part of Document A.015, as well as Documents A.017, A.018, A.019 and A.020 are exempt documents under s 43 of the Act and substitutes a decision that the documents are not exempt under that section.
........[sgd Garry Downes]........
President
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – conclusive certificates – reasonable grounds exist for claims that disclosure would be contrary to the public interest – not purely factual material – not scientific or technical reports – decision varied
FREEDOM OF INFORMATION – access to documents – commercial information – disclosure not unreasonably affect business – disclosure not prejudice future supply of information – disclosure not affect commercial value of information – decision set aside
Freedom of Information Act 1982 (Cth) ss 22, 36, 43, 58, 58A, 58C, 58E, 64, 66
Public Service Act 1999 (Cth) s 10
Aldred and Department of the Treasury (1994) 35 ALD 685
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Bracken and Minister of State for Education and Youth Affairs (1985) 7 ALD 243
Burns and Australian National University (No 2) (1984) 7 ALD 425
Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Cleary and Department of the Treasury (1993) 31 ALD 214
Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1
Department of Industrial Relations v Burchill (1991) 33 FCR 122
Donoghue v Stevenson [1932] AC 562
The Fallon Group Pty Limited and Federal Commissioner of Taxation (1995) 95 ATC 2134
Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266
Harris v Australian Broadcasting Commission (1983) 50 ALR 551
Howard and the Treasurer (1985) 7 ALD 626
MacPhee and Department of the Treasury (1989) 20 ALD 227
McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161
McQuire v Western Morning News Company [1903] 2 QB 100
Mann and Australian Taxation Office (1985) 7 ALD 698
Porter and Department of Community Services and Health (1988) 14 ALD 403
Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589
Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709
Sankey v Whitlam (1978) 142 CLR 1
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Limited (2001) 114 FCR 301
Wallace and Director of Public Prosecutions [2003] AATA 119
Waterford and the Treasurer of the Commonwealth (No 2) (1985) 8 ALN N37
REASONS FOR DECISION
21 December 2004 Justice Downes, President The Scope of Freedom of Information Legislation
Application for Documents relating to the First Home Owners’ Scheme and Taxation “Bracket Creep”
The Hearing
The Relevant Legislation
Section 36 and the meaning of “whether there exist reasonable grounds for the claim” that disclosure is against the Public Interest
The Issues
The Claims in the Certificates
The Evidence
The Internal Working Document Test
The Structure of the Reasons
Examination of the Documents
Documents B.001 to B.010
Documents B.011 to B.013
Document B.014
Document B.015
Documents B.016 and B.017
Document B.020
Document B.021
Document B.022
Document B.023
Documents B.024 to B.033
Documents B.034 to B.039
Document B.040
Documents A.002 and A.003
Document A.015
Document A.032
Document A.033
The Section 43 Claims
Section 22
Conclusion
The Schedule – Bracket Creep
The Schedule – First Home Scheme
The Scope of Freedom of Information Legislation
1. A characteristic of modern society is the clash of interests between, on the one hand, the insatiable desire of the press for information, particularly information about government, and, on the other hand, the need for government, consistently with openness and transparency, to keep confidential that part of its processes which, if disclosed, would prejudice the ordinary business of government.
2. In most situations the public interest will lie with disclosure. The Freedom of Information Act 1982 (Cth) recognises this and provides for it. However, the Act also recognises that there are circumstances in which disclosure is not in the public interest. In some circumstances the Act authorises ministers of the Crown to give conclusive certificates precluding disclosure. This Tribunal has jurisdiction to review decisions taken within government not to make disclosure under the Act. Where a conclusive certificate is given, that jurisdiction is limited to determining whether reasonable grounds exist for the claim in the certificate.
Application for Documents relating to the First Home Owners’ Scheme and Taxation “Bracket Creep”
3. Michael McKinnon is the Freedom of Information Editor of The Australian newspaper. Mr McKinnon applied for disclosure of documents relating to “bracket creep” and the First Home Owners’ Scheme (“First Home Scheme”). The requests were made on 17 October 2002 and 3 December 2002. As the requests were ultimately refined they sought the following:
Bracket Creep
“Reports, reviews or evaluations completed in the 12 months from 3 December 2001 to 3 December 2002 detailing the extent and impact of bracket creep and its impact on revenue collection of income tax, including information in relation to higher tax burdens faced by Australians and/or projections of revenue collection increases from bracket creep, but excluding documents that have already been released publicly or duplicate copies of documents.”
First Home Scheme
“Documents relating to any review/report or evaluation completed on the First Home Buyers Scheme in the last two years, including documents summarising the level of fraud associated with the program, its use by high wealth individuals and its impact on the housing sector’s performance in the Australian economy.”
4. The respondent claimed exemptions for some documents and, following unsuccessful applications for internal review of these decisions, Mr McKinnon applied to the Tribunal for review of the decisions.
5. On 1 December 2003 and 13 January 2004 the Treasurer, the Hon. Peter Costello MP, issued conclusive certificates under s 36 of the Act in respect of a number of documents falling within the two requests. The certificates state “that the disclosure of [the documents] would be contrary to the public interest” (subs 36(3)).
6. A number of documents relating to the First Home Scheme were claimed to be exempt under s 43. That section relates to documents that would disclose information concerning the business, commercial or financial affairs of a person or organization. Other documents were excluded under s 22, as documents that were irrelevant to the request.
7. In respect of the First Home Scheme, 11 documents were withheld either in whole or in part, numbered A.002, A.003, A.013, A.014, A.015, A.017, A.018, A.019, A.020, A.032 and A.033. In respect of bracket creep, 38 documents were withheld either in whole or in part, numbered B.001-B.017 inclusive and B.020-B.040 inclusive. The following table shows the number and type of claims. All the documents which are subject to a claim for exemption under subs 36(1) are covered by a conclusive certificate.
Total subs 36(1) par 43(1)(c) par 43(1)(c) and subs 36(1) s 22 Bracket Creep
(Q2003/809)38 36 - - 2 First Home Scheme
(Q2003/689)11 4 6 1 - 8. A number of documents and parts of documents were released to Mr McKinnon before and during the hearing.
9. There are two separate matters before the Tribunal, namely the bracket creep application (Q2003/809) and the First Home Scheme application (Q2003/689). In each application there is a conclusive certificate under subs 36(3). Where there is no certificate the task of the Tribunal is to review the decision and substitute its own decision if the decision under review is not the correct or preferable decision (subs 58(1)). Where there is a conclusive certificate under s 36 the task of the Tribunal is different. It is to “determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest” (subs 58(5)). I must accordingly deal with separate applications for the disclosure of two categories of documents (bracket creep and the First Home Scheme) and I must apply different criteria to different claims to exemption from production within each category.
The Hearing
10. This matter was initially heard in Canberra from 12-16 July 2004 and on 20 and 21 July 2004. There was a further hearing on 31 August 2004. On 13 October 2004, after initial consideration of the matter, I required production of all the documents which had not previously been produced. I did so pursuant to s 58E of the Act. This led to a directions hearing on 20 October 2004 which was followed ultimately by production of paper copies of the documents on 28 October 2004.
The Relevant Legislation
11. Section 36 is generally described by its statutory heading as relating to “Internal working documents”. The section is not that simple. Subsection 36(1) contains a two part test. First the document must:
“disclose 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 an agency or Minister or of the Government of the Commonwealth” (par 36(1)(a)).
That is the Internal working document requirement. Secondly, the disclosure of the matter must “be contrary to the public interest” (par 36(1)(b)). Further, the section does not apply to some documents even though they are covered by the two part test. The section does not apply to purely factual material (subs 36(5)). Scientific or technical reports are not within the section (par 36(6)(a)).
12. The furnishing of a conclusive certificate is provided for in subs 36(3). The certificate may be given where “a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest”. The certificate must specify the ground of public interest.
13. Section 43, according to its heading, concerns “Documents relating to business affairs etc.” It exempts from disclosure:
“(a) trade secrets;
“(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
“(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.”
Section 36 and the meaning of “whether there exist reasonable grounds for the claim” that disclosure is against the Public Interest
14. The role of decision-maker which I am to play in determining whether matter which is not subject to a conclusive certificate is exempt matter is the usual role of the Tribunal of making the correct or preferable decision. I must substitute my decision for the decision under review. However, that is not my role with respect to matter which is subject to a conclusive certificate. There I am required to determine whether the first test in subs 36(1) is satisfied and, if it is, whether the documents are amongst those to which the section does not apply by virtue of subs 36(5) or (6). With respect to documents which satisfy the first test and which are within the section I am required to “determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest” (subs 58(5)).
15. A number of decisions have examined this test. At least two principles have emerged. First, consistently with the principle that administrative decision-making should relate to the facts and circumstances as they are at the time the decision is made and, in accordance with subs 58(5), the Tribunal must determine whether there exist reasonable grounds for the claim at the time of the review decision and not at the time the conclusive certificate was given. The grounds need not be the grounds given in the certificate (Bracken and Minister of State for Education and Youth Affairs (1985) 7 ALD 243 at 250 per DP Hall; Burns and Australian National University (No 2) (1984) 7 ALD 425 at 438 per DP Todd; Waterford and the Treasurer of the Commonwealth (No 2) (1985) 8 ALN N37 at N43 per DP Todd; Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at 594 per DP Todd). Secondly, “reasonable grounds” means grounds based on reason, as distinct from something “irrational, absurd or ridiculous” on the one hand, or “fanciful, imaginary or contrived” on the other (Porter and Department of Community Services and Health (1988) 14 ALD 403 at 405 per DP Todd; see also Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190 per Bowen CJ and Beaumont J; MacPhee and Department of the Treasury (1989) 20 ALD 227 at 230 per President Hartigan J; Department of Industrial Relations v Burchill (1991) 33 FCR 122 at 125 per Davies J; Cleary and Department of the Treasury (1993) 31 ALD 214 at 220 per President O’Connor J; and Aldred and Department of the Treasury (1994) 35 ALD 685 at 688 per DP McMahon).
16. To say that reasonable grounds must be grounds based on reason does not resolve one critical issue relating to the test. The concept of reasonable grounds conveys more than the idea of reason. Were that not so, the only task for the Tribunal would be to test the logic of the claim and not to examine its basis. What is required is reasonable grounds for the claim. Finding the existence of grounds is an essential aspect of the test. Determining the reasonableness of grounds requires more than reason or logic. It requires the examination of the foundation for the claim. It accordingly seems to me necessary to look past the word reasonable in order to understand the test. The question is how far past? To what extent should a decision-maker look at the underlying facts?
17. This question has not been the subject of so much analysis in the cases. Perhaps the answer has been assumed. However, in Cleary at 220 [28] President O’Connor J stated that the question is: “[D]oes the evidence disclose reasonable grounds for the claim that publication of the documents would be contrary to the public interest?” By stating the question in this way emphasis is placed on the evidentiary base for the grounds. In MacPhee at 231 [32] President Hartigan J referred to “the question of whether or not such considerations are supported, from the evidence before it, by reasonable grounds”.
18. Assistance in understanding what factual basis must be established to show that grounds are reasonable may be found in other contexts. In George v Rockett (1990) 170 CLR 104 the High Court of Australia had to consider the phrase “there are reasonable grounds for suspecting …” in s 679 of The Criminal Code (Qld). Although the words of subs 58(5) of the Act are “reasonable grounds for the claim” subs 36(3) actually requires a Minister giving a conclusive certificate to be “satisfied … that the disclosure of the document would be contrary to the public interest”. The “claim” must be based on that satisfaction. In this light, the claim may be seen to be based in belief. Accordingly, the High Court’s exposition of the meaning of “reasonable grounds for suspecting …” must be of some assistance in understanding subs 58(5) of the Act.
19. In a unanimous joint judgment of the whole Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ), the Court said this (at 112):
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”.
It follows that in the context before the High Court it was, at least, necessary to look at the underlying facts to determine whether there are reasonable grounds for suspecting something. Nevertheless, the provisions of subs 58(5) must be looked at in their own context. They must, for example, require a different approach to the approach required by subs 58(1).
20. The word reasonable is used in two senses in the law. Sometimes it recognises only one possibility; at other times it recognises a range of possibilities. The “ordinary reasonable man” or “the man on the Clapham omnibus” (McQuire v Western Morning News Company [1903] 2 QB 100 at 109) will not usually act on or hold a range of beliefs. One test of negligence is how the reasonable person would act. That may admit of only one answer. However, in the celebrated passage of his speech in Donoghue v Stevenson [1932] AC 562 at 580 Lord Atkin described the duty of care as follows: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. “Reasonable care” admits of a number of possible responses to a situation.
21. The High Court in Rocket were not postulating the hypothetical reasonable person of McQuire but a person whose state of mind was reasonable even though other persons might come to different states of mind which were also reasonable. That is the meaning which I think the phrase “reasonable grounds” has in subs 58(5). Were the phrase to be directed to the mind of a hypothetical reasonable person holding a particular belief the test under subs 58(5) would be little different to the test under subs 58(1). That cannot be correct. The form of s 58 shows that the legislature intended a reduced role for the Administrative Appeals Tribunal when acting under subs 58(5).
22. The way in which the test has been applied in practice can be seen in some lines of reasoning of Tribunal members. President O’Connor J included this statement in dealing with one document in Cleary at 222 [38]: “… [I]t is difficult to conclude that there is no reasonable basis for relying on this ground or that it is ‘irrational, absurd or ridiculous’”. In Aldred, DP McMahon said (at 691):
“I have not considered whether I agree or disagree with the author as to the likely or expected results. I am only concerned to establish whether there exist reasonable grounds for the claim. Others may hold the views of the minister. It would be difficult to say that such opinions were irrational, absurd or ridiculous. It is, as Deputy President Todd observed, a ‘heavy thing for the tribunal to reject a certified claim’”.
23. In accordance with the above I propose to approach my task by asking whether the facts established before me are sufficient to support the claim that disclosure would be contrary to the public interest in the mind of a person guided by reason.
The Issues
24. Paragraph 58C(2)(a) of the Act requires the Tribunal to hold in private any part of the conclusive certificate hearing during which evidence or information is being given or a document is being produced by or on behalf of government respondents or when a submission is being made in support of the claim in the certificate. Subsection 58C(3) requires the Tribunal to prohibit the publication of evidence, information, documents and submissions given while the Tribunal is sitting in private pursuant to par 58C(2)(a). Accordingly, I must not publish any such material in these reasons. That will require me to exercise caution in drafting these reasons and will inevitably make them less extensive than they might otherwise have been.
25. During the hearing the respondent helpfully provided two schedules identifying all the documents with respect to which issues still existed, briefly describing them in a way which did not contravene the legislation, and stating the grounds for exemption. The schedules, slightly modified, are appended to these reasons.
26. The conclusive certificates given by the Treasurer rely upon seven grounds. Predecessors of the schedules appended to these reasons were attached to the certificates. The last column shows the ground or grounds upon which the Treasurer relied to support each claim to exemption. It follows that the grounds relied upon are general. There is not a separate ground for each claim for exemption. The list of grounds is as follows:
“(a)Officers of the Government should be able to communicate directly, freely and confidentially with a responsible Minister and members of the Minister’s office on issues which are considered to have ongoing sensitivity and are controversial and which affect the Minister’s portfolio.
(b)Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record.
(c)The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government’s decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions.
(d)The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.
(e)The release of documents that contain a different version of estimates, projections, costings and other numerical analysis that cannot be put into context because of the absence of any explanation of the variables used or assumptions relied upon has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government’s decision-making process by not fairly disclosing reasons for the final position reached.
(f)The preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of departmental officers and it is appropriate that briefing and other material produced on a confidential basis in the preparation of those responses, remain undisclosed. The release of such documents would threaten the protection of the Westminster-based system of Government.
(g)The release of documents that are intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted. These documents were not intended for publication and publication would be misleading as the documents do not contain sufficient information for an uninformed audience to interpret them correctly and reasonably.”
27. These might be described as class claims. In Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266, DP Hall said this of class claims (at N267):
“The grounds stated in the s 36 certificate did not constitute reasonable grounds for the claim that disclosure of the documents would be contrary to the public interest. Two of the grounds were properly classified as ‘class’ claims (relating to the need for confidentiality in high level communications between Ministers, and for candour and frankness in advice to Ministers). Class claims expressed in those broad terms could not sustain a claim of exemption under s 36(1)(b). Nevertheless, the need to ensure candour and frankness and to maintain confidentiality are relevant facets of the public interest to be considered in an appropriate case”.
Class claims have been criticised in other decisions (see Sankey v Whitlam (1978) 142 CLR 1 at 43 per Gibbs ACJ and at 62-63 per Stephen J; Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 28-30 per Black CJ, Gummow and French JJ).
28. As has been pointed out in a number of decisions (eg. Rae at 594 per DP Todd), the task of the Tribunal in considering a conclusive certificate is to determine whether reasonable grounds exist for the claimed exemption not whether the grounds relied upon by the Minister were reasonable.
29. In the present matters the grounds relied upon by the Minister will guide me but they will not necessarily be the only matters I consider. To the extent to which the generality of the grounds renders them less persuasive I will need to look at how each individual claim might be supported. Because the test is ultimately based in findings of fact and not simply on the process of reasoning attached to a ground relied upon, it will usually be necessary to know something about each document to enable a judgment to be made. Sometimes characterising the document will be enough, particularly where the ground relied upon addressees the document individually. However, where the claim is not obviously good it will usually be helpful to examine the document to see how the document relates to the claim. The same claim might be good for one document but not sustainable for another. I must not, however, disclose the contents of any document or otherwise breach s 58C in these reasons.
30. The first two grounds in the present certificates relate to a variation of what has been called the “frankness and candour” argument the validity of which I will address below. For present purposes, however, I will assume it is valid. It is worth noting that it is entirely possible that such a claim might be sustainable in connection with one document and not with another. The test is not simply whether purposes associated with frankness and candour require classes of documents to be protected so that the release of any documents in the class will compromise the legislative purpose but whether a particular document contains material which makes it reasonable to withhold disclosure of that document on the frankness and candour, or any other, ground.
31. The descriptions in the schedules of documents appended were not adequate to enable me to form a view upholding the claims in the present case. I accordingly required their production pursuant to s 58E of the Act. I have examined each document and I will deal with each claim or potential basis for exemption by reference to the combination of the claim, the contents of the document and the written and oral evidence.
The Claims in the Certificates
32. The first claim is that Government officers should be able to communicate freely with Ministers and their staff. This claim is close to, but not identical with, the “frankness and candour” argument. That basis for a claim for exemption under s 36 has been criticised in a number of cases (Waterford (No 2) at N39 [29] per DP Todd; Cleary at 221 [32] per President O’Connor J; Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139 at 153 [29] per DP McDonald). The statements in these cases find their source in the sentiment expressed by Mason J in Sankey v Whitlam at 97: “…[T]he possibility that premature disclosure will result in want of candour in cabinet discussions or in advice given by public servants is so slight that it may be ignored”.
33. However, in Reith and Minister for Aboriginal Affairs (1988) 16 ALD 709 at 710 [18] President Hartigan J upheld a claim based on “the need for confidentiality in communications between the Minister and the Secretary” despite the absence of evidence “that would suggest that candour would be in some way impaired”. In McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161 at 186 [43] DP McDonald upheld a claim based on confidence using the following words:
“[T]here is a clear public interest in civil servants being able to communicate in confidence information directly to their responsible minister on issues which are considered to be sensitive”.
34. It follows that although claims based on frankness and candour have not been well received the same cannot be said for claims based on the need for confidentiality. This is so notwithstanding the association between the two. The claim based on confidence invites the enquiry, why? One response may be that frankness and candour may be impeded.
35. The claim that there is a need for direct, free and confidential communications with Ministers and their staff is not an irrational claim. Nor is the claim that to defeat this need is against the public interest. A former President of this Tribunal and a current Deputy President have both upheld the claim with respect to communications with Ministers. The present case seeks to include Ministers’ staff. That does not seem to me to involve any extension. A communication with a member of a Minister’s private staff is effectively a communication with the Minister.
36. There may be cases in which the communication itself would not justify the claim being made by a reasonable person but whether that is so in connection with the documents under consideration must await an examination of the documents.
37. The second claim is also associated with the frankness and candour argument but can be seen, on analysis, to be different. The claim is that the risk of disclosure would tend to cause officers to communicate sensitive advice orally and not to commit it to writing.
38. When President O’Connor J in Cleary indicated that the Tribunal had been “unwilling to accept the [‘candour and frankness’] argument in the absence of compelling evidence” (at 221 [32]) she noted that the evidence before her was “that the relevant advice would still be conveyed to the minister, albeit possibly by a different means”. The different means no doubt included an oral communication. No argument was put to her that that response was itself a basis for a public interest in non-disclosure. It is the argument about the response which I must deal with. The argument before me is not that potential disclosure might lead to information not being communicated but that, though it would still be communicated, it might be communicated in a less desirable form, namely orally. The ground is that it is desirable that all communications of advice should be in writing, that risk of disclosure might lead to some important communications of advice being made orally and that it is accordingly not in the public interest to release written advice when such advice might be put in writing less frequently in the future as a response to the likelihood of release.
39. This claim was upheld by DP McDonald in McGarvin at 184 [38]:
“…[T]he tribunal is satisfied that it would be contrary to the public interest for them to be released in that if such material was to be released, officers may feel some reluctance to record sensitive issues if they thought those issues may be revealed for public scrutiny and consequently, would be inhibited from making a record. Since the making of a record is essential to allow government to operate in an informed way and disclosure would defeat that purpose, the tribunal is satisfied that s 36(1)(b) is satisfied …”
40. As with the first claim this claim must be tested with the documents. It is not irrational. It does not fail at the outset.
41. The third claim is the first of three claims which lead to a conclusion that release may be misleading or confusing. The first is that the document discusses options that were not adopted. The second is that the documents were provisional. The third is that there is no explanation of the basis for estimates, projections and costings.
42. The tentative and qualified nature of documents led to DP McDonald upholding claims under subs 36(1) in McGarvin at 217 [120] and 218 [122]. DP Todd and members Sinclair and de Maria in Mann and Australian Taxation Office (1985) 7 ALD 698 at 713 concluded that disclosure of a draft taxation ruling would be contrary to the public interest. DP McMahon in Aldred at 690 [21] upheld a conclusive certificate against a challenge to a claim that a “note for file” might be wrongly construed and cause public confusion. SM Dwyer upheld a public interest claim with respect to a “draft or working document” because its disclosure “would tend to cause confusion or misunderstanding because of the provisional nature of the document” (Wallace and Director of Public Prosecutions [2003] AATA 119 at [57]). The origin of the more recent of these cases is probably in the remarks of Beaumont J in Harris v Australian Broadcasting Commission (1983) 50 ALR 551 when holding that it was against the public interest to disclose “interim reports” containing “opinions of a tentative or provisional kind” because they “could create a misleading, perhaps unfair, impression in the minds of readers…” (at 563). President O’Connor J declined to uphold a challenge to a conclusive certificate claim that journalists and others might misinterpret a document in Cleary at 222 [39]. DP McDonald upheld a public interest claim where notes did “not themselves reveal any comprehensive pattern or express any view which is readily identifiable and able to be put in context” on the basis that “release … is apt to lead to confusion” (McGarvin at 187 [46]). In Aldred at 690 [21] DP McMahon relied upon a possible construction “otherwise [than] in accordance with the intention of the authors” which “could cause public confusion”. A conclusive certificate based on public confusion was upheld in Waterford (No 2) at N40 [35] by DP Todd who placed emphasis on “[t]he distinction between a Treasury document published by the government and a government document …”
43. The sometimes unstated premiss of this group of claims is that where documents do not express concluded views or are not sufficiently self-contained to be meaningful, so that in each case a reader may be misled, there can be a public interest against their disclosure. Such a claim will not be applicable to all freedom of information applications. Where, for example, an applicant wants to be informed as to what is recorded relating to the applicant’s own affairs, or to see how a complaint the applicant made was dealt with, it will not matter that documents may not be meaningful as self-contained sources of information. In those cases the object of the disclosure will not be to discover information of general interest set out in the document. A desire to test the completeness and accuracy of the information will often be the basis for the claim. The object of the applicant may be to see if the material is misleading. Claims such as those raised here will not be available in cases were applicants want to check documents relating to themselves. However, the s 36 ground may apply where the result of the disclosure will be to release misleading information about a topic of general interest when the purpose of the application is to gain access to general information or to government policy relating to such information.
44. The sixth claim relates to the release of documents proposing responses to questions in Parliament. Such a claim was upheld by President Hartigan J in Reith at 711 [22]. DP Todd also upheld a similar conclusive certificate claim in Rae at 610 [65]. In Fewster DP Hall upheld a similar conclusive certificate claim saying that such advice “is necessarily confidential to the Minister at the time it is given …[I]t is a matter for the Minister how, in the light of that advice, he replies” (at N272 [56]).
45. The final claim is that the documents include documents prepared for an expert audience familiar with the jargon and technical terms used which could easily be misinterpreted. DP Todd upheld a conclusive certificate making a similar claim in Waterford at N41 [40] and Member Katz upheld a similar claim in The Fallon Group Pty Limited and Federal Commissioner of Taxation (1995) 95 ATC 2134 at 2140 [40].
46. It follows that claims similar to those raised by the present conclusive certificates have all been upheld in previous decisions of this Tribunal. Many of them did not involve conclusive certificates. The claims were upheld on their merits. In the above summary the cases in which there was a conclusive certificate have been identified. Claims associated with the “frankness and candour” argument have been upheld although in its direct formulation it is said to have been discredited. I note that I have not, in the above analysis, referred to the decision of President Davies J in Howard and The Treasurer (1985) 7 ALD 626, which was criticised by the applicant.
47. An argument was put to me that all Treasury documents had to be prepared with the possibility of release in mind because they had to be prepared in anticipation of the possibility that the Treasurer might release them. It seems to me that the possibility of release by compulsion under the Act will give rise to quite different considerations in the mind of a Government official to the possibility that the Treasurer might release the document. I do not think the two situations can be equated.
48. Nor am I persuaded by an argument that documents might be called for and supplied to a Senate Committee or published by the Auditor-General. Senate Committees have not sought to force production of documents which ministers declined to produce. Auditors-General are not in the habit of publishing specific documents even though they might be given access to them in the course of their duties. A minister will not usually fail in showing that a ground for a certificate under s 36 is reasonable merely because circumstances can be postulated in which a document might become public outside the Act.
49. The applicant said that I should not be impressed by arguments that release of documents might mislead because the Treasury had adequate facilities to explain documents or put them in context. This argument wrongly assumes that correcting information will come to the attention of persons reading the documents disclosed. The ability of the Treasury to explain or correct will not adequately correct the problem. In any event, the Act does not provide that an exempt document can cease to be exempt if the Commonwealth or its relevant agency can publish further information which will correct the circumstance which caused the document to be exempt.
50. A significant argument was also raised by the applicant based on the obligation of public servants to uphold the Australian Public Service Values set out in s 10 of the Public Service Act 1999 (Cth) including the obligation to provide “frank, honest, comprehensive, accurate and timely advice” (par 10(1)(f)) and to be “openly accountable for its actions…” (par 10(1)(e)). This is matter I will take into account but it is not conclusive. The same can be said with respect to the obligations imposed on the Government by the Charter of Budget Honesty Act 1998 (Cth) which requires specific publication of a range of “budget, economic and fiscal outlook” reports.
51. In assessing the weight of the evidence adduced on behalf of the Treasury the respondent asked me to take into account the fact that before and during the hearing documents and parts of documents were released to the applicant which were covered by the conclusive certificates and were the subject of sworn evidence supporting the claim for exemption. I was asked to infer that claims to exemption had been made too lightly. There is force in this argument. However, the witnesses who admit errors in their evidence and correct them, rather than defending earlier evidence which is wrong, are sometimes the most reliable of witnesses. While I will take this criticism into account I am not sure that a respondent in a freedom of information claim which is constantly reviewing its decisions and releasing further matters when that seems to be appropriate should be criticised for this.
52. Where a document genuinely attracts consideration of a claim which has previously been upheld by the Tribunal under s 36 a finding that “there exist reasonable grounds for” a s 36 claim may not require a great deal more. A decision upholding a claim which has not been corrected on appeal must provide some basis for a positive finding that where a factual basis exists the grounds are reasonable. However, I accept that it is ultimately for me to be satisfied with respect to each document before me.
The Evidence
53. Evidence was given before me on behalf of the applicant by a number of distinguished experts. The first of these was a former Secretary of the Attorney-General’s Department (Alan Rose). He was President of the Australian Law Reform Commission during its review of the Act. The report (ALRC Report Number 77) is “Open Government: Review of the Federal Freedom of Information Act 1982”.
54. Mr Rose’s evidence was contained in an affidavit read in the proceedings. Senior Counsel for the Treasury did not seek to cross-examine Mr Rose. There is no doubt of Mr Rose’s expertise and distinction. In the absence of cross-examination I will accept his evidence.
55. Mr Rose’s evidence emphasised the importance of freedom of information legislation. He cited passages from the ALRC Report. He stressed the importance of the matters to which the present application relates. He then turned to the separate grounds in the conclusive certificates. He sought to contradict the claim inherent in each ground. For example, he said that in his experience the release of even very sensitive and controversial documents did not impede public servants’ direct and free communication with Ministers.
56. This evidence provides the applicant with a basis for challenging the certificates. It does not follow, however, that when such evidence is adduced the test in subs 58(5) of the Act will be satisfied. There are a number of reasons for this. First, as the words of Mr Rose themselves show, he is giving evidence of his experience. Secondly, notwithstanding Mr Rose’s distinction his evidence is stated largely in the form of conclusions which are drawn from primary evidence which is generally unstated. Thirdly, the evidence does not exclude others from holding different opinions. In this regard I also have evidence from relevant Treasury officers. Their evidence, if accepted, much more closely addresses the claims made for the documents under consideration. Their experience is direct and contemporary. Fourthly, Mr Rose is addressing the validity of the reasoning as much as the factual basis for the grounds and that is not a matter wholly determined by expert evidence. The views of others, including the views of members of tribunals considering claims under the Act, are relevant. Fifthly, the test itself, as I have found it to be, requires a consideration of all the available reasonable opinions. To assess one expert opinion as definitive would not be to apply subs 58(5). Finally, the ultimate question of whether reasonable grounds exist is a matter for me.
57. I have chosen the first ground addressed by Mr Rose as an example. However, the observations apply also to the other grounds. I will, of course, consider the opinions of Mr Rose in my assessment of the claims but I will not regard them as definitive.
58. Evidence was next given on behalf of the applicant by the editor of The Australian newspaper, Mr Michael Stutchbury. He gave evidence establishing public interest in the matters covered by the documents subject to the request. That interest is not to be doubted. I do not think that the contrary was suggested. The grounds claimed for exemption fall into two broad categories:
(1)Disclosure would compromise necessary confidentiality (grounds (a), (b) and (f)).
(2)Disclosure would mislead (grounds (c), (d), (e) and (g)).
59. Neither of these grounds challenge the existence of a substantial public interest in knowing the subject matter. Indeed, several grounds build on it - it is the importance of the subject matter which strengthens the conclusion that matters should not be disclosed which might mislead. The first category looks at a different and potentially conflicting public interest. The public interest in having access to material on important topics is not in doubt. But there may be another public interest, in permitting confidential communications with Ministers of the Crown and their advisors particularly where release of such documents might have some adverse effect on the ordinary operations of government. This public interest may conflict with a public interest in disclosure of important information available to government. The primary role of government is to govern. Interference with the smooth carrying out of that role will be against the public interest.
60. Mr Stutchbury also gave evidence challenging the validity of the grounds stated in the conclusive certificates. This evidence is subject to the same comments as the evidence of Mr Rose. Much of Mr Stutchbury’s evidence concentrated on the public interest in free and informed community debate and upon the robustness of modern government which can accommodate such debate. This is not to be doubted. However, there remains a legitimate potential public interest in letting government get on with its role without unnecessary intrusion and distraction. Provided the latter view is a reasonable view it will be difficult to upset a conclusive certificate based on it.
61. Further evidence on the public interest in the subject of the documents sought and against the sustainability of the grounds in the conclusive certificates was also given by Tony Harris, currently a senior financial writer and journalist who had a distinguished career in the Commonwealth Public Service. He was, for a time, the head of the office of the Hon. John Dawkins when he was Treasurer. He was Auditor-General for New South Wales between 1992 and 1999.
62. The applicant’s final witness was Peter Dixon, Professor and Director in the Centre of Policy Studies at Monash University, an economist. His evidence was more concerned to show the documents would be of particular interest to applied economists and similar experts. This evidence supplied incidental support for the proposition that much of the material would be difficult for ordinary readers to understand. He did make the point that exercises of the kind covered by the documents such as costings of options for indexation of income tax scales are not easy to perform outside the Commonwealth Public Service because they require access to data that is not in the public domain.
63. The respondent had six witnesses. They all made affidavits which were read. Two of them, Wilhelm Harnisch and Scott Lambert, gave evidence relating to the s 43 claims. I will deal with that evidence when I deal with those claims. The remaining four witnesses were all officers from the Treasury. The most senior witness was Richard Murray, Executive Director, Fiscal and Corporate. His immediate supervisor is the Secretary. All his evidence both by affidavit and orally was given pursuant to subs 58C(2) at a hearing held in private. Pursuant to subs 58C(3) I cannot publish any of the evidence. The other witnesses were James Hagan, General Manager of the Domestic Economy Division, Macroeconomic Group, Philip Gallagher, the manager of the Retirement and Income Modelling Unit and Laurine Edsor, a senior advisor in the Integrated Tax Design Unit, Tax Design Division. Part of the evidence of these witnesses was given in public. That included evidence relating to whether the documents were internal working documents as defined in subs 36(1) and whether matter in the documents was irrelevant under s 22. Each of these witnesses also gave evidence in a hearing in private. Some of this evidence was oral.
64. Prior to the commencement of the hearing the respondent served all its affidavit evidence on the applicant. In those circumstances, although some of the evidence was received in a hearing held in private, I gave directions pursuant to par 58C(3)(a) that the applicant and his legal representatives could be present. I permitted the applicant’s legal representatives to cross-examine each of the witnesses, although not as to the contents of the documents. I permitted Mr Murray and Mr Gallagher to give some oral evidence in a hearing held in private from which the applicant and his legal representatives were excluded.
65. The most significant evidence given by the respondent’s witnesses I cannot disclose. This seems to me to be required by subs 58C(3) even though much of this evidence was disclosed to the applicant. I can disclose the evidence relating to the internal working documents issue and the relevance issue but that evidence was mostly confined to describing documents and largely does not call for repetition.
66. I can say that the evidence given in private was supportive of the claims made in the conclusive certificates. This was particularly true of the evidence of Mr Murray. Although his evidence did not address the conclusive certificate claims directly it did address the generic grounds I identified in par [58] and provided support for each of the grounds in the conclusive certificate. The importance of this evidence is that it supports the existence of an alternative reasonable opinion from the opinions expressed by the applicant’s witnesses. Mr Murray was cross-examined. The cross-examination did not demonstrate the evidence to be unreasonable. It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable. That is not the subs 58(5) task. Provided there is a reasonable basis for an opinion and there is evidence to support it the test in subs 58(5) will be satisfied. The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in the conclusive certificates here.
67. The evidence of the other Treasury witnesses was more directly concerned with each of the documents. This evidence linked the documents with the claims and incidentally provided support for the claims. There is evidence from one or other of the Treasury witnesses other than Mr Murray addressing each document I must consider.
The Internal Working Document Test
68. Subsection 36(1) addresses a complex set of alternative possibilities. It has created problems of construction in the past (eg. Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Limited (2001) 114 FCR 301 at 309 [30] per Tamberlin, Mansfield and Emmett JJ). As I read the section the alternatives may be expressed so that it attracts documents the disclosure of which would disclose matter:
(1) (a) in the nature of; or
(b) relating to
(i) opinion
advice; or
recommendation
– [that was] –
obtained
prepared; or
recorded
OR
(ii) consultation; or
deliberation
– [that has taken place] –
(2) (a) in the course of; or
(b) for the purposes of
the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth.
69. A number of decisions have sought to paraphrase or explain different phrases in the section. Many of these decisions were referred to me. I will keep them in mind. However, primarily I will seek to address the issues by reference to the words of the section themselves.
70. Subsections 36(5) and (6) respectively provide relevantly that s 36 “…does not apply to a document by reason only of purely factual material contained in the document” or to “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”. I note that such material can be severed from exempt material in a document so that the non-exempt material is disclosed although in Chapman, DP McDonald (at 150 [22]) observed that there can be statements of fact “which are so close to the deliberative process that they form part of it …”
71. In Harris at 563, in holding that the reports of an “expert in the field of legal professional practice” did not fall within the exemption in par 36(6)(a) Beaumont J said:
“[T]he reference, in s 36(6)(a) to ‘technical experts’ is, I think, intended to describe experts in the mechanical arts and applied sciences generally … No doubt [the legal expert] may be confronted with technical legal questions from time to time in the course of her review, but it does not necessarily follow that she is acting as a ‘scientific or technical expert’ within the meaning of s 36(6)(a)…”
This passage has been approved in Waterford at N349 and Cleary at 216. I see no reason why I should not follow it. In Cleary at 216 [8] President O’Connor J held that reports by the Joint Economic Forecasting Group, containing economic forecasts, were not reports of scientific or technical experts. Her Honour described the reports as containing “expressions of opinion and advice, based on economic assumptions and forecasts, given for the purposes of formulating high level government economic policy”. If President O’Connor J’s conclusion and reasons are correct none of the documents I must consider are reports of scientific or technical experts. Again, I see no reason why I should not follow President O’Connor J.
72. The fact that the draftsman has used a combined phrase, “scientific or technical experts”, seems relevant to me. If both parts of the formulation were intended to have wide application then the other may not have been necessary. “Scientific” in ordinary use of language will usually refer to the natural and physical sciences. This is “Science” as it is used in school and university curricula. Faculties of Science are to be contrasted with Faculties of Arts, Law and Economics. We tend not to use “scientific” with the wider meaning that would cover law and economics in the way that the French “scientifique” is understood. Much the same can be said of “technical”. Here the relevant use is found in references to “Technical Colleges” which stress the mechanical arts and applied sciences.
73. I will, of course, address each document on its merits but I will bear in mind the authorities, which I will follow, and my own similar inclination as to the meaning of “scientific or technical experts”. I note, however, that whether or not the documents I must consider fall within subs 36(6) is unlikely to turn on different potential shades of meaning of the phrase.
The Structure of the Reasons
74. The course I will follow in these reasons is to commence with the bracket creep matter and then deal with the First Home Scheme matter. I will begin by addressing the first part of the test in subs 36(1) followed by considering whether subs 36(5) or (6) cause the documents to fall outside the section. For all documents which require further consideration I will then address the subs 58(5) question whether reasonable grounds exist for the claim for exemption from disclosure. Where insignificant parts of documents have been disclosed I will not refer to this. For the First Home Scheme matter, I will also consider the claims under s 43. These overlap with the conclusive certificate claims for one document. Finally I will consider claims that documents are irrelevant where I have material which will enable me to do so.
Examination of the Documents
Documents B.001 to B.010
75. Documents B.001 to B.010 are all documents emanating from the Australian Tax Office addressed to Treasury officers. Their subject matter is outlined in the schedule. For all documents in issue in this matter that description should be treated as incorporated in these reasons. Each of these documents is an advice or recommendation or both which was prepared for the purposes of the deliberative processes of Government. I have subjected each document to the precise test in par 36(1)(a). To the extent to which the documents could be said to address factual material they are really predictions as to the future and could not be treated as fact. The only fact is the fact of the advice which is not factual material within subs 36(5). In any event the material that might be argued to be factual is just part of the deliberative process. The documents are not reports of scientific or technical experts both because of the meaning of that phrase discussed above and because they are not in the form of scientific or technical reports but rather in the form of advices containing predictions relating to narrow issues on which advice had been sought. It is not sufficient that some of the material in the documents might be described as technical information. When handed the documents and asked what they were no one would reply that they were reports of scientific or technical experts. This is so for all the documents I must consider in this matter. The above observations should be treated as applying in each case. It follows that the documents fall within par 36(1)(a) and are not excluded by subs 36(5) or (6). I must determine pursuant to subs 58(5) whether reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest. The Treasury relies upon grounds (c), (d), (e) and (g) set out above.
76. Each of the documents certainly relates to options not settled, is provisional in nature and contains different versions of estimates, projections, costings and other numerical analysis which are not explained. The documents contain jargon and acronyms which would be meaningless to the average reader. The average reader would have difficulty in understanding the conclusions and even greater difficulty in understanding the reasoning and methodology.
77. To my mind all of the documents provide a substantial factual basis for concluding that they fall within claims (c), (d), (e) and (g). Those are rational grounds. They have support in the authorities and in the evidence. Accordingly, without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest.
Documents B.011 to B.013
78. The only real difference in characterisation between these documents and documents B.001 to B.010 is that these are internal Treasury documents with attached minutes from the Australian Tax Office containing various projections of numbers of taxpayers and of taxpayer movements. I have examined them in accordance with the tests applied to documents B.001 to B.010 and I am satisfied that they are within par 36(1)(a), are not excluded by subs 36(5) or (6) and that reasonable grounds exist for the claim that their disclosure would be contrary to the public interest in accordance with grounds (c), (d), (e) and (g).
Document B.014
79. Document B.014 is within par 36(1)(a). From this point in these reasons where I make a finding that a document is within par 36(1)(a) that will include a finding that neither subs 36(5) nor subs 36(6) has the consequence that s 36 does not apply unless I deal with that issue expressly. The document is an email from the Treasury to the Treasurer’s office with an attached executive minute containing projected costings and advice on personal income tax policy options. This document, as one would expect, is more readily comprehensible by an ordinary reader. However, in addition to grounds (c), (d), (e) and (g) the conclusive certificate claims exemption also on ground (a) relating to confidentiality of communications and ground (b) relating to the prospect that written communications might be replaced by oral advice. Because the document is easier to understand its provisional nature becomes clearer as does the tentativeness of the predictions. I would be less inclined to uphold the claims with respect to this document pursuant to grounds (e) and (g) but I do uphold the claims as reasonable grounds under (c) and (d). I also find that grounds (a) and (b) give rise to reasonable grounds.
80. Some parts of document B.014 have been deleted as irrelevant. They relate to income splitting. I agree that they are not relevant. If they were relevant they would be in the same category as the parts I have held to give rise to reasonable grounds.
Document B.015
81. The document is a briefing on a resolution of the Federal Council of the Liberal Party, with some background material provided by the Treasury to the Treasurer. Only a small part of this document has been excluded. The grounds claimed are (a), (b), (c), (d) and (e). I find that the document is within par 36(1)(a) and that each of the grounds claimed support the finding that reasonable grounds exist for the ultimate claim.
Documents B.016 and B.017
82. Document B.016 is a draft of document B.017. Only part of the document is claimed to be exempt. The document is an executive minute providing a background briefing on a newspaper article, including projections, costings and policy advice. Parts of an attachment to the final document being the photocopy of the page of a newspaper are claimed to be irrelevant. They plainly are. There are minor differences between the passages for which exemption is claimed in the two documents but the differences are not material. The passages are plainly within par 36(1)(a) and for similar reasons to the reasons I have given above it seems to me that grounds (a), (b), (c), (d), (e) and (g) sustain the reasonableness of the claim.
Document B.020
83. Most of document B.020 has been released. The document contains draft correspondence to a newspaper prepared by the Treasury. The excluded portions are said to be irrelevant. I agree. It may be that parts of the document which have been released are also irrelevant but I need not concern myself with that.
Document B.021
84. The document is an email from within the Treasury attaching a briefing on labour and taxation issues. Some of this document has been released. A small part is the subject of a claim to exemption. The balance is said to be irrelevant. So far as the claim to exemption is concerned I am satisfied that the document is within par 36(1)(a). Exemption is claimed on grounds (a), (b), (c), (d) and (e). In my opinion grounds (c) and (d) do not arise from the facts but the material in the documents is sufficient to justify under subs 58(5) a claim under grounds (a), (b) and (e). Grounds (c) and (d) would justify part of the material claimed to be exempt but as other grounds apply to the whole of the material claimed to be exempt I need not explore this further. I agree that the parts of the document said to be irrelevant are correctly so described.
Document B.022
85. This is a short document. It is a Treasury internal note discussing long-term projections. Five lines are covered by the conclusive certificate under grounds (c), (d) and (e). The document is within par 36(1)(a). The grounds relied upon sufficiently support the claim pursuant to the test in subs 58(5). The remainder of the document (six lines) is said to be irrelevant. I agree.
Document B.023
86. The document is an email forwarding an earlier email regarding an address by a senator on taxation and other matters. Most of this document has been released. The parts not released are said to be irrelevant. I agree.
Documents B.024 to B.033
87. These documents are all briefs as to possible answers to questions which might be asked in the Parliament. They were prepared by the Treasury for the various Treasury Ministers, mainly in response to different recommendations, comments, and articles published in the media. The claim is made with respect to each of them under grounds (a), (e) and (f). Ground (c) is added with respect to documents B.025, B.026, B.031, B.032 and B.033, and ground (d) with respect to documents B.027, B.029, B.030, B.031, B.032 and B.033. Ground (g) is added with respect to document B.033. The documents are within par 36(1)(a). I have read each of them carefully. It seems to me that grounds (a) and (f) are justified with respect to each of them. It is accordingly not necessary for me to deal with the other grounds. I note that parts of the documents have been released and other parts are the subject of a claim that the material is irrelevant. Where that claim has been made I agree with it.
Documents B.034 to B.039
88. These are all spreadsheets. They were prepared by the Treasury. The spreadsheets contain calculations of tax liabilities under different circumstances. They are within par 36(1)(a). They are extremely difficult to understand because they are accounting documents which require explanatory material or a level of expertise in the relevant form of accounting. Grounds (c), (d), (e) and (g) are relied upon. I am satisfied that grounds (e) and (g) support the claim in the conclusive certificate to the extent required by subs 58(5).
Document B.040
89. The bulk of this document has been released. It is a fax from a member of the Treasurer’s staff to the Treasury enclosing a collection of material on bracket creep. The document is within par 36(1)(a). The grounds are (a), (c), (d), (e), (f) and (g). I am satisfied that within the tests in subs 58(5) grounds (a), (e) and (g) are sustained. Two pages of the document have been deleted as irrelevant and I agree with that.
90. I turn to the documents relating to the First Home Scheme.
Documents A.002 and A.003
91. These documents are within par 36(1)(a). The grounds are (a), (b) and (f) in the case of the first document and grounds (b) and (f) in the case of the second document. The first document is clearly a document prepared to suggest answers which might be given to questions asked of one or other of the Treasury Ministers in the Parliament. For reasons I have already given I consider that the test in subs 58(5) is satisfied with respect to such documents, including this document. The status of the second document is not so clear notwithstanding the fact that I have evidence relating to it. There is evidence that the document is a briefing intended for one of the Treasury Ministers relating to the operation of the First Home Scheme. I accept this although the actual document is addressed to a Treasury officer. The text of the document shows that it is suggesting the content of a possible public statement or answers to questions. It seems to me that the subs 58(5) test is made out with respect to the genus relating to the public interest of which ground (f) is a species. Grounds (a) and (b) also satisfy the subs 58(5) test for the first document and ground (b) for the second document.
Document A.015
92. Exemption is claimed for this document under s 36 and, as to part of it, under s 43. I will here deal with s 36. The document is an Executive Minute from within the Treasury to the Treasurer. Copies are addressed to the Assistant Treasurer and the Minister for Financial Services and Regulation. With the exception of two letters referred to below the document is plainly within par 36(1)(a). The grounds relied upon in the conclusive certificate are (a) and (b). The document contains a number of attachments. These include letters from third parties to the Treasurer and draft replies to those letters. The draft replies satisfy the subs 58(5) test. The actual replies are documents which are only subject to subs 43(1) claims. I will deal with them shortly (Documents A.018 and A.019). The letters to the Treasurer are covered by the conclusive certificate. I cannot see how they can be within par 36(1)(a) even as attachments to a confidential minute. They are not entitled to exemption under s 36. However, they are also subject to claimed exemption under subs 43(1). I will deal with them further under that ground. The remainder of the document is sufficient to satisfy the subs 58(5) test under grounds (a) and (b).
Document A.032
93. Document A.032 is a Treasury executive minute to the Treasurer outlining possible policy alternatives for phasing out the scheme. It is within par 36(1)(a). The grounds claimed are (a), (b) and (e). I find that all grounds are satisfied pursuant to the subs 58(5) test.
Document A.033
94. Document A.033 is an executive minute to the Treasurer outlining possible policy alternatives for extending the scheme. It contains a lot of technical information and charts. It is within par 36(1)(a). The grounds claimed are (a), (b) and (c). I find that the document sufficiently satisfies the subs 58(5) test for those grounds.
95. In the result I find that all documents, with the exception of two letters to the Treasurer by third parties which are part of Document A.015, covered by the two conclusive certificates satisfy the test set out in subs 58(5) of the Act. In consequence the Treasurer is not required to make any further decision pursuant to s 58A of the Act with respect to any documents other than the third party letters.
The Section 43 Claims
96. Two parts of s 43 are relevant. They are pars 43(1)(b) and 43(1)(c).
97. Paragraph 43(1)(b) exempts documents that would disclose:
(1) information
(2) having a commercial value
(3) that:
(a) would be; or
(b) could reasonably be expected to be -
(a) destroyed; or
(b) diminished
if the information were disclosed.
The lowest level of protected information must therefore be information having a commercial value that could reasonably be expected to be diminished if the information were disclosed.
98. Paragraph 43(1)(c) relevantly exempts documents that would disclose:
(1) information
(2) concerning
(3) (a) business; or
(b) commercial; or
(c) financial
affairs of
(4) (a) an organization; or
(b) an undertaking
(5) the disclosure of which
(a) would; or
(b) could reasonably be expected to
(6) unreasonably affect that organization or undertaking
(7) in respect of its lawful business, commercial or financial affairs
OR
(5) the disclosure of which
(6) under this Act
(7) could reasonably be expected to
(8) prejudice the future supply of information to
(a) the Commonwealth; or
(b)an agency for the purpose of the administration of a law of the Commonwealth or of a Territory; or
(9)prejudice the administration of matters administered by an agency.
99. There are effectively eight documents for consideration. They are:
(1) A letter from the Commonwealth Attorney-General to the Treasurer dated 23 November 2000 forwarding correspondence received from housing industry bodies making submissions relating to the First Home Scheme (Document A.013).
(2) A letter from the Minister for Industry, Science and Resources to the Treasurer dated 24 November 2000 relating to submissions from housing industry bodies relating to the First Home Scheme (Document A.014).
(3) A letter to the Treasurer dated 17 October 2000 from a housing industry body making representations about the First Home Scheme and containing housing industry statistics and predictions (Part Document A.015).
(4) A letter to the Treasurer dated 18 October 2000 from another housing industry body making representations about the First Home Scheme and containing housing industry statistics and predictions (Part Document A.015).
(5) A letter from the Treasurer to the Minister for Industry, Science and Resources dated 15 December 2000 in reply to Document A.014 (Document A.017).
(6) A letter dated 15 December 2000 from the Treasurer to the housing industry authority who wrote the letter of 18 October 2000 (Document A.018).
(7) A letter dated 15 December 2000 from the Treasurer to the housing industry authority who wrote the letter of 17 October 2000 (Document A.019).
(8) A letter dated 15 December 2000 from the Treasurer to a real estate industry body in reply to a letter from that body dated 29 November 2000 (Document A.020).
100. In determining the claims for exemption under s 43 I must apply subs 58(1) and not subs 58(5). I will consider each document afresh.
101. Exemption under par 43(1)(c) was claimed for each of the eight documents. However, the housing industry body which sent the letter of 18 October also claimed exemption under par 43(1)(b). That claim applies to documents (2), (4), (5), (6) and (8).
102. In determining exemption under s 43, I have had regard to a concession, in evidence before me, made by the two housing industry bodies, namely:
“Neither [housing industry body] can rule out the possibility that the information contained in each of the documents claimed to be exempt may have been published by either organisation at a presentation, seminar, discussion or public event, by way of a media release, newsletter, public announcement, or letter to members, or through discussion with a representative of a media outlet; but that concession says nothing about the likelihood of such a publication ever having occurred.”
103. The key documents in considering this claim are Documents 3 and 4. That is because the claims relating to the other documents depend upon those documents disclosing material in Documents 3 and 4.
104. Documents 3 and 4 are written by associations of members who are active in the housing and building industry. They do not carry on any housing or building activities themselves. They provide services to their members including making submissions to government on their behalf. This is an important part of the roles of both associations. Making submissions to the Commonwealth Government is an important part of these activities.
105. Document 4 is two pages with an attachment of seven pages. Both documents contain statistics and predictions relating to the housing industry as well as submissions relating to the First Home Scheme.
106. The documents do not concern the business, commercial or financial affairs of the association except to the extent that material relating to the industry in which the association is active could be so described.
107. Much of the statistics and information contained in the documents is based upon published Commonwealth data or upon data provided by other third parties. There is little information that could be said to be information exclusively known to the association or drawn from its original research. The evidence does not address the source of information in the documents where the source does not appear from the documents themselves. There is, for example, a claim as to what would be the revenue impact of a particular increase in the First Home Grant. No explanation appears as to how the calculation was made. In these circumstances the value of the information to third parties would be limited.
108. I have grave doubts as to whether any of the information in the documents concerns the business, commercial or financial affairs of the association. However, I do not need to finally determine that because I do not think that any of the information should or could reasonably be expected to affect the association in its lawful business, commercial or financial affairs. The test under subpar 43(1)(b)(i) is, in any event, whether there could reasonably be expected to be an unreasonable affectation. In my opinion, there could not.
109. The alternative test in subpar 43(1)(c)(ii) is whether disclosure of the information under the Act could reasonably be expected to prejudice the future supply of information or prejudice administration, in each case, in the way specified in more detail above. A witness on behalf of the association did give evidence that the association might be more circumspect in the future in furnishing information as part of its lobbying activities if its documents were disclosed.
110. It was said that the information was supplied in confidence. However, the letter and attachment supplying the information contained no statement that it was supplied in confidence. It is more difficult to infer information is supplied in confidence when it is supplied to a government whose information is covered by freedom of information legislation than it is to a private business. I note also that the association is unable to say that the information in the documents has not been published in one or other of the ways outlined in its concession.
111. I do not doubt the sincerity of the evidence but, having reviewed the documents, I find that there is nothing in the material which if disclosed would or could reasonably be expected to prejudice the future supply of information or otherwise prejudice the administration of an agency. I cannot see any reason why the association would fear disclosure or consider that it was disadvantaged by it. The alternative test in the paragraph is not satisfied.
112. Document 3 is a very similar style of document to Document 4. It is two pages with a single page attachment. However, there is less statistical material than is contained in Document 4. Evidence was given that disclosure might affect the willingness of the association to supply information in the future. Again the information was said to have been supplied in confidence although no express claim was made. The same concession was made by the association as to possible publication.
113. For the same reasons I have given with respect to Document 4 I find that the claim under par 43(1)(c) has not been made out.
114. Document 4 is also claimed to be covered by par 43(1)(b). I pause to note that, in terms, par (c) does not apply if par (b) does. The ordinary order would be to deal with par (b) first. However, I have reversed the order because both Documents 3 and 4 were claimed to be within par (c), because that was the primary way the case was put and because the claim under par (b) only arose late in the hearing.
115. I have no doubt that submissions to government of the kind under consideration here could contain information with a value which might be diminished by publication. If a submission attached a survey which gathered useful statistics relating to housing expenditure which was not available elsewhere, particularly where the information sufficiently disclosed the method of making the survey to support its validity, then the information would have value which disclosure could diminish. However, Document 4 does not contain such information or anything approaching it. At best it contains unsupported assertions which might be based on work done by the association. If it does, such material has not been identified to me.
116. The claim under par 43(1)(b) must fail.
117. Once the claims for Documents 3 and 4 fail so must the claims for Documents 1, 2, 5, 6, 7 and 8. Exemption from disclosure is only claimed because they repeat material from Documents 3 and 4.
118. In the result the claims under s 43 wholly fail.
Section 22
119. I have examined the parts of all documents which have been provided to me where a claim is made that material is irrelevant. I find that the claims are made out.
Conclusion
120. I will determine that the two letters to the Treasurer from third parties dated 17 and 18 October 2000 (numbered above as Documents 3 and 4 in Document A.015) are not within par 36(1)(a) and are not exempt under s 36. Although included in the conclusive certificate that certificate has no operation with respect to them because a conclusive certificate can only apply to a document to which par 36(1)(a) applies.
121. I will determine that all other documents covered by the conclusive certificates are within par 36(1)(a), not within subs 36(5) or (6) and that there exist reasonable grounds for the claim that disclosure of each of the documents (not already disclosed) would be contrary to the public interest.
122. I will set aside the decision that Documents A.013 and A.014 and the two letters numbered 3 and 4 above referred to and their attachments which form part of Document A.015, as well as Documents A.017, A.018, A.019 and A.020 are exempt documents under s 43 of the Act and substitute a decision that the documents are not exempt under that section.
123. The applicant put submissions to me that, depending upon its level of success, I should recommend to the Attorney-General under s 66 of the Act that the costs of the applicant should be paid by the Commonwealth. For me to consider making such a recommendation the applicant must be “successful, or substantially successful”. The applicant has not satisfied that requirement. Accordingly, I make no recommendation under s 66.
124. The documents produced to me will be returned pursuant to ss 58E and 64.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President
Signed: ........[sgd Shamus Toomey]........
AssociateDates of Hearing 12-16 and 20-21 July and 31 August 2004
Date of Decision 21 December 2004
Counsel for the Applicant Dr JE Griffiths SC with Mr JK Kirk
Solicitor for the Applicant Corrs Chambers Westgarth
Counsel for the Respondent Mr RRS Tracey QC with Ms M Campbell
Solicitor for the Respondent Australian Government Solicitor
The Schedule – Bracket Creep
Doc No.
and PgsAuthor Addressee Date Description Exemption claimed Parts over which exemption claimed Conclusive Certificate
Public Interest Reasons as per Conclusive certificateB.001
2 pgsBarry Gray, ATO Phil Gallagher, Treasury 20 Jun 2002 Minute outlining costing of indexing the personal tax scale using a particular methodology. Contains costing projections to 2005/06 and values of parameters and hypothetical gross tax thresholds. s36(1) Whole document except:
— then current tax scale in middle of second page (released 27/04/2004)
— Material above and including the subject header at top of page 1 (released 12/07/2004); and
— Material above and including the Data and Assumptions / CPI Parameters (Budget Parameters) for 2001-02 on page 2 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.002
1 pgBarry Gray, ATO Peggy Hausknect, Treasury 09 Jul 2002 Minute outlining costing of indexing the personal tax scale using a particular methodology. Contains costing projections to 2005/06. s36(1) Whole document except material above and including the subject header at top of page 1 (released 12/07/2004). Yes
(c), (d), (e), (g)
B.003
3 pgsBarry Gray, ATO Susan Morrissey, Treasury 09 Oct 2002 Minute outlining costing of indexing the personal tax scale using a particular methodology. Contains costing projections to 2005/06 and values of parameters and hypothetical gross tax thresholds. s36(1) Whole document, except:
— then current tax scale in middle of third page (released 27/04/2004);
— Material above and including the subject header at top of page 1 (released 12/07/2004); and
— Material above and including the Data and Assumptions / AWE Parameters (Budget Parameters) for 2001-02 on page 3 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.004
1 pgBarry Gray, ATO Phil Gallagher, Treasury 11 Oct 2002 Minute estimating the number of taxpayer's who are a pay rise away from entering the 42% gross tax bracket using a particular methodology s36(1) Whole document except material above and including the subject header at top of page 1 (released 12/07/2004). Yes
(c), (d), (e), (g)
B.005
4 pgsBarry Gray, ATO Susan Morrissey, Treasury 14 Oct 2002 Minute outlining costing of indexing the personal tax scale using a particular methodology. Contains costing projections to 2004/05 and values of parameters and hypothetical gross tax thresholds. s36(1) Whole document except:
— then current tax scale in middle of third and fourth pages (released 27/04/2004);
— Material above and including the subject header at top of page 1 (released 12/07/2004);
— Material above and including the Data and Assumptions / CPI Parameters (Budget Parameters) for 2001-02 on page 3 (released 12/07/2004); and
— Material above and including the Data and Assumptions / AWE Parameters (Budget Parameters) for 2001-02 on page 4 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.006
1 pgBarry Gray, ATO Phil Gallagher, Treasury 18 Oct 2002 Projection of the percentage of tax filers with a tax rate of 30% or less from 2000-01 to 2004-05 s36(1) Whole document except material above and including the subject header at top of page 1 (released 12/07/2004). Yes
(c), (d), (e), (g)
B.007
2 pgsATO Treasury 05 Nov 2002 E-mail with attached table on taxfilers who might cross a tax threshold of $20,000 or above up to 2005-06. s36(1) Whole document except page 1 (released 27/04/2004). Yes
(c), (d), (e), (g)
B.008
3 pgsBarry Gray, ATO Phil Gallagher, Treasury 19 Nov 2002 Minute outlining costing of indexing the personal tax scale using two particular methodologies. Contains costing projections to 2004/05. s36(1) — Page 1: Paragraph 1 under purpose; and
— Entire second page.
Page 1, except for paragraph 1 under purpose, and page 3 have been released (27/04/2004).
Yes
(c), (d), (e), (g)
B.009
4 pgsTrevor Schloss, ATO Phil Gallagher, Treasury 19 Nov 2002 Minute outlining costing of indexing the personal tax scale using two particular methodologies for the original ANTS tax scale. Contains costing projections to 2004/05 and values of parameters and hypothetical gross tax thresholds. s36(1) Whole document except:
— ANTS tax scale in the middle of page one (released 27/04/2004),
— ANTS tax scale on pages three and four (labelled current) (released (27/04/2004);
— Material above and including the subject header at top of page 1 (released 12/07/2004);
— Material above and including the Data and Assumptions / CPI Parameters (Budget Parameters) for 2001-02 on page 3 (released 12/07/2004); and
— Material above and including the Data Assumptions / AWE Parameters (Budget Parameters) for 2001-02 on page 4 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.010
4 pgsTrevor Schloss, ATO Phil Gallagher, Treasury 21 Nov 2002 Minute outlining costing of indexing the pre-ANTS personal tax scale on two particular methodologies. Contains costing projections to 2004/05 and values of parameters and hypothetical gross tax thresholds. s36(1) Whole document except:
— Marginal (pre-ANTS) tax rates scale in middle of page 1 (released 27/04/2004),
— Pre-ANTS tax scale labelled as current in the middle of pages 3 and 4 (released 27/04/2004);
— Material above and including subject header at top of page 1 (released 12/07/2004);
— Material above and including the Data and Assumptions / CPI Parameters (Budget Parameters) for 2001-02 on page 3 (released 12/07/2004); and
— Material above and including the Data and Assumptions / AWE Parameters (Budget Parameters) for 2001-02 on page 4 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.011
2 pgsTreasury and ATO Treasury 11 Oct 2002 E-mail and attached ATO minute providing projections of numbers of taxpayers entering the third tax bracket under a range of hypothetical wage growth scenarios. s36(1) Whole document except:
— Recipients and author of email (released 27/04/2004); and
— Material above and including the subject header at top of page 2 (released 12/07/2004).
Yes
(c), (d), (e), (g)
B.012
2 pgsTreasury and ATO Treasury 05 Nov 2002 E-mail and attached ATO minute providing projections of percentage of taxfilers with a marginal tax rate of 30 per cent or less. s36(1) Whole document except:
Recipients and author of email (released 27/04/2004); and
Material above and including the subject header at top of page 2 (released 12/07/2004).Yes
(c), (d), (e), (g)
B.013
3 pgsTreasury and ATO Treasury 06 Nov 2002 E-mail and attached ATO minute providing projections of numbers of taxpayers crossing tax brackets since 2000-01. s36(1) Whole document except recipients and author of email (released 27/04/2004). Yes
(c), (d), (e), (g)
B.014
10 pgsTreasury Treasurer’s Office 05 Apr 2002 E-mail and attached Executive minute to the Treasurer providing preliminary projected costings of personal income tax policy options, including advice on policy options irrelevant to this request. s36(1)
Irrelevance
(s22)Whole document except recipients and author of email on page 1 (released 27/04/2004).
The following material is irrelevant:— Page 2: third line of first dot point, rows 3-5 of the table, dash point to the third dot point and second dash point of the fourth dot point; and
— Pages 6-10.
Yes
(a), (b), (c), (d), (e), (g)
B.015
2 pgsTreasury Treasurer 10 Apr 2002 Briefing on resolution 38: indexation of income tax thresholds, including the projected costs of a policy option and advice. s36(1) First dot and dash points on the second page. The remainder of the document has been released (27/04/2004). Yes
(a), (b), (c), (d), (e)
B.016
3 pgsChristine Barron, Treasury Treasurer 09 May 2002 Draft Executive Minute providing briefing on a Herald Sun article; advice on the Budget position and the impact of bracket creep on tax revenue; projections of the percentage of taxpayers with a marginal tax rate of 30 per cent or less; information on the effects of TNTS income tax cuts. s36(1) Whole document except:
— First dot and its dash point under the bolded two word heading on Page 1 (released 27/04/2004);
— Dot points 5 and 6 under the bolded two word heading on page 1 (released 27/04/2004);
— Pages 2-3 (released 27/04/2004);
— Material on page 1 above and including the border enclosing a heading ‘Recommendation/Issue’ and one dot point (released 12/07/2004); and
— Material at bottom of page 1 from an including signature block and contact officer details, to the bottom of the page (released 12/07/2004).
Yes
(a), (b), (c), (d), (e)
B.017
4 pgsChristine Barron, Treasury Treasurer 09 May 2002 Minute and attachment providing briefing on a Herald Sun article; advice on the Budget position and the impact of bracket creep on tax revenue; projections of the percentage of taxpayers with a marginal tax rate of 30 per cent or less; information on the effects of TNTS income tax cuts. Newspaper clipping from Herald Sun. s36(1)
Irrelevance
(s22)Whole document except:
— First dot and its dash point under the bolded two word heading on page 1 (released 27/04/2004);
— Dot points 5 and 6 under the bolded two word heading on page 1 (released 27/04/2004);
— Pages 2 and 3 (released 27/04/2004);
— Page 4: article under large heading in middle of page (released 27/04/2004) - the remainder of page 4 is irrelevant;
— Material on page 1 above and including the border enclosing a heading ‘Recommendation/Issue’ and one dot point (released 12/07/2004); and
— Material at bottom of page 1 from and including signature block and contact officer details, to the bottom of the page (released 12/07/2004).
Yes
(a), (b), (d), (e), (g)
B.020
3 pgsTreasury
Draft correspondence to a newspaper in response to editorials and articles regarding income tax and bracket creep.
Irrelevance (s22)
The last paragraph on page 2 and all of page 3 are irrelevant.
Page 1, and page 2 except for the last paragraph, have been released (27/04/2004).No
Irrelevance
B.021
3 pgsTreasury Treasury 13 Nov 2002 E-mail and attached briefing on labour force participation and tax issues, including projections of percentage of taxpayers facing a marginal tax rate of 30 per cent or less. s36(1)
Irrelevance
(s22)Whole document except page 1 (the covering e-mail, released 27/04/2004).
The text at page 2 paras 1, 2 and 5 and the lines on page 3 are irrelevant.
Yes
(a), (b), (c), (d), (e)
B.022
1 pgTreasury Internal note Note on the long-term projection of tax revenue as a percentage of GDP.
The first paragraph is irrelevant to the request.s36(1)
Irrelevance
(s22)Whole document, except heading (first line) (released 27/04/2004), and irrelevant material.
The first paragraph is irrelevant.Yes
(c), (d), (e)
B.023
3 pgsTreasury Treasury 17 May 2002 Email forwarding earlier email regarding address by Senator Nick Minchin to National Farmer's Federation on taxation and other matters. Irrelevance (s22) The last paragraph on page 1 and the paragraph on page 2 are irrelevant.
Page 1, except for the last paragraph, page 2, except for the first paragraph, and page 3 have been released (27/04/2004).No
Irrelevance
B.024
1 pgTreasury Treasury Ministers 12 Feb 2002 Question Time Brief in response to CPA Australia’s recommendation that flattening the personal tax rate scale would reduce bracket creep and thereby provide more incentive to work, save and invest. Contains points about the interaction of the tax and social security systems. Discusses some effects of the new tax system. s36(1) Whole document except name and designation of author (released 24/07/2004). Yes
(a), (e), (f)
B.025
3 pgsTreasury Treasury Ministers 14 May 2002 Question Time Brief on Bracket Creep. Contains estimated numbers of taxpayers facing different Marginal tax rates to 2003/04. s36(1) Whole document except name and designation of author (released 24/07/2004). Yes
(a), (c), (e), (f)
B.026
2 pgsTreasury Treasury Ministers 19 Jun 2002 Question Time Brief on Bracket Creep in response to a Sydney Morning Herald article that argued Australia’s top marginal tax rate is too high. Contains projected percentage of taxpayers who face a 30 per cent or less marginal tax rate. Contains a costing for a hypothetical situation. Contains some information not relevant to the request. s36(1)
Irrelevance
(s22)Whole document except:
— name and designation of author (released 24/07/2004); and
— On page 2, the heading ‘Background’ and the material below that heading to the end of the page (released 12/07/2004).
The first dash point on page 2 is irrelevant.
Yes
(a), (c), (e), (f)
B.027
1 pgTreasury Treasury Ministers 19 Jun 2003 Question Time Brief (draft) on Bracket Creep. Contains projected percentage of taxpayers who face a 30 per cent or less marginal tax rate. s36(1) Whole document except name and designation of author (released 24/07/2004). Yes
(a), (d), (e), (f)
B.028
1 pgTreasury Treasury Ministers 12 Sep 2002 Question Time Brief in response to Mr Terry McCrann’s claim that middle income taxpayers are most affected by bracket creep. s36(1) Whole document except:
— name and designation of author (released 24/07/2004)) and
— On page 1, the heading ‘Background’ and the dot point below that heading (released 12/07/2004).
Yes
(a), (e), (f)
B.029
1 pgTreasury Treasury Ministers 09 Oct 2002 Question Time Brief in response to comments in Herald Sun article that the Government should provide relief to taxpayers from the impact of bracket creep. s36(1) Whole document except:
— name and designation of author (released 24/07/2004); and
— On page 1, the heading ‘Background’ and the dot point below that heading (released 12/07/2004).
Yes
(a), (d), (e), (f)
B.030
2 pgsTreasury Treasury Ministers 07 Nov 2002 Question Time Brief in response to comments from then Shadow Treasurer that the impact of bracket creep could be returned to taxpayers. s36(1) Whole document except:
— Name and designation of author (released 24/07/2004); and
— Page 2 heading and first dot point (released 24/07/2004).
Yes
(a), (d), (e), (f)
B.031
3 pgsTreasury Treasury Ministers 11 Jul 2002 Question Time Brief in response to comments in Daily Telegraph that proceeds of bracket creep could be used to fund paid maternity leave and earned income tax credits. s36(1)
Irrelevance
(s22)Whole document except:
— Name and designation of author (released 12/07/2004); and
— On page 3, the heading ‘Background’ and the first dot point below that heading only (released 12/07/2004).
The following text is irrelevant:
— Page 1 dot points 1, 2 and 3 and all of their sub-points;
— Page 2 the italicised heading and all text below it; and
— Page 3 the italicised heading and all text below it.
Yes
(a), (c), (d), (e), (f)
B.032
3 pgsTreasury Treasury Ministers 29 Nov 2002 Question Time Brief in regard to fiscal drag, and personal income tax. Contains opinions and advice to the Treasurer, and a table that compares the estimated gross tax arising from differently indexed scales out to 2003-04. s36(1) Whole document except name and designation of author (released 27/04/2004). Yes
(a), (c), (d), (e), (f)
B.033
2 pgsTreasury Treasury Ministers 03 Dec 2002 Question Time Brief in response to a Daily Telegraph article’s claim that bracket creep will add $1,500 to the average earner’s tax bill over the next 5 years. Includes a table that compares estimates for bracket creep under different indexation methods of tax thresholds out to 2004-05. s36(1) Whole document except name and designation of author (released 27/04/2004). Yes
(a), (c), (d), (e), (f), (g)
B.034
2 pgsTreasury
14 May 2002
Spreadsheet containing projected numbers and percentages of taxpayers facing different marginal tax rates to 2003/04
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.035
4 pgsTreasury
23 Oct 2002
Spreadsheet that calculates a single person’s tax liability and effective ANTS tax cut for 2000-01 to 2005-06 given different income levels. Also calculates the difference between ANTs and pre-ANTS bracket creep for 2001-02 to 2003-04 for different income levels.
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.036
4 pgsTreasury
25 Oct 2002
Spreadsheet that calculates a couple’s tax liability and effective ANTS tax cut for 2000-01 to 2005-06 given different income levels. Also calculates the difference between ANTs and pre-ANTS bracket creep for 2001-02 to 2003-04 for different income levels.
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.037
4 pgsTreasury
01 Nov 2002
Spreadsheet that calculates a single person’s tax liability and effective ANTS tax cut for 2000-01 to 2005-06 given different income levels. Also calculates the difference between ANTs and pre-ANTS bracket creep for 2001-02 to 2003-04 for different income levels.
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.038
1 pgTreasury
01 Nov 2002
Spreadsheet containing calculations of ANTS tax liability, pre-ANTS tax liability, Family Tax Benefit, Pre-ANTS family payment, ANTS and pre-ANTS disposable incomes, and average tax rates for different income levels. Contains projections for 2000-01 and 2004-05.
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.039
2 pgsTreasury
18 Nov 2002
Spreadsheet containing tax liability calculations based on different hypothetical scenarios regarding the indexation of the tax scales (by two methods) for different income levels for the years 2000-01, 2004-05, and 2005-06.
s36(1)
Whole document.
Yes
(c), (d), (e), (g)
B.040
16 pgsFreya Marsden, Treasurer’s Office Graeme Davis, Treasury 13 Feb 2002 Facsimile enclosing collection of material on bracket creep, including some points on bracket creep that have handwritten changes from the Treasurer’s Office, quotes, articles, the results of a Herald Sun Poll, unreleased figures and projections, a 1998-99 Taxation Statistics table, unpublished table of the Commonwealth tax burden, and unpublished table on State tax burden. s36(1)
Irrelevance (s22)
All text, including handwritten comments, under ‘background’ heading at page 3 of the document, i.e. page 2 of the brief.
The last 2 pages of the document, i.e. pages 15 and 16 of the document, are irrelevant to the request.
Pages 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, & 14 have been released. Page 3, except for all text, including comments, under ‘background’ heading at page three of the document, has been released.Yes
(a), (c), (d), (e), (f), (g)
The Schedule – First Home Scheme
Doc No.
and PgsAuthor Addressee Date Description Exemption claimed Parts over which exemption claimed Conclusive Certificate
Public Interest Reasons as per Conclusive certificateA.002
1 pgAnthony Hulme Treasury Ministers 10 Aug 2000 Briefing on a possible Parliamentary question regarding effect of FHOS on new housing construction s36(1) Whole document except:
— purely factual material in 2 lines after ‘Background;’ and
— footer on page 1.
(Released 12/07/2004).
Yes
(a), (b), (f)A.003
2 pgsTom Dickson Treasury officer 29 Sep 2000 Email regarding dwelling investment budget forecasts s36(1) Whole document except both email headers on page 1, including sender, recipient, date, time and subject (released 12/07/04). Yes
(b), (f)A.013
1 pgClth Attorney- General Clth Treasurer 23 Nov 2000 Letter forwarding correspondence received from industry bodies (documents A.008, A.009, and A.010) advocating certain changes to the FHOS. s43(1)(c) Whole document. A.014
1 pgClth Minister for Industry, Science and Resources Clth Treasurer 24 Nov 2000 Letter outlining correspondence from industry bodies advocating certain changes to the FHOS. s43(1)(c) Whole document. A.015
20 pgsTom Dickson Clth Treasurer 29 Nov 2000 Executive minute regarding response to industry groups on FHOS reform proposals s36(1), s43(1)(c) s36: Whole document except material at the bottom of page 1, being signature block and contact officer details (released 12/07/2004).
and/or
s43(1)(c):
Page 1:Minute title words 6-11 - words between “(FHOS)...and Senator”
Text in box: first dash point of second dot point; second line of second dash point;
Text under Key Points: first dot point and its dash point;
Second dot point, first sentence of dash point;
Fourth dot point; last four words of 5th dot point.
Page 2:
First sub-heading and its dot point.
Page 3:
First dot point under first sub-heading; first dot point under second sub-heading.
Page 4:
Recipient's address, salutation and first para.
Page 5:
Second para first sentence ending at “I understand...”; third para first sentence ending at “I note...”
Page 6:
Recipient's address, salutation and first para.
Page 8:
Para 1 line 3 last two words and line 4; para 2; para 4.
Pages 9-20 in whole.
(These are the same as documents that are no longer sought by applicant)Yes
(a), (b)A.017
1 pgClth Treasurer Clth Minister for Industry, Science and Resources 15 Dec 2000 Reply to the letter from Minister for Industry, Science and Resources (document A.014). s43(1)(c) Whole document. No A.018
2 pgsClth Treasurer John Murray, National Executive Director, Master Builders Australia 15 Dec 2000 Reply to documents A.006 and A.012 from the Treasurer, dated 15 December 2000. s43(1)(c) Whole document. No A.019
2 pgsClth Treasurer Ron Silberberg, Managing Director, Housing Industry Association 15 Dec 2000 Reply to document A.005 from the Treasurer, dated 15 December 2000. s43(1)(c) Whole document. No A.020
1 pgClth Treasurer Kevin Sheehan, President, Real Estate Institute of Australia 15 Dec 2000 Reply to document A.016 from the Treasurer, dated 15 December 2000. s43(1)(c) Whole document. No A.032
6 pgsLaurene Edsor Clth Treasurer 14 Sep 2001 Executive minute on options for phasing out new home additional grant s36(1) Whole document except:
— Material at bottom of page 1, being distribution list, to the bottom of the page; and
— Signature block on page 2
(Released 12/07/2004).
Yes
(a), (b), (e)A.033
5 pgsMartin Parkinson Clth Treasurer 27 Sep 2001 Executive minute regarding the macroeconomic implications of extending the FHOS additional grant s36(1) Whole document except footer on page 1 and signature block on page 4 (released 12/07/2004). Yes
(a), (b), (c)
3
9
0