Re Toomer and Department of Agriculture, Fisheries and Forestry

CATCHWORDS – FREEDOM OF INFORMATION

– request for access to documents – access denied – Cabinet documents – internal working documents – adequacy of the searches – decisions affirmed

Freedom of Information Act 1982 ss. 3, 4, 9, 16, 22, 24A, 32, 33, 33A, 34, 36, 41, 43, 43A, 45, 48, 55, 58, 58E and 61
Administrative Appeals Tribunal Act 1975 ss. 3 and 37
Public Service Act 1922 s. 19
Acts Interpretation Act 1901 s. 25
Evidence Act 1906 (WA) s. 56
Evidence Act 1905 (UK) s. 4
Criminal Justice Act 1989 (Qld) s. 32
Income Tax Regulations r. 38
Administrative Decisions (Judicial Review) Act 1977 s. 3
Freedom of Information Act 1982 (Vic) s. 28
Crimes Act 1914 s. 7A,
National Service Act 1951
Freedom of Information Act 1992 (Qld) s. 36
Ministers of State Act 1952

Archives Act 1983

Toomer and Department of Primary Industries and Energy (1990) 20 ALD 275
The Commonwealth v Northern Land Council (1992-1993) 176 CLR 604
Whitlam v Australian Consolidated Press (1985) 60 ACTR 7
Re Porter and Department of Community Services and Health (1988) 14 ALD 403
Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233
Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414
Holland v Jones (1917) 23 CLR 149
Re Mullen (1995) 2 Qd R 698
Sunrise Auto Ltd v Deputy Commissioner of Taxation (1995) 133 ALR 274
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112
Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Lamb v Moss (1983) 49 ALR 533
Anderson and Department of Special Minister of State No. 2 (1986) 11 ALN N239
Hudson (obo Fencray Pty Ltd) and Department of the Premier, Economic and Trade Development [1993] QICmr 4
Re Birrell and Department of the Premier and Cabinet (1986) 1 VAR 230
Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453, (2000) 171 ALR 379
National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610, (2001) 111 FCR 583
Commonwealth v Arcadia Holdings, (unreported, Supreme Court WA, Appeal Ful 12 of 1997, 16 May, 1997)
Sullivan v Hamel-Green [1970] VR 156
Leveridge v McCann [1951] NZLR 855
Department of Industrial Relations v Burchill (1991-1992) 105 ALR 327

Harris v Australian Broadcasting Corporation (1983) 50 ALR 551

Harris v Australian Broadcasting Corporation (1984) 51 ALR 581
Re Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512
Re James and Others and Australian National University (1984) 6 ALD 687
Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64
Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60
Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478
Re Kamminga and Australian National University (1992) 26 ALD 585
Re Dillon and Department of Treasury (1986) 4 AAR 320
Re Waterford and Treasurer of the Commonwealth (No. 2) (1985) 8 ALN N37
Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589
Re Burns and Australian National University (No2) (1985) 7 ALD 425

Re MacPhee and Department of Treasury (1988) 11 AAR 166

Re Bracken and Minister for Education and Youth Affairs (1985) 2 AAR 406
Re Fewster and Department of Prime Minister and Cabinet (1986) 7 AAR 367
Re Langer and Telstra Corporation (2002) 68 ALD 762

DECISION AND REASONS FOR DECISION [2003] AATA 1301

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )     V2001/992 and V2002/387
GENERAL ADMINISTRATIVE DIVISION     )

ReWILLIAM TOOMER
Applicant

AndDEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY
Respondent
V2001/1564 and V2002/422

ReWILLIAM TOOMER
Applicant

AndDEPARTMENT OF THE PRIME MINISTER AND CABINET
Respondent
V2002/386

ReWILLIAM TOOMER
Applicant

AndATTORNEY-GENERAL’S DEPARTMENT
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  18 December, 2003
Place:  Melbourne

Decision:The Tribunal has decided:
1.regarding Documents 1 and 2, which are the subject of application No. V2002/387, I affirm the decision under review;
2.regarding Document 3, which is the subject of applications Nos. V2001/992, V2001/387 and V2002/422, I affirm the decisions under review;
3.regarding Document 4, which is the subject of applications No. V2002/386, I affirm the decision under review;
4.regarding Document 5, which is the subject of applications Nos. V2001/992, V2001/387 and V2002/422, I affirm the decisions under review;
5.regarding Document 6, which is the subject of application No. V2002/422, I affirm the decision under review;
6.regarding Document 7, which is the subject of application No. V2002/387, I:
(1)set aside the decision under review in so far as it decided that Attachment A to Document 7 is exempt pursuant to s. 34(1)(a) of the Freedom of Information Act 1982;
(2)substitute a decision that Attachment A to Document 7 is exempt pursuant to s. 34(1)(c) of the Freedom of Information Act 1982;

and otherwise affirm the decision;
7.regarding Document 8, which is the subject of application No. V2002/386, I affirm the decision under review;
8.regarding Document 9, which is the subject of application Nos. V2001/1564 and V2002/422, I affirm the decision under review;
9.regarding Document 10, which is the subject of application No. V2002/422, I affirm the decision under review;

10.regarding Document 11, which is the subject of application No. V2002/422, I:
(1)set aside the decision under review; and
(2)substitute a decision that Document 11 is exempt pursuant to s. 34(1)(c) of the Freedom of Information Act 1982;

11.regarding Document 12 which is the subject of application No. V2002/422, I affirm the decision under review; and
12.regarding the applicant’s request to the Department of Prime Minister & Cabinet, pursuant to s. 24A of the Freedom of Information Act 1982, I affirm the decision to refuse the request in so far as it may refer to any other documents not disclosed to the applicant.
S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Mr William Toomer has lodged five applications seeking review of five decisions made by three different agencies in relation to requests that he has lodged under the Freedom of Information Act 1982 (“FOI Act”). Each of the decisions refused Mr Toomer access to certain documents that I will identify below. Mr Toomer’s applications together with the date of the decision and the agency that made the decision are:

Date of Application	Date of Decision	Department
3 August, 2001 V2001/992	19 June, 2001	Department of Agriculture, Fisheries and Forestry Australia (“DAFFA”)
3 December, 2001 V2001/1564	12 November, 2001	Department of Prime Minister and Cabinet (“PM&C”)
17 April, 2002 V2002/386	9 April, 2002	Attorney-General’s Department (“AG’s Department”)
17 April, 2002 V2002/387	28 March, 2002	DAFFA
22 April, 2002 V2002/422	17 April, 2002	PM&C

All matters were heard together. Mr Toomer represented himself with the assistance of Mr Potter who has held various professional engineering positions and who spent ten years as the full-time Chairman of Promotions Appeals Committees. Ms Campbell represented DAFFA and PM&C and Mr Bennett represented the AG’s Department. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) in relation to each application were admitted in evidence. They will be identified as “TAFFA992 documents”, “TPM&C1564 documents”, “TAGs386 documents”, “TAFFA387 documents” and “TPM&C422 documents”. Admitted in support of Mr Toomer’s case were a Media Release dated 18 February, 1991 and a letter from Senator Cook to Mr Toomer of the same date, Mr Toomer’s affidavit dated 15 November, 2002, a document entitled “Summary and Relevance”, a document entitled “Index of Edited documents as released to Mr Toomer” and a letter from Mr Martin Bonsey, Assistant Secretary, Parliamentary and Government Branch in PM&C to the Director, Office of Legal Aid and Family Services, AG’s Department dated 17 September, 1992. Admitted in support of the cases argued by the three agencies were affidavits of Mr Peter Hamburger (Assistant Secretary, Cabinet Secretariat, PM&C) dated 20 December, 2002, Ms Yvonne O’Neill (Manager, Legislation Review Unit, Australian Quarantine and Inspection Service in DAFFA) dated 18 December, 2002, Ms Patricia Gleeson (Senior Industry Analyst, Agricultural Economics Section, Australian Bureau of Agricultural and Resource Economics (“ABARE”) in DAFFA) dated 18 December, 2002, Mr Lester Alan Watson (Director Ministerial and Parliamentary Services Co-ordination and Support Services Branch in the AG’s Department) dated 15 January, 2003 and Mr Brendan James MacDowell (Senior Adviser in the Government Division in PM&C) dated 7 March, 2003. Also admitted was Revised FOI Memorandum No. 34 issued by the AG’s Department. Mr Toomer gave oral evidence in support of his case. Evidence in support of the respondents’ cases was given by Mr Hamburger, Mr MacDowell, Mr Watson, Ms O’Neill and Ms Gleeson.

THE ISSUES

There are two sets of issues in this case. The first set requires consideration of whether Mr Toomer may be refused access to some of the documents he has requested on the basis that they are, as applicable, exempt from disclosure under ss. 34 or 36 of the FOI Act. The second issue is whether PM&C has taken all reasonable steps to find the documents that Mr Toomer has requested and whether they either cannot be found or do not exist within the meaning of s. 24A.

BACKGROUND

Based on the evidence that has been presented in the case, I have summarised in the following paragraphs what I understand to be the background to the issues that I must consider. In so far as they reflect Mr Toomer’s views of his situation, I find that he genuinely holds those views. They are matters about which he feels deeply and about which he has been deeply hurt. This, however, is not the appropriate forum to gather evidence as to what actually occurred during Mr Toomer’s employment or to make findings of fact of what occurred and the rights and wrongs of what occurred. The decision under review concerns access to documents containing certain information and, unlike a previous application made by Mr Toomer to the Tribunal, does not concern the amendment and annotation of personal records (Toomer and Department of Primary Industries and Energy (1990) 20 ALD 275). Consequently, I have not made findings of fact regarding those matters.

On the basis of Mr Toomer’s affidavit, which was not contradicted in these matters, I find that he was employed as a Quarantine Assistant Grade 3 with the Victorian Division of the Department of Health (“DOH”). He received intensive training in quarantine and in the inspection of ships before being posted to the Port of Geelong as its first resident inspector. In that position, his main duties required him to inspect grain exporting vessels on behalf of the then Department of Primary Industries and now DAFFA. For the most part, Mr Toomer liaised with officers of the Geelong agent of Patrick Shipping and those officers always inspected the vessel if Mr Toomer decided that treatment was required. A vessel docked at the Port of Geelong after it had been partially loaded with wheat and had been issued with a Grain Loading Permit at Newcastle. On arrival at the Port of Geelong, Mr Toomer found what he regarded as an unacceptably level of insect infestation. He was accompanied by an officer of the Australian Wheat Board. As a consequence, he served a treatment order on the Captain of the vessel who angrily asked him what the Grain Loading Permit was worth. Mr Toomer understands that ship owners criticised the tough inspections at the Port of Geelong and did so in the columns of prestigious international shipping journals.

While in Geelong, Mr Toomer studied for and was awarded a Diploma of Public Health. He then held the qualifications required of a Quarantine Inspector but there was no vacancy in Victoria at the time. He continued to inspect vessels and to adhere to the standards laid down in the Grain Inspection Manual. Mr Toomer refused to take bribes and he reported attempts to give him bribes. He understood that other inspectors took bribes. When he was promoted to the position of Quarantine Inspector in Fremantle on 30 May, 1972, he was not offered any bribes in Western Australia. On 14 May, 1973, Mr Toomer was designated by DAFFA as the Senior Grain Ship Inspector for Western Australia. Various incidents occurred and criticisms were made of the manner in which Mr Toomer carried out his duties. For his part, Mr Toomer formed the view that ship inspection services at Fremantle were ineffective, staff were untrained in inspection and safety and morale was poor. Dr Mathieson was the Director in Western Australia at the time. Mr Toomer states that he was removed from ship inspection during a meeting on 30 July, 1973 and he was forbidden contact with subordinate staff.

Mr Toomer felt that he was subjected to unceasing harassment from that time. He was concerned about the policies that were adopted in Western Australia with regard to assessing rat infestation on ships and considered them contrary to departmental practice and to international practice. Mr Toomer felt under considerable pressure to resign until 1979 when he agreed to seek retirement on medical grounds.

Having regard to that part of the letter from Mr Bonsey to the Office of Legal Aid and Family Services that is dated 17 September, 1992 and that has been released in part to Mr Toomer (“the September, 1992 letter”), I find that Mr Toomer was criticised by senior officers in the Department of Health in 1973. The criticism was that he had been over zealous in carrying out his duties as a Quarantine Inspector in Fremantle. A particular criticism was directed at his estimation of rat populations on cargo vessels and another at his readiness to issue fumigation orders. In 1976, the Coombs Royal Commission into the Australian Government Administration recommended that the Public Service Board (“PSB”) consider establishing an appropriately constituted body of enquiry outside the Public Service to review Mr Toomer’s case. Dr Coombs recommended that the establishment of that body of enquiry not be left to the PSB’s discretion.

In 1977, the PSB appointed two senior public servants, Mr Perriman, who was a Division Head in the Department of Veterans’ Affairs and Mr Temme, who was a Branch Head from the Department of Defence. This was contrary to Dr Coombs’ recommendation but the PSB took the view that the enquiry should be established with Mr Perriman and Mr Temme as its delegates under the Public Service Act 1922. That enabled them to compel the production of documents and to take evidence on oath under s. 19 of that legislation. The report of Mr Perriman and Mr Temme was tabled in Parliament on 8 November, 1977 (Hansard, House of Representatives, page 3031). It criticised both the Department of Health in its treatment of Mr Toomer and of Mr Toomer for his part in continuing and exacerbating the conflict.

Mr Toomer does not regard the enquiry and report as resolving the issues and, indeed, considers it as “an expensive white wash that actually worsened … [his] situation” (Exhibit B, paragraph 97). He considers that certain Fremantle agents orchestrated a campaign against him almost as soon as he arrived in Fremantle. The evidence of certain witnesses was biased in certain aspects, Mr Toomer states, and he was not given an opportunity to address that evidence. Mr Toomer is of the view that the ship inspection service at Fremantle was ineffective and that, prior to his arrival, there had been virtually no ship fumigation for the previous six years. Staff were, in his view, untrained in inspection and safety and morale was poor. Equipment was not satisfactory. Staff, he believes, spent much of their time on duty in hotels and on beaches and were showered with gifts. He instigated the strict maintenance of inspection standards and resumption of fumigations but denies that he was overly zealous in carrying out his duties.

Mr Toomer was transferred to Victoria while his wife remained in Western Australia. He feels that he continued to be harassed and that he was wrongly blamed for causing problems for Qantas despite the Senior Quarantine Inspector’s report to the contrary. Mr Toomer’s efforts to return to Western Australia were unsuccessful and he was not permitted to have any involvement in ship inspection. Mr Toomer retired on 7 March, 1980 when he was 45 years of age. His retirement was recommended by the Department of Health. He understands that he was retired on grounds of invalidity; 60% was attributed to reasons associated with his physical health and 40% to his mental health. Mr Toomer believes that harassment continued after his retirement. His retirement was reviewed when he was examined by the Commonwealth Medical Officer. Although Mr Toomer understands that he was found fit for duty, he was refused re-employment and he has never regained it.

A summary of events following that is set out in the September, 1992 letter. I note that Mr Toomer believes that the enquiry referred to in the opening lines of the passage was instigated by the then Prime Minister, Mr Hawke after he was told by the then Minister for Health, Dr Everingham, that he had been misled by his Department. It is apparent from a letter written by Mr Hawke to Mr Dawkins on 12 October, 1984 that Mr Hawke had agreed to it after Mr Dawkins’ advice to him that he had consulted with Senator Evans, Dr Blewett and Mr Young and all had agreed to an enquiry by Mr Spigelman. Mr Hawke underlined that the enquiry should not overrun its funding levels or reporting timetable. An election intervened and Senator Walsh wrote as Minister Assisting the Prime Minister to the effect that a further enquiry could not be justified given the time that had elapsed. It could not be expected to resolve the issues satisfactorily and would involve a large number of persons (Exhibit D). That letter was dated 17 June, 1986:

“In October 1984, while Mr Dawkins was Minister Assisting the Prime Minister for Public Service Matters, the then Prime Minister agreed that a further inquiry into Mr Toomer’s case should be undertaken by Mr J J Spigelman. This inquiry was initially deferred until after the December 1984 election. Subsequently, Senator Walsh, who by that stage had become Minister Assisting the Prime Minister for Public Service Matters, decided not to proceed with the inquiry. On 12 July 1985, Senator Walsh wrote to Mr Toomer’s solicitors, informing them:
“Following further representations from Mr Toomer and others, the Government decided to re-examine the issues surrounding this matter. In doing so it has been necessary to balance Mr Toomer’s claims against the results of the previous investigations.
Taken together, these inquiries have exhaustively dealt with all of Mr Toomer’s allegations concerning his employment with the Australian Quarantine Service and his initial allegations of deficiencies in quarantine administration. Further, in his representations to this Government Mr Toomer has raised no significant issues beyond those already addressed.
Consequently, I am of the view that any further inquiry at public expense into the matters could not be justified.”

Mr Toomer’s solicitors subsequently took issue with aspects of this letter but Senator Walsh adhered to his decision that further inquiries should not be undertaken. The issue next arose towards the end of 1988.
During that year, faced with the prospect of lengthy proceedings in the Administrative Appeals Tribunal concerning Mr Toomer’s request under the FOI Act for amendment of two documents written in 1973, officials of the Department of Primary Industries and Energy (to which responsibility for animal quarantine had been passed from the Department of Health) undertook informal consultations with Mr Toomer on the possibility of the issue being settled.

In November 1988, Mr Kerin took a proposal to Cabinet. However, the Government decided that an inquiry should be undertaken by the Merit Protection and Review Agency. The Government’s initial inclination was that the Ombudsman should undertake the inquiry, but the Prime Minister, in consultation with relevant Ministers subsequently agreed that the MPRA was the more appropriate body given that employment matters are excluded from the Ombudsman’s jurisdiction and the legislation establishing the MPRA has specific provision for conducting employment-related inquiries into circumstances such as Mr Toomer’s.
On 8 December 1988, Mr Morris, the Minister Assisting the Prime Minister for Public Service Matters, formally requested the Agency to undertake this inquiry.
Over 1989 and 1990, with the exception of a period of suspension while the AAT was dealing with Mr Toomer’s FOI matter, the Agency undertook an extensive review of all the documentary evidence and took pains to ensure that Mr Toomer had plenty of opportunity to put his case.
The Agency provided its report to Senator Cook, the Minister Assisting the Prime Minister for Public Service Matters, in February 1991.
Aware of the interaction between the AAT’s consideration of events surrounding the creation of the two documents in 1973 to which Mr Toomer sought amendment, and the Agency’s inquiry, Mr Morris wrote to the Director of the Agency on 22 June 1989 requesting that the MPRA, in finalising its report, give consideration to the decision of the AAT.
The AAT, after a lengthy hearing, decided on 12 April 1990 that the two documents (minutes from Dr Mathieson, the WA Director of Health, to Mr Toomer and to the Director-General of Health in Canberra) were, in the terms of the FOI Act, “incomplete, incorrect, out of date and misleading” and should thus be amended, the crux of a very detailed analysis being that the evidence did not support Dr Mathieson’s conclusion that Mr Toomer was incompetent or overzealous and that the attack on Mr Toomer’s personality and professional reputation was not justified. Of particular significance to Mr Toomer was the AAT’s finding that Dr Mathieson’s insistence on a numerical estimation of the rat population on a ship was the criterion for ordering fumigation, rather than a more approximate estimate of the degree of infestation, was already out of date in 1973.
The Agency made a careful assessment of the AAT’s decision and of its relevance to its own inquiry, concluding that the finding of the Tribunal on Mr Toomer’s competence was not relevant to the conclusions it reached dealing with the fairness, equity and quality of the personnel management exhibited in relation to him. The Agency declined to make any finding on Mr Toomer’s competence, concluding that, irrespective of his competence, his subsequent conduct could not be justified by management’s questioning of it.
The Agency considered that Mr Toomer was not victimised and that generally he was treated fairly and equitably in the course of his employment, although it concluded that the standard of personnel management exhibited in the Department’s dealings with him had deficiencies. The Agency came to the conclusion that the actions taken and decisions made about him of which he complains were responses to his own inappropriate actions. It recommended that no compensation be paid to Mr Toomer and that further inquiries should not be initiated into his employment.
Senator Cook, the Minister Assisting the Prime Minister for Public Service Matters, accepted the conclusions of the MPRA report, and, as you will see from the attached letter from him to the Prime Minister, reported to Cabinet on the Agency’s report. Cabinet on 18 February 1991 noted that Senator Cook accepted the findings of the MPRA and his response to its recommendations as set out in his letter of 14 February. The Cabinet also agreed that the matter be considered closed.” (Exhibit E, pages 2-4)

A copy of part of the letter written by Mr Kerin on 8 November, 1988 to the Prime Minister asking for his agreement to be raised under the line at a meeting of Cabinet before 19 November, 1988 is included in the TAFFA992 documents. After summarising past events, Mr Kerin said:

“I consider that it would be very desirable to seek to resolve the issues conclusively. My officials have been holding discussions with Mr Toomer in response to his request for the Government to acknowledge past “errors” and pay compensation. Any compensation would be part of a package incorporating an undertaking that he and his family would not pursue the matter in the Courts or other fora, and would not seek any further enquiry. It would be unrealistic, however, to expect that Mr Toomer or his supporters will not continue to make public statements.” (Exhibit 1, page 25)

Mr Slatyer, who was then the Acting Assistant Secretary of the Corporate Services and Co-ordination Division, prepared a brief for Mr Kerin’s use during the discussion of the matter in Cabinet (Exhibit D). A copy of the brief, with material deleted under the FOI Act, appears in the evidence (Exhibit D).

Following Cabinet’s discussion of the matter under the line, Mr Templeton, who was then the Director of the Cabinet Office, wrote to the Prime Minister. Mr Toomer has been given access to part of that minute under the FOI Act (Exhibit D). Mr Templeton noted that Cabinet had agreed to ask the Commonwealth Ombudsman to conduct an informal enquiry but that the then Ombudsman, Professor Pearce, had been reluctant to agree because he questioned whether he had jurisdiction and because he lacked resources. An alternative was to refer it to the Merit Protection and Review Agency (“MPRA”) and Mr Templeton had suggested this to the three Ministers concerned. They had agreed and Mr Templeton recommended that the Prime Minister agree that it be referred to the MPRA and not to the Ombudsman (Exhibit D).

Senator Cook, the then Minister for Industrial Relations, wrote to the Prime Minister on 14 February, 1991 after having received the report from the MPRA. A copy of that letter from which material had been deleted has been released to Mr Toomer under the FOI Act. Senator Peter Cook, issued a media release dated 18 February, 1991, which read in part:

“Mr Toomer says he was victimised when he was employed in the Department of Health between 1968 and 1980.
He further made allegations of maladministration in the quarantine service.
His claims have been investigated by a number of previous inquiries.
The Agency concluded that
Mr Toomer was not victimised and generally he was treated fairly and equitably during his employment.
the actions taken and decisions made in relation to Mr Toomer about which he complained were largely responses to his own inappropriate actions.
the standard of the personnel management exhibited in the Department’s dealings with Mr Toomer was not high.

The report noted that personnel practices in the Public Service had changed considerably since the time of the events.
The Agency has recommended that no compensation be paid to Mr Toomer. I accept the findings. As far as the Government is concerned, the matter is now closed.” (Exhibit A)

On the same day, Senator Cook wrote to Mr Toomer advising him of his decision and of his media release (Exhibit A).

The September, 1992 letter was written in response to Mr Toomer’s application for Commonwealth financial assistance to bring proceedings in tort against the Commonwealth. Mr Bonsey concluded by saying that he was unaware of any issue that would arise from the proposed case that would make it a test case or of any special circumstances that would justify the grant of financial assistance. Given the terms of Cabinet’s decision, he considered that the grant of financial assistance would be contrary to expressed government policy.

Mr Toomer continues to carry with him grave concerns over the manner in which he was treated during his employment as a quarantine officer and the manner in which he came to leave his employment as well as the manner in which his concerns have been addressed since then. He feels that his reputation has been publicly ruined and, as a consequence, that he has never been able to gain employment.

THE REQUESTS FOR ACCESS UNDER THE FOI ACT

On 29 March, 2001, Mr Toomer made a request to DAFFA for:

“… copies of all the public service advisings upon which former Minister the Hon. John Kerin was led to his decision to recommend that I be paid compensation and there be no further enquiry?
…” (TAFFA992 documents, page 13)

On 10 November, 2001, Mr Toomer made a request to DAFFA for a:
“… copy of the following information:
(i)      All public service information that came into existence during 1988 that preceded, and was in any way relevant to Minister John Kerin’s recommendations of 8/11/88 to Prime Minister Hawke that I be compensated and there be no further inquiry.
(ii)     All public service information available to DPI&E that was in any way relevant to Cabinet’s implied rejection of Minister Kerin’s recommendations.
(iii)   Any public service documents that might help to explain, without disclosing Cabinet deliberations, why Cabinet may have rejected Minister Kerin’s recommendations.
(iv)    All communications, including notes of telephone conversations, between the Department of Primary Industries & Energy or its Minister with, the Minister for Resources or with Senator Peter Cook, that in any way referred to matters relating to myself or related to discussions between DPI&E and myself, or to inquiry by the Merit Protection & Review Agency.
(v)     Each of the eleven documents identified in Attachment 1.
I am particularly concerned to obtain any further public service misinformation that may have contributed to Cabinet’s implied rejection of Minister Kerin’s proposals. …” (TAFFA387 documents, page 3)

Mr Toomer continued in his letter by expressing his concern as to the manner in which his complaint had been dealt with. Some of the eleven documents sought by Mr Toomer were “unedited” copies of documents to which access has been refused and, in so far as PM&C, to whom it was later transferred, is concerned, the other documents would be incorporated in the more general request.

On 29 May, 2001, Mr Toomer made a further request to DAFFA and this was transferred to PM&C under s. 16 of the FOI Act. It read:

“I would be very grateful if you could now provide a copy of the Cabinet decision regarding Mr Kerin’s proposal on compensation for me.” (TPM&C1564 documents, page 5)

The previous request to DAFFA dated 10 November, 2001 was also transferred to PM&C under the same provision (TPM&C422 documents, pages 4-6) as well as to AG’s Department (TAGs386 documents, pages 3-5).

THE DOCUMENTS AND THE EXEMPTIONS CLAIMED

Having regard to all of the five decisions, there were twelve documents in issue between the parties. Although one of the documents in issue is not dated, I am satisfied that all were created in the period from October, 1988 to in or about November, 1991. Given the nature of its contents that are revealed in the table below, I am satisfied that it was created in or about November, 1988. The documents set out in the table, or parts of them, were claimed to be exempt under the FOI Act by one or more of the agencies as I have indicated. Where a conclusive certificate has been issued in relation to a document, it is marked in the table with an asterisk. The table is taken from the Consolidated Schedule of Exempt Documents prepared by the respondents.

Date, File No. & Agency in possession of document	Author	Addressee	Description	Exemption claimed
1. 27 October, 1988 3 pages V2002/387-AFFA	Tony Slatyer	The Hon. John Kerin MP	Draft (unsigned) internal minute of Department of Primary Industries and Energy headed “WF Toomer-Possible Compensation”	34(1)(d)
2. 27 October, 1988 4 pages V2002/387-AFFA	Tony Slatyer	The Hon. John Kerin MP	Signed internal Department of Primary Industries and Energy Minute headed “WF Toomer-Possible Compensation” with cover sheet	34(1)(d)
*3. 2 November, 1988 1 page V2001/992-AFFA V2002/387-AFFA V2002/422-PM&C	Tony Slatyer	The Hon. John Kerin MP	Internal Department of Primary Industries and Energy Minute headed “WF Toomer-Possible Compensation”	34(1)(d) 36
4. 2 November, 1988 5 pages V2002/386-AG’s Department	Possibly Karen Fryar	-	Notes of inter-departmental meeting concerning possible payment of compensation to Mr Toomer	36

*5. 8 November, 1988 3 pages V2001/992-AFFA V2002/387-AFFA V2002/422 -PM&C	The Hon. John Kerin MP	Prime Minister	Letter seeking to raise a matter under the line in Cabinet	34(1)(a)
6. 10 November, 1988 1 page V2002/422-PM&C	Martin Bonsey	Prime Minister	Brief prepared for use in Cabinet in relation to the Hon. John Kerin’s under the line submission (document 5)	34(1)(d) 36
7. 14 November, 1988 21 pages V2002/387-AFFA	Tony Slatyer	The Hon. John Kerin MP	Brief prepared for use in Cabinet in relation to the Minister’s under the line submission (documents 5) with attachments. Attachment A is a copy of document 5)	34(1)(a) 36
8. undated 2 pages V2002/386-AG’s Department	P.F. McDonald	Attorney-General	Brief prepared for use in Cabinet in relation to the Hon. John Kerin’s under the line submission	34(1)(d) 36 34(1)(c)
*9. 15 November, 1988 1 page V2001/1564-PM&C V2002/422-PM&C	Cabinet Office (now Cabinet Secretariat)	-	Cabinet Minute dated 15 November, 1988	34(1)(b)
10. 18 November, 1988 1 page V2002/422-PM&C	Mr J.W. Templeton	Prime Minister	Internal PM&C minute concerning “Cabinet discussion on possible compensation for Mr WF Toomer”	34(1)(d)
11. 14 February, 1991 4 pages V2002/422-PM&C	Senator the Hon. Peter Cook	Prime Minister	Letter seeking to raise under the line in Cabinet the outcome of the Merits Protection Review Agency (“MPRA”) enquiry into Mr Toomer’s grievances together with handwritten annotation	34(1)(a)
12. undated 1 page V2002/422-PM&C	Cabinet Office (now Cabinet Secretariat)	-	Document entitled “Cabinet meeting 15 November 1988 – Matters without Submissions” being a debriefing form in which the outcome of Cabinet deliberations in relation to specified matters is documented, including the issue of possible payment of compensation to Mr Toomer	34(1)(b) 34(1)(d) 22(1)(a)(ii)

THE EVIDENCE

Notions underpinning Cabinet

In the Cabinet Handbook 2^nd Edition (“CH 2^nd”), the notion of collective responsibility is described:

“2.1   The convention of the collective responsibility of Ministers for Government decisions is central to the Cabinet system of government. Cabinet Minutes reflect collective conclusions and are binding on Cabinet Ministers as Government policy both outside the Party and within. This applies also to non-Cabinet Ministers co-opted to attend Cabinet meetings in respect of matters dealt with while they are present.
2.2     Minutes of the Ministry are binding on all Ministers, both outside the Party and within, in respect of issues handled by the Ministry.
2.3     All Ministers are expected to give their support in public debate to decisions of the Government; non-Cabinet Ministers, however, are not prevented from debating in Caucus decisions in areas apart from their portfolios. Caucus decisions are binding on all Ministers.
2.4     Subject to paragraph 1.13 above, Minutes of committees are not operative until endorsed by Cabinet; but, again, all Ministers are expected to give their support to the Government and to refrain from public comment in advance of issues being considered in Cabinet committees and in advance of their being endorsed in Cabinet and in Caucus.”

Similar practices and conventions restrained Ministers from publicly commenting upon issues being considered in committees of Cabinet and in advance of their being endorsed in Cabinet and in Caucus.

In order to assist the practical implementation of collective responsibility, except in a limited number of circumstances, all Ministers, regardless of whether they were a member of Cabinet or of a particular committee, received a copy of all Cabinet documents so that they were aware of the business coming before Cabinet and its committees. Cabinet documents included Submissions, Memoranda, Notices of Meeting, Business Lists and Programs. Ministers were told that he or she should not announce policy proposals or expenditure commitments that were not authorised by Cabinet unless, in exceptional cases, the proposal had been cleared with the Prime Minister and, if involving expenditure, the Minister for Finance. Ministers were told that they could not make public statements or comments on policy proposals that they took, or proposed to take, to Cabinet. It was said:

“… Promotion in public of a particular line may pre-empt Cabinet deliberations. Identification of individual Ministers with particular views tends to call into question the collective basis of agreed outcomes. Each portfolio Minister is responsible for direction and public presentation of policy, and other Ministers should avoid separate policy stances becoming matters of public debate.” (paragraph 2.8 CH 2^nd)

Cabinet considered policy proposals brought to it by a sponsoring Minister. That sponsoring Minister might be a member of Cabinet as each portfolio was represented by a Minister in Cabinet. If the sponsoring Minister was not a member of Cabinet, he or she might be present when Cabinet discussed the Submission. Each Minister was responsible for a Submission he or she sponsored even if the detailed development of the policy or its drafting had been done by officers.

Cabinet confidentiality was the subject of the following paragraphs of CH 2^nd:

“2.11 Collective responsibility is supported by the strict confidentiality attaching to Cabinet documents and to discussions in Cabinet room. Ministry, Cabinet and Cabinet committees are forums in which Ministers, while working towards a collective position, are able to discuss proposals and a variety of options and views with complete freedom. The openness and frankness of discussions in the Cabinet Room are protected by the strict observance of this confidentiality.
2.12 Having regard to the obligations imposed on Ministers by the conventions of collective responsibility and Cabinet confidentiality, officers should not seek from Ministers or Cabinet officers information about the views of individual Ministers or about aspects of discussion in the Cabinet Room.”

Cabinet business

Paragraph 4.1 of CH 2^nd stated that business came before Cabinet or its committees in one of four ways: formal Submissions and Memoranda, Committee Minutes for endorsement by Cabinet, appointments proposed by Ministers listed on Appointments Schedules and circulated to Ministers in the Cabinet Room and matters without Submission. The last category of cases were also referred to as “under the line matters” and were listed on the Matters Without Submission Schedules circulated to Ministers in the Cabinet Room.

In view of the demand of Cabinet meetings on Ministers’ time, CH 2^nd directed Ministers’ attention to whether or not they needed to take a matter to Cabinet at all. At the heart of any consideration of whether or not they should was whether the matter involved a major issue of policy or required collective consideration by Government. Ministers were encouraged to settle matters by the exchange of correspondence and to do so particularly if all interested Ministers were likely to be in agreement. Once the Minister responsible for initiating the proposal had obtained written approval from those Ministers, he or she would write to the Prime Minister advising him of that and seeking his approval to undertake the proposed course of action (CH 2^nd, paragraph 4.3). The kinds of matters that would normally go to Cabinet after being considered by the relevant committee were:

“(a) new policy proposals and proposed significant variations to existing policies;
(b)proposals likely to have a significant effect on employment in either the public or private sector;
(c)expenditure proposals, including proposals for major capitals works and computer acquisitions (normally considered only in the Budget context, that is, when draft estimates of ongoing policies and programs and new policy proposals are being considered);
(d)proposals requiring legislation, other than minor proposals which the Prime Minister has agreed need not be raised in Cabinet;
(e)proposals likely to have a considerable impact upon relations between the Commonwealth and foreign, State or local Governments;
(f)proposed responses to recommendations made in Parliamentary Committee reports, except for responses which the Prime Minister agrees raise no significant policy questions;
(g)Government negotiation of, or agreement to, international treaties, in accordance with the Department of Foreign Affairs and Trade guidelines; and
(h)requests from Parliamentary Committees for references, where the references proposed have significant policy or administrative implications.” (paragraph 4.4)

According to CH 2^nd, under the line matters were considered by Cabinet after it had considered its formal business and matters listed on the Appointments Schedules. Under the line matters were matters that did not warrant a full Submission and the only matters that could, according to CH 2^nd, be raised in this way were:

“(a) urgent matters of a procedural rather than policy nature;
(b)urgent policy matters which are sufficiently straightforward not to require a formal Cabinet Submission and which cannot be resolved in another way (for example, by an exchange of correspondence between Ministers); or
(c)appointments.” (CH 2^nd, paragraph 7.1)

A matter was raised under the line by the Minister’s writing to the Prime Minister seeking his approval to its being raised in this way. The letter set out sufficient information and background on the subject to enable Cabinet to discuss it. If it did not relate to an appointment, the letter had to indicate whether it was an urgent procedural or policy nature and state the reasons for the urgency.. The Minister had to deliver his or her letter to the Cabinet Office three clear working days before the Cabinet meeting and had to specify those Ministerial colleagues to whom he or she had sent the letter and who had an interest in the matter. If the Prime Minister agreed to the matter’s being raised under the line, the Cabinet Office sent a copy of the letter to all Cabinet Ministers. If he did not, he wrote to the Minister to that effect and sent a copy of his letter to those Ministers specified on the letter of request (CH 2^nd, paragraph 7.6).

Cabinet Office

The CH 2^nd stated that, unless their attendance was especially requested by a Minister and approved by the Prime Minister, officials, other than Cabinet officers, did not attend meetings of Cabinet (CH 2^nd, paragraph 3.18). “Cabinet officers” refers to the officers of the Office of Cabinet. The Secretary to Cabinet or his or her deputy, attended all meetings of Cabinet and of the committees and was usually accompanied by two Cabinet officials, who might be changed during lengthy meetings (CH 2^nd, paragraph 3.16). Their role, it was said, was to record the outcome of Cabinet discussions and generally to assist in the smooth running of the meetings. In performing that role, they were said to be “… privy to discussions conducted on a basis of absolute confidentiality among Ministers” (CH 2^nd, paragraph 3.21) and were directed not to make any disclosure outside the Cabinet Room of the nature or content of those discussion. A verbatim record of the meetings was not maintained and officers were directed not to make notes of deliberations (CH 2^nd, paragraph 3.21) but the Cabinet officers kept sufficient notes to enable them to prepare documents known as Minutes. Those notes were kept in Cabinet notebooks and excluded from the definition of “Commonwealth record” in the Archives Act 1983 (“Archives Act”) (CH 2^nd, paragraphs 3.16-3.17).

Chapter 8 of CH 2^nd was concerned with Cabinet Minutes. It was said:

“Outcomes of Cabinet and Cabinet committee deliberations are recorded as Cabinet Minutes by Cabinet officers, numbered in series, and circulated to Ministers and relevant departments. …” (CH 2^nd, paragraph 8.1)

In his affidavit, Mr Hamburger referred to evidence given by Ms Anthea Tinney, then Acting Director of the Cabinet Office, to Toohey J in The Commonwealth v Northern Land Council (1992-1993) 176 CLR 604 at 624-627. Ms Tinney had said that practices for notetakers had been set out in a publication entitled “Guide for Cabinet Notetakers”.. It had been issued in September, 1989 but Ms Tinney said that the practices it set out had been in place to her knowledge since 1975. A similar publication dated August, 1987 had also been issued.

Mr Hamburger said that he attends all meetings of Cabinet and several of its committees as one of the two PM&C officers responsible for taking handwritten notes of Cabinet discussions. He records them in Cabinet notebooks but he does not record them verbatim. He limits his notes to those that enable him to prepare Cabinet Minutes recording Cabinet’s decisions. Having read the evidence given by Ms Tinney, advice he had received from long serving officers of PM&C and his experience when acting as head of the Cabinet Secretariat, Mr Hamburger considered that the practice had not changed since 1975. The evidence that had been given by Ms Tinney continued to reflect the system of Cabinet Notebooks that continues to operate to this day. Toohey J summarised her evidence:

“3.     Meetings of Cabinet are attended by three Cabinet notetakers. These notetakers are officers of the Department of the Prime Minister and Cabinet, the senior of the three notetakers, the No 1 notetaker, normally being the Secretary of the Department who is also the Secretary to Cabinet. Apart from Cabinet Ministers themselves, the three Cabinet notetakers are the only persons who routinely attend throughout the course of Cabinet meetings. The Director of the Cabinet Office often attends meetings of the Cabinet in the No. 2 or No. 3 notetaker position. A similar system of attendance by Cabinet notetakers is followed in relation to meetings of Cabinet Committees although in the case of such committees the senior notetaker or the Committee Secretary is usually either a Deputy Secretary of the Department or the Director of the Cabinet Office.
4.     The three notetakers concurrently make notes of the meeting in their Cabinet Notebooks (to which I make further reference below) for the sole purpose of enabling them to write Cabinet Minutes at the end of the meeting which record the outcomes of matters considered at the meeting. The respective roles of the three notetakers are described in paragraphs 2, 3, 4 and 5 of the document entitled “Guide for Cabinet Notetakers” issued by the Cabinet Office ... Although that document was only issued in September 1989, to my knowledge the system relating to Cabinet notetakers described therein has been in use in relation to the Cabinet since 1975. In the course of my duties in the positions which I have held in the Cabinet Office and in other Branches in the Department I have occupied the position of each of the three Cabinet notetakers.
5.     As the Guide indicates in paragraph 13, the notes taken by notetakers are intended to be an aide memoire for their use and notetakers may record the discussions in any way they wish. Notebooks, because they are kept according to individual styles, do not necessarily record information on Ministers' attendance, names of notetakers or any other officials present.. Cabinet attendance records and business lists for particular meetings record such information quite separately from the notetakers' Notebooks and therefore obviate the need for the Notebook to be a source of these details. As part of the notetaker's record, the description of the meeting, the date, place and time thereof should be recorded, the subject matters of the discussion highlighted, as well as the identity of speakers in relation to any particular matter. As paragraph 57 of the Guide indicates, the contents of Cabinet notebooks are not intended to be an authoritative record of Cabinet discussions. Cabinet Minutes are the only official record of an outcome. Since the sole purpose of the notes in the notebooks is to enable the notetakers to reach agreement as to the terms of the outcomes reached at the Cabinet Meeting, none of the notebooks, nor the three notebooks together, contain a verbatim transcript of the Cabinet discussions. Thus a note may be made of what one Minister said but no note made of what others said. Also the order of notes in a notebook does not necessarily reflect the order of discussions. The Notebooks are used by notetakers to settle any disagreements about the terms of a minute.
6.     The styles of different notetakers as to what and how much is recorded vary considerably. Some use recognized shorthand scripts and others use their own form of abbreviations. Some use longhand.
7.     Cabinet Notebooks are uniquely identified, folio numbered notebooks provided by the Cabinet Office solely for use by notetakers when they attend meetings of Cabinet or Cabinet Committees. Each Notebook is issued to an individual notetaker for his or her exclusive use. Ministers do not have access to them. Notebooks which are not in regular use are returned to the Cabinet Office for secure custody and reissued to the same notetaker only as required by that notetaker. Once a Notebook is full, a new one is issued to the notetaker as required and the full Notebook is put in secure storage where it is retained. Under this system, Notebooks will cover part or all of a number of meetings of Cabinet and Cabinet Committees and include entries relating to a variety of subjects coming before Cabinet or a Cabinet Committee.
8. Paragraphs 54, 55 and 56 of the Guide set out a number of rules relating to Cabinet Notebooks. As indicated in paragraph 56 of the Guide, unlike most Cabinet documents, which generally are available for public access 30 years after their creation, by virtue of the exclusion of Cabinet Notebooks from the definition of “Commonwealth Record” in s 3(1) of the Archives Act 1983, they never become available for public access.
...
12.    In my view disclosure of those entries [i.e entries in the notebooks] in this proceeding would harm the public interest in that disclosure would undermine the principle of collective responsibility referred to in paragraph 14 below. Disclosure would also harm the public interest for the reason that disclosure could create or contribute to ill-formed or captious public or political criticism on the basis of incomplete information on a matter of current political debate referred to in paragraph 17 below.
13.    While affairs of government are conducted for the public benefit and advancement, and the deliberations of the Parliament are conducted in public, it is established by convention and acknowledged in Commonwealth legislation that confidentiality properly attaches to the deliberations of Ministers in Cabinet. This convention is followed by all governments in Australia, both State and Federal, and in all nations with a similar system of government. The convention recognises that it is necessary that there be a forum in which full and frank discussions by Ministers can take place, uninhibited by the need to temper debate to meet sectional interest or media pressures, and in which individual opinions can be expressed freely among colleagues and without public comment or exposure. If this were not so the efficiency of the policy-making process would be significantly impaired.
14.    It is a complementary convention of Cabinet government that decisions once arrived at in the Cabinet are supported by all Ministers whatever their personal views. This principle of collective responsibility of members of Cabinet for decisions taken is a long-standing and an integral part of the Australian system of government. Whatever range of private views Ministers may put in Cabinet discussions, to ensure effective and efficient government it is necessary that there be finality of decision making and that decisions once arrived at, and announced, should be clear and supported by all Ministers. Collective responsibility of Ministers also ensures that government is properly accountable and responsible as a whole to the Parliament and through it to the people. The principles of collective responsibility and Cabinet confidentiality being principles of very long standing are described in the Cabinet Handbook.” (The Commonwealth v Northern Land Council at pages 624-627)

Cabinet Minutes were circulated to all Ministers and to departments which were specifically required to take action or had a need to know of the outcome but, CH 2^nd said, not to others. Initial circulation was likely to reflect the departments listed on the cover page of the Submission as having been consulted. If another department considered that it should have a copy, it requested it with a statement of reasons through its Minister. Agencies other than departments did not generally receive copies of Cabinet Minutes. If they were affected by a Cabinet Minute, it was for their responsible Ministers, either directly or indirectly through the Secretary of his or her Department, to inform them of what was required.

Cabinet documents

CH 2^nd specified that Cabinet documents were to be held separately from other working documents of government administration and must be destroyed when no longer in use. Subject to the provisions of the Archives Act, Cabinet documents were only available to the government that created them. Paragraph 9.1 of CH 2^nd stated that any unauthorised disclosure of Cabinet documents damaged the frankness of discussions in the Cabinet room. What CH 2^nd regarded as Cabinet documents was set out in paragraph 9.2:

“(a) Business Lists for meetings of Cabinet and Cabinet committees;
(b)Cabinet Programs and Notices of Meeting;
(c)Cabinet Submissions and Cabinet Memorandums, including copies lodged with the Cabinet Office and copies held elsewhere;
(d)Corrigendums to Submissions and Memorandums;
(e)Reports and attachments to Submissions and Memorandums (whether or not actually attached) which have been brought into existence for the purpose of being considered by Cabinet;
(f)Appointments Schedules;
(g)Legislation Proposal forms, Legislation Committee Memorandums, Parliamentary Counsel’s Memorandums, Legislation Profiles and draft bills and explanatory memorandums forming part of Legislation Committee Memorandums or proposed by a Minister for consideration by the Legislation Committee;
(h)Correspondence between Ministers and the Prime Minister which is submitted to Cabinet or proposes matters (including appointments) to be raised in Cabinet without Submission;
(i)Cabinet Minutes;
(j)Documents of the Cabinet Office other than Minutes recording the deliberations of Cabinet; and
(k)copies of, or extracts from, documents referred to in (a) to (j) above.”

Documents such as a Cabinet Submission are rarely, if ever, drafted in their final form without the preparation of drafts, briefing material and various correspondence. These documents may be generated at Ministerial or officer level in the departments or agencies of government. They may or may not reveal the nature of deliberations that have taken place in Cabinet. Such documents, CH 2^nd specified, must be classified as “Cabinet-in-Confidence”. A security classification of Cabinet-in-Confidence meant that they had to be handled in accordance with the national security classification “Confidential” set out in the Protective Security Manual.

Mr Hamburger said that document 9 is a Cabinet Minute. He had examined Cabinet records and those of PM&C and believed that neither the fact of the decision recorded in that Cabinet Minute nor the fact of the deliberation or of the debate has been officially published. Those parts of document 11 that had not already been released were exempt under s. 34(1)(a) of the FOI Act.

Locating records in PM&C

In his affirmation, Mr MacDowell said that it is PM&C’s policy that all physical documents are kept on hard-copy files and that electronic documents with ongoing value are to be printed and placed on file. Files are created by PM&C’s Records Management Unit (“RMU”) on request by an officer of PM&C but a request is not made in relation to every document that comes into the possession of the Department. Once created, a file is retained by the PM&C officer for day-to-day access. He or she may give it to another officer. When the file is no longer required by the officer or is due for sentencing and destruction, it is returned to RMU..

Mr MacDowell said that he had been informed about PM&C’s recording of files by Ms Clare Holly, Senior Adviser, Information Management, Information Services Branch, PM&C. As a result, he believed that from 1982 until 1995, details of all files were recorded in an electronic data base known as Datapoint. Since 1995 what he described as “all official PM&C files” have been recorded in a central electronic data base known as Tower Records Information Management System (CH 2^nd, paragraph) (“TRIM”). The records from Datapoint were migrated to TRIM in 1995.

TRIM does not record the actual contents of the file, Mr MacDowell said but does record:

“(a) file title;
(b)name and branch of the PM&C officer requesting the file;
(c)the current location of the file (i.e the PM&C officer who has possession of the file);
(d)date of earliest and latest papers on file;
(e)references to related files recorded in TRIM at the time the file was requested;
(f)key words to assist in subsequent searches for files by subject or type; and
(g)status of the file, including its disposition, that is, whether it is active, archived or destroyed, and where appropriate, its retention schedule, which sets out the proposed or actual disposition of the file and when that is due to occur or did occur.” (Exhibit 11, paragraph 6)

Once a file is recorded on TRIM, that record is not removed even if the actual file is destroyed.

Searches for documents in PM&C

In his affidavit, Mr MacDowell said that he had spoken with Ms Gladstones, who had conducted searches in PM&C for the documents coming within Mr Toomer’s request dated 10 November, 2001. Either she or Mr Ian Harding, who was then Head of the Division Support Unit for the Government Division of PM&C, would have asked the RMU to produce a list of files. She thought that she had asked that the files would have been produced by reference to the key word “Toomer”.. Ms Gladstones advised Mr MacDowell that she did not think that there were any general compensation files or the like. Line responsibility for legal and compensation issues was in the Government Division.

Once the list was produced by RMU, Ms Gladstones and Mr Mortimer, who was then in the Government Division, searched for two files noted on RMU’s list of files. Mr Mortimer checked the files that had been located and examined them for relevant documents. He reported that he could not locate file No. 83/0840C-03. That was on 4 January, 2002 (Exhibit 11, Attachment D). Further searches for that file were later made. It was noted in an e-mail from Ms Kirsten Pinning to Ms Holly dated 25 February, 2003 that she had searched unsuccessfully for it in the Government Division and in RMU. Ms Pinnington’s searches in the Government Division led her to ask Mr Ian Fletcher for the file as he had inherited it from Mr Ian Harding, who, by then, was no longer an officer of PM&C. Mr Fletcher was not aware of the file but searched through containers managed by Mr Phillip Weeks. Mr Harding was contacted but he did not know where the file was. TRIM shows that parts one and two of file No. 83/0840C were sentenced but that No. 83/0840C-03 was not. Ms Pinnington said that she undertook a physical search for the file in the “estrays” and that “David” had asked Archives to search for the file but its response had been that there was no part 3 to the file. Mr MacDowell said in his affirmation that file No. 83/0840C-03 has still not been located.

Mr MacDowell said that he had checked two files No. 83/0840C-A01 and 83/0840C-A02, which hold attachments that are too large to be held on file No. 83/0840C. The attachments are the Report entitled “Inquiry into the case of William Frederick Toomer” to the Public Service Board by Messrs RJ Perriman and GP Temme dated 28 October, 1977 and a Report to Parliament by WF Toomer entitled “Maladministration of the Australian Quarantine Service and related public service matters” dated February, 1983. Mr MacDowell said in his affirmation that there are no documents relevant to any part of Mr Toomer’s requests under the FOI Act. The subject matter of the files related to Mr Toomer’s dispute with the Department of Health and subsequently with the Department of Primary Industries and Energy (“DPIE”) as the department responsible for the Quarantine Act 1908. No documents dated later than May, 1986 were found on the files. In view of that, Mr MacDowell considered that it was unlikely that the missing file would contain relevant documents.

Mr MacDowell said that Mr Toomer’s request would also have been passed to the Cabinet Secretariat to identify all Cabinet files that were relevant to the request. A substantive Cabinet file No. CA3302 dealing with substantive matters considered by Cabinet was located. Originally, administrative files and records held in Cabinet Office were not considered. In January, 2003 a search of those additional files was undertaken and Document 12 and a further document were located.

Mr MacDowell concluded by saying that he did not believe that any further searches for documents were warranted and that PM&C did not hold documents relating to Mr Toomer’s requests other than those it had released to him or for which it had claimed exemption. With the exception of files opened in 2001 or at some later time in relation to processing Mr Toomer’s request, all files were created in 1992 or at some earlier time. He regarded it as extremely unlikely that documents relevant to the matters would be found anywhere other than on the files that had been searched. He did not believe that further searches for file No. 83/0840C-03 were warranted.

Provision of briefing material to Minister for Primary Industries and Energy regarding Cabinet submissions

Ms Gleeson said in an affidavit that, from November, 1985 until November, 1990, she worked on the personal staff of the Honourable John Kerin, who was then the Minister for Primary Industries and Energy (“DPIE Minister”). She was employed first as his personal secretary but became his Cabinet Officer from October, 1986 to July, 1987. When she became his Personal Secretary from July, 1987 to November, 1989, one of her duties was to supervise her successor as Cabinet Officer, Ms Leanne Coleman. When she became his Cabinet Officer, her duties included coordinating Cabinet and Caucus liaison, coordinating Cabinet, legislation and Caucus briefing and stenographic duties for the DPIE Minister and his staff.

Ms Gleeson said in her affidavit:

“5. It was common practice for the Minister to take all briefing prepared for Cabinet matters into Cabinet meetings. The Cabinet Officer’s task for each Cabinet meeting was to place all relevant documents relating to the Cabinet meeting into a two-ring binder for the Minister. This binder would contain the agenda for the meeting, Cabinet submissions being considered at the meeting and all departmental briefing relating to Cabinet submissions being considered at the meeting. If a briefing was provided to the Minister relating to an under-the-line issue, this briefing would also be included in the Minister’s Cabinet folder and treated as a cabinet-in-confidence documents.
6.I am informed by Ms Jill Clark, FOI Co-ordinator with the Department of Agriculture, Fisheries and Forestry Australia and believe that document 7 in the schedule of documents filed by the Respondent in this matter is a Department of Primary Industries and Energy briefing for the Minister for a Cabinet discussion concerning the possible payment of compensation to the applicant which took place in November 1988. I have no reason to believe that in this instance the Minister would not have followed his usual practice in respect of Departmental briefings prepared for discussion of matters in Cabinet, which would have been to take document 7 into the Cabinet meeting at which the subject of the briefing was to be discussed.” (Exhibit 9)

Provision of briefing material to Attorney-General regarding Cabinet submissions

Mr Watson holds the position of Director, Ministerial and Parliamentary Services, Co-ordination and Support Services Branch in AG’s Department. As such, he heads the Ministerial and Parliamentary Services (“M&PS”) but was its Assistant Director from December, 1985. The area provides coordination and liaison services for the AG’s Department and for the offices of the Attorney-General and the Minister for Justice in relation to ministerial correspondence, ministerial submissions and briefings, parliamentary questions, legislation and Cabinet programs, tabling of documents in Parliament and general support.

Mr Watson said in his affidavit that M&PS ensures that, before each Cabinet meeting, the Attorney-General is given briefing material on the issues to be raised and discussed. That briefing material is prepared in the relevant area of the AG’s Department. It takes the form of a submission setting out the matter to be discussed, its background, any involvement by the AG’s Department and the stance that it believed that he should adopt with the reasons for that recommendation. It is Mr Watson’s understanding that the Attorney-General took with him to Cabinet meetings briefings on matters of a legal nature or otherwise of direct relevance to the portfolio. Mr Watson added:

“Taking into account the nature of the particular issue in question, I also think it highly likely that, during the course of that Cabinet meeting, the then Attorney-General would have advised the Cabinet of the strong views put to him by the Department. The fact that the submission was marked as ‘Noted’ by his Office, does not suggest any divergence from the views of the Department as presented in the briefing.” (Exhibit 10AG)

Balance of interests regarding disclosure of deliberations and processes of Cabinet

Mr Hamburger said that he agreed with the views expressed by Ms Tinney in her evidence given in The Commonwealth v Northern Land Council regarding the potential harm that would arise from disclosure of Cabinet Notebooks (see paragraph 33 above).

Mr Hamburger said that it is clear from the Cabinet records that the Prime Minister agreed to the matter of compensation’s being paid to Mr Toomer being raised under the line. He was of the view that the matter had been considered by Cabinet in this way at its meeting on 15 November, 1988.

He said that there is a public interest in the disclosure of government-held documents and in members of the public gaining access to records or documents relevant to decisions that affect them. There is, however, a stronger public interest in ensuring that the disclosure of material closely connected to the Cabinet process does not breach the confidentiality applying to the deliberations and processes of Cabinet. Confidentiality protects the Cabinet deliberations and ensures that Cabinet decision-making is uninhibited. He considered that document 5 discloses advice to the Prime Minister from PM&C and that it formed part of the active discussion in Cabinet regarding the payment of compensation to Mr Toomer. Ministers expressed differing views on that matter.

Document 6 is a brief for the use of the Prime Minister during the consideration of the Minister’s proposal in Cabinet. It deals with the substance of the proposal. Mr Hamburger said that he had communicated with Mr Bonsey and Mr Tony Levy who had previously held senior positions in the Cabinet Office and Secretariat and in ministerial offices. He had also referred to his own knowledge of Mr Howard’s present practice of taking a comprehensive set of PM&C briefing notes into Cabinet meetings and quoting from them regularly during Cabinet discussions. As a result, he believed that it was the practice of Mr Hawke and members of his Cabinet to take similar briefings into Cabinet meetings and to speak to Cabinet from them. Mr Hamburger said that document 6 is not a document by which a Cabinet decision has been officially published.

Document 7 is a briefing from the DPIE to the Minister concerning the possible payment of compensation to Mr Toomer. It has a covering minute and has three attachments. Mr Hamburger said that the document disclosed deliberations of Cabinet. He added that the co-ordination comments of Departments other than the Minister’s Departments on the proposal were an integral part of Cabinet’s thinking processes and active discussion. Some of the material gave details of the substance of the proposal that the Minister put to Cabinet. The material in the document, Mr Hamburger said, was the subject of active discussion in Cabinet and Ministers’ opinions differed. Similar considerations related to document 8, which is a briefing to the Attorney-General by the AG’s Department, Mr Hamburger said as they did to document 10, which is a briefing from Mr Templeton to the Prime Minister.

Balance of interests regarding disclosure of consultations and deliberations regarding possible payment of compensation to Mr Toomer

Mr Hamburger said that document 4 comprises notes of an Inter-Departmental meeting (“IDC”) regarding possible payment of compensation to Mr Toomer. The meeting took place shortly before the Minister raised the matter under the line in Cabinet. Mr Hamburger said that disclosure of the document would disclose consultation and deliberation that took place for the purposes of the deliberative processes involved in the functions of the Government of the Commonwealth of considering whether compensation ought to be paid to Mr Toomer. He regarded that material in document 4 as closely connected with the Cabinet process and its disclosure would disclose or tend to disclose the nature of subsequent Cabinet deliberations.

Documents 6 and 7 together with document 8 contain, Mr Hamburger said, matter in the nature of the opinion, advice and recommendation made in the course of, or for, the deliberative processes of the Commonwealth government as well as those of DAFFA and PM&C. Both are briefs that were prepared for Ministers for use during Cabinet deliberations. The confidence of Ministers, Mr Hamburger said, now and in the future in the confidentiality of their discussions in Cabinet would be diminished if details of past Cabinet deliberations were to be disclosed before the expiry of the periods in the Archives Act. Disclosure prior to that time would risk weakening adherence by current and future Ministers to the formal processes for pre-circulation of documents, briefing and record keeping of Cabinet. Disclosure would reveal detailed analysis, advice and recommendation to the Prime Minister and the Minister for their assistance in Cabinet deliberations concerning the Minister’s proposal.

CONSIDERATION

I will begin this section of my reasons with a general observation. Many of Mr Toomer’s submissions were directed to what happened in the past during his period of employment with the Australian Public Service. Although I understand and accept that Mr Toomer feels deeply wounded by his experiences and the loss of his career, it is not my place to make findings about the rights and wrongs of what occurred or the manner in which his complaints have been addressed. Mr Toomer has asked for access to certain documents and I am confined to reviewing the decisions to refuse him access to those documents. I cannot take the further step of analysing those documents to determine whether or not they responded to the questions he asked of their authors or whether they performed their duties adequately. A different approach was adopted by the Tribunal in Toomer and Department of Primary Industries and Energy but that is explained by the fact that the decision under consideration was whether or not to amend or annotate personal records relating to Mr Toomer. That necessitated an enquiry as to whether they were incomplete, incorrect, out of date or misleading within the meaning of s. 48 of the FOI Act.

THE EXEMPTIONS CLAIMED UNDER THE FREEDOM OF INFORMATION ACT 1982

The provisions under which the respondents have claimed that the documents are exempt are ss. 34 and 36.. I will set out those sections and consider the authorities relating to each as well as s. 22, which is relevant in the consideration of the deletion of exempt or irrelevant material. Before I do so, I note that the effect of s. 61(1) of the FOI Act is that the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to Mr Toomer is upon the respondents. It follows that the respondents’ have the onus of establishing that there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

SECTION 34 – Cabinet documents – the legislative framework

Section 34 provides that:

“(1) A document is an exempt document if it is:
(a)a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;
(b)an official record of the Cabinet
(c)a document that is a copy of, or a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”

It is clear from the face of s. 34(1) that a document is exempt if it falls within one of the four types of document specified in the subsection. The provision does not require any consideration to be given to whether any harm would result from disclosure and does not require the interest in disclosure to be balanced against the interest in non-disclosure. Such consideration is irrelevant to the exemption. There is, however, an exception to the exemption and the exception relates to documents, or parts of documents that contain purely factual material. Section 34(1A) provides that s. 34:

“… does not apply to a document (in this subsection referred to as a ‘relevant document’) that is referred to in paragraph (1)(a), or that is referred to in paragraph (1)(b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1)(a), to the extent that the relevant document contains purely factual material unless:
(a)the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of the Cabinet; and
(b)the fact of that deliberation or decision has not been officially published.”

The Secretary to PM&C may sign a certificate certifying that a document is one of a kind referred to in a paragraph of s. 34(1) and that it is not a document containing purely factual material that is excluded from the application of the section by s. 34(1A) (s. 34(2)(a) and (b)). If the Secretary does so, the certificate establishes conclusively that, subject to the operation of Part VI of the FOI Act, which I will set out shortly, that the document is an exempt document of the kind specified and that it is not a document containing purely factual material (s. 34(2)(c) and (d)). Where he or she is satisfied that only part of the document is an exempt document of that kind or that only part of it is not a document containing such material, the certificate must identify that part or those parts containing the matter by reason of which the certificate is given (s. 34(3)).

SECTION 34 – Cabinet documents – the authorities and principles

Although claims for exemption have been made under each of the four paragraphs of s. 34(1), I will set out the authorities relating only to ss. 34(1)(a), (b) and (d) as the language of s. 34(1)(c) appears uncontroversial. I will also consider those authorities relating to s. 34(1A) but will begin with a general comment about Cabinet. I note at the outset that, subject to the exception specified in ss. 34(1A), a document that comes within the categories specified in s. 34 is exempt regardless of whether the disclosure of the information contained in a document coming within one or more of those categories would cause any identifiable harm. In other words and having regard to s. 58(2), the Tribunal does not have any discretion to give access to such a document. The policy reason for that lies in the place that Cabinet has in the executive government of Australia. It was described by Blackburn CJ in Whitlam v Australian Consolidated Press (1985) 60 ACTR 7 in the context of a claim for public interest immunity, in which the Court could exercise its discretion, as:

“… part of the machinery of the government of the country … Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization.
…
In my opinion, in this case the public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case, principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual …” (pages 15-16)

Section 34(1)(a) - Document that has been submitted to Cabinet etc

There are two categories of documents specified in s. 34(1)(a).. Before turning to those categories, there is an initial question as to whether a document in either of those categories must be “brought into existence for the purpose submission for consideration by the Cabinet”.. Deputy President Todd said in Re Porter and Department of Community Services and Health (1988) 14 ALD 403 that, in his opinion:

“…the words ‘being a document that was brought into existence for the purpose of submission for consideration by the Cabinet’ govern only the words ‘or is proposed by a Minister to be so submitted’. …” (page 407)

The contrary view is that the clause beginning “being a document” refer back to the opening words of s. 34(1)(a) i.e. “a document” for that is the only other reference to the word “document” in the paragraph. “A document” is then described by reference to its having been “… submitted to the Cabinet for its consideration or … proposed by a Minister to be so submitted”.. In view of that, it seems to me that the qualification that the document must have been brought into existence for the purpose of submission refers to both categories into which the document may fall.

The two categories are: a document that has been submitted to the Cabinet for its consideration and a document that is proposed by a Minister to be so submitted. As the word “submit” or a form of it is fundamental both to each category and to the common characteristic, I will begin with that.

In so far as they are relevant, the ordinary meanings of “submit” are:

“… II … 6. v.t. Refer or present to another for judgement, consideration, or approval. … 7. v.t. Esp. in Law.. Put forward as a contention or proposition; urge or represent, esp. deferentially …” (The New Shorter Oxford English Dictionary, 1993)
“… v … 3. to refer to the decision or judgment of another or others. 4. to state or urge with deference …” (Macquarie Dictionary, 3rd edition, 1997)

If a document has been submitted or is proposed to be submitted, it must be for Cabinet’s consideration. There seems to be no difficulty with what is meant by “consideration” in the context of s. 34(1)(a). It means:

It follows that I am satisfied that there are reasonable grounds for the claim that Document 5 is exempt pursuant to s. 34 of the FOI Act and so that document is an exempt document.

DOCUMENT 6 – BRIEF PREPARED BY MR BONSEY FOR THE PRIME MINISTER FOR USE IN CABINET IN RELATION TO MR KERIN’S UNDER THE LINE SUBMISSION (DOCUMENT 5)

Document 6 is a brief prepared for the use of the Prime Minister in Cabinet in relation to the matters raised by Mr Kerin’s under the line submission. Exemption is claimed for the whole document apart from the sixth and seventh sentences, the fourth heading and the first five sentences under that heading (i.e. the sixteenth to the twentieth sentences in the document). The passages excluded from the decision for exemption have already been released to Mr Toomer.

Of the passages exemption is claimed, I am satisfied that none contains purely factual material. It discloses arguments that either were to be made or were likely to be made during Cabinet’s consideration of Mr Toomer’s claim for compensation. It sets out opinions on the merits of those arguments and makes recommendations in relation to them. It is addressed to the Prime Minister and clearly intended to be used by him. Mr Hamburger’s evidence regarding the practice of the present Prime Minister to take PM&C’s briefing notes to Cabinet lends considerable weight to the view that this was likely to have been the practice of one of his predecessors, Mr Hawke. I have also taken into account that Document 6 was clearly written with the intention that it would be used in Cabinet. That it was prepared for that purpose is consistent with the similar briefing note (Document 8) prepared by the AG’s Department for the Attorney-General. I find below that I am satisfied that the Attorney-General saw the briefing note and would have had regard to it during the Cabinet discussion. Taking all of these matters into account, I am satisfied that, on the balance of probabilities, the Prime Minister would have had regard to the contents of Document 6 during the Cabinet discussion.

Having formed that view, I am also satisfied that to disclose it would disclose a deliberation of Cabinet. My reasons for reaching this view are the same as those for concluding that Document 8 would make a similar disclosure. I will not repeat those reasons. For the same reasons, therefore, I find that Document 6 is exempt pursuant to s. 34(1)(d).

Exemption is also claimed pursuant to s. 36. As I have said, the document contains briefing material given to the Prime Minister. As such, it contains opinion, advice and recommendation. It does not contain purely factual material. It is a document prepared for the purpose of enabling the Prime Minister to be fully informed of the issues and to consider the issues that were likely to be raised during Cabinet’s discussion of Mr Toomer’s claim. As such, it was prepared for the deliberative processes involved in the Prime Minister’s functions and of the Government of the Commonwealth. The document comes within s. 36(1)(a).

I have also concluded that access to Document 6 would be contrary to the public interest pursuant to s. 36(1)(b) of the FOI Act and that it is exempt pursuant to s. 36. My reasons for doing so are the same as those that I have set out above in relation to Document 3.

DOCUMENT 7 – BRIEF PREPARED FOR USE IN CABINET IN RELATION TO THE MINISTER’S UNDER THE LINE SUBMISSION WITH ATTACHMENTS

Document 7 is a 21 page document. Attachment A is a copy of Document 5 and I will begin with it. The last paragraph on page 4 and the last two paragraphs on page 5 of Attachment A are claimed to be exempt for the same reasons i.e. s. 34(1)(a).. While I accept that those parts of Document 5 are exempt pursuant to s. 34(1)(a) on the basis that it is a document submitted to Cabinet and brought into existence for that purpose, Attachment A to Document 7 is not that document. It is not the document so submitted but a copy of that document. Section 34(1)(a) is quite specific in its terms and it clearly refers to the “… document that has been so submitted”. Its language is to be compared with other exemption provisions such as s. 36, which are drafted in terms of the information that would be disclosed and not, as is the case in s. 34(1)(a), in terms of a process to which a document has been subject. I do not find that Attachment A is exempt pursuant to s. 34(1)(a).

I am satisfied that Attachment A is a copy of Document 5, which was submitted to Cabinet, and so is a copy of a document referred to in s. 34(1)(a).. I am also satisfied that it contains purely factual material. At the same time and for the reasons that I gave in relation to Document 5 above, I am satisfied for the same reasons that it is material, the disclosure of which would involve the disclosure of a deliberation of Cabinet. That material is the last full sentence of the first of the two paragraphs claimed as exempt on page 3 of Attachment A and the other begins “(”at the end of the third line of that paragraph and ending“)” on the fifth line of that paragraph. For the reasons that I gave in paragraph 154 above in relation to the interaction of ss. 34(1)(a) and (1A), I am satisfied that the presence of the factual material does not alter my conclusion that the whole document is exempt pursuant to s. 34(1)(c).

Therefore, in so far as the original is exempt under that provision, Attachment A is exempt pursuant to s. 34(1)(c) and not pursuant to s. 34(1)(a). Although exemption under s 34(1)(c) was not claimed at the hearing, I do not consider that I need to ask the parties to make further submissions on the point. All made extensive submissions regarding ss. 34(1)(a) and that is one of the two substantive provisions to which s. 34(1)(c) is incidental. I note that s. 58(1) of the FOI Act provides that the Tribunal has “… power … to decide in relation to the request that … could have been or could be decided by an agency …”. As exemption could have been claimed under s. 34(1)(c), I have the power to do so. Furthermore, I consider that the whole of the document is exempt pursuant to s. 36 and that is quite apart from s. 34 and that is a matter that was fully argued.

A claim for exemption pursuant to s. 34(1)(d) is made in respect of the text under the fifth dot point and above the sixth and final dot point on page 8 (page 2, Attachment B) on the basis that it discloses a Cabinet decision. It is claimed that the document does not officially publish the decision that it discloses. I have read the document and am satisfied that it would disclose a decision that Cabinet has made in respect of a certain matter or matters. It reveals that Cabinet made a decision or decisions and the subject matter in respect of which that decision was, or those decisions were, made. The revelation is made in the context of briefing the then Minister for Primary Industries and Energy, Mr Kerin. As I said in relation to Documents 1 and 2, Mr Toomer thinks that the decision or decisions may relate to him. I am unable to reveal whether it does, or they do, so or not. Whether it does or they do not or whether or not I consider that there would be any harm flowing upon its or their release are not relevant considerations to whether it comes within s. 34(1)(d) for, as I have said, s. 34 does not give the Tribunal any discretion whether or not to release a document in so far as it discloses a decision of Cabinet.

I have considered whether the sentences contain purely factual material. Again, in one sense, they do. That is in the sense that there is the fact that the decision was or decisions were made. That the decision has been made is, however, a fact that leaves it within the scope of s. 34(1)(d) for that is the effect of s. 34(1A)(a).. In addition to the fact of a decision or decisions, there is a fact or are facts that had, in my view, to be stated if the decision or decisions and its or their relevance in the brief were to be understood at all. If that fact or facts were to be disclosed in isolation under the FOI Act, I have concluded that, given its place in the briefing material that has otherwise been disclosed to Mr Toomer, it could be married with other information available in the public arena and the decision revealed. By contrast, I am satisfied that the material is purely factual material for the purposes of s. 36(5) so that the passage would not be exempt for the purpose of s. 36.. The result is that the passage is exempt because it is exempt pursuant to s. 34(1)(d).

I do not consider that the decision has been officially published in Mr Slatyer’s briefing material to Mr Kerin. It was disclosed in the documents and it was disclosed in the course of Mr Slatyer’s carrying out his duties as an officer of the then Department of Primary Industries and Energy. I am satisfied that it was officially disclosed but I am not satisfied that it was published. It was disclosed to the Minister and, for taking a pragmatic view, the Minister’s staff, but, given its content and the circumstances in which it was written, I am satisfied that it was not intended to circulated more widely and certainly not generally or to the wider public.

A claim for exemption is also made under ss. 34(1)(d) as well as under 36 in respect of the following passages in Document 7:

“a)    All of the text under heading Views of Other Departments on page 1 and continuing over the page until the heading Recommendation on page 2
b)     Part of the heading under the heading ‘What would go with the payment?’ on page 6 (headed ‘Index of the Brief’)
c)      The text under the fifth dot point and above the sixth point and final dot point on page 8 (page 2, Attachment B)
d)     All of the contents of page 12 (other than the heading) page 6, Attachment B)
e)      Part of the heading and all of the contents of page 13 (page 7, Attachment B)
f)      All of the contents of page 15 (other than the heading) (page 9, Attachment B)
g)     Last paragraph on page 4 and Last two paragraphs on page 5 (pages 2 & 3, Attachment A)” (Consolidated Schedule of Exempt Documents)

The passages that I have previously identified in Attachment A are also claimed to be exempt pursuant to s. 36.

Having examined Document 7, I am satisfied that the passage claimed to be exempt on the first page and the first four lines of the second page of the Minute disclose the views of officers of departments briefing their Ministers for discussion of Mr Toomer’s claim in Cabinet and the briefing expected to be given to those Ministers. The remaining passage claimed to be exempt on the second page contains briefing material given to Mr Kerin by Mr Slatyer from his Department. Attachment B, which forms part of Document 7, sets out detailed briefing material. The first half of a line describing the contents of page 7 of Attachment B is claimed to be exempt on its Index page but not the second half. The second half of the line has been disclosed to Mr Toomer. Apart from that second half of a line, the page number and the header and footer, the whole of page 7 is claimed to be exempt. So too is the whole of page 6 and page 9. I am satisfied that the briefing material in these passages constitutes advice or recommendation given to Mr Kerin in the course of Mr Slatyer’s functions as an officer of the now DAFFA. It was given in the course of both Mr Slatyer’s and Mr Kerin’s thinking or deliberative processes regarding Mr Toomer’s claim for compensation. It is a document prepared for the purpose of enabling Mr Kerin to be fully informed of the issues and to consider the issues that were likely to be raised during Cabinet’s discussion of Mr Toomer’s claim. As such, it was prepared for the deliberative processes involved in the then DPIE’s functions and of the Government of the Commonwealth. These parts of Document 7 come within s. 36(1)(a).

The passages identified in Attachment A contain Mr Kerin’s recommendations to Cabinet. As such, they are the recommendations that he has formulated as part of his thinking, and so deliberative, processes involved in his function as the Minister then responsible for quarantine services and to which Mr Toomer’s complaint was associated. I am satisfied that those passages come within s. 36(1)(a).

Attachment A contains purely factual material for the purposes of s. 36(5) just as Document 5 does for the purposes of s. 34(1A).. Disclosure of that material would, however, disclose a deliberation of Cabinet but that does not protect it from disclosure pursuant to s. 36 although it does so in the context of s. 34(1)(c).. The material claimed as exempt on page 2 of Attachment B also contains purely factual material. That is not exempt from disclosure under s. 36.

None of the material for which exemption is claimed is exempt simply because it comes within s. 36(1)(a).. Its disclosure must also be contrary to the public interest within the meaning of s. 36(1)(b).. Putting aside that which is purely factual material, I am satisfied that disclosure of all of the material for which exemption is claimed would be contrary to the public interest pursuant to s. 36(1)(b).. My reasons are the same as those that I have set out in relation to Document 3. I am also satisfied that the passages are exempt pursuant to s. 34(1)(d) and again I adopt as my reasons those that I gave for reaching that conclusion in relation to Document 3.

DOCUMENT 8 – BRIEF PREPARED BY MR P.F. McDONALD FOR USE BY THE ATTORNEY-GENERAL IN CABINET IN RELATION TO MR KERIN’S UNDER THE LINE SUBMISSION

Exemption is claimed for the whole of the document other than the passage of page 1, which is an extract from paragraph 7 of document 5. I have examined the document and am satisfied that it is a brief that has been prepared for the use of the Attorney-General during a discussion in Cabinet regarding Mr Kerin’s under the line submission. Having regard to a notation on the second page of the document, I am satisfied that the document was seen by the Attorney-General. I have also taken into account Mr Watson’s evidence that it is highly likely that the Attorney-General would have taken the briefing note with him to Cabinet. Given the notation, I accept that it is at least highly likely that he did so. As I have already found that Cabinet considered the under the line submission, I am also satisfied that, on the balance of probabilities, the Attorney-General had regard to the submission for the purpose of that consideration.

I am also satisfied that the document refers to arguments or views that the AG’s Department recommended the Attorney-General put to Cabinet regarding Mr Kerin’s under the line submission. In doing so, it recites passages from Mr Kerin’s under the line submission and so discloses the matters that he wished to raise and discuss in Cabinet. On the basis of Mr Hamburger’s evidence, I am satisfied that the Cabinet discussion led to Minister’s expressing differing views. In light of that, I find, on the balance of probabilities, that it is likely that the Attorney-General expressed his views and that those views are likely to have incorporated or touched upon the opinions and recommendations incorporated in Document 8. To give access to those parts of the document expressing those opinions or recommendations is likely, therefore, to lead to the disclosure of an opinion or recommendation given during the course of a deliberation of the Cabinet. It would not lead to disclosure of the whole of Cabinet’s deliberation but it would involve part of it and so to disclosure of “any deliberation” within the meaning of s. 34(1)(d). For the same reasons, those passages that are extracts from Mr Kerin’s under the line submission are similarly exempt by reason that they would disclose a deliberation of Cabinet. Having examined the document, I am also satisfied that it does not contain any purely factual material.

Exemption is also claimed for an extract from Document 5 appearing on page 2 of Document 8. I have already found that Document 5 is exempt pursuant to s. 34(1)(a) and that it is exempt and it follows that I am satisfied that the extract in Document 8 is exempt pursuant to s. 34(1)(c).

Section 36 is the remaining exemption claimed in respect of Document 8. For the reasons given in the last paragraph but one, I am satisfied that Document 8 is a document that comes within the scope of s. 36(1)(a).. For the reasons given in relation to Document 3, I am satisfied that disclosure of the document would be contrary to the public interest.

DOCUMENT 9 – CABINET MINUTE DATED 15 NOVEMBER, 1988

The whole document is claimed to be exempt under s. 34(1)(b) and a conclusive certificate has been issued. It is a certificate issued by Mr Moore-Wilton. He described it as the Cabinet decision regarding Mr Kerin’s proposal on compensation and stated that it is a document of the kind referred to in s. 34(1)(b) as it is an official record of Cabinet. In addition, he certified that it does not contain purely factual material (TPM&C1554 documents, page 32).

I examined the document under s. 58E and have also had regard to Mr Hamburger’s evidence. In view of that, I am satisfied that the document not only appears to record Cabinet’s decision but that it is the document in which Cabinet has done so. It is the only way in which Cabinet records its decisions. As such a document, it is a document in which Cabinet has recorded its decision as part of its functions. It follows that there are reasonable grounds for the claim that the document is exempt pursuant to s. 34(1)(b).

DOCUMENT 10 – INTERNAL MINUTE FROM MR TEMPLETON TO THE PRIME MINISTER DATED 18 NOVEMBER, 1988 CONCERNING “CABINET DISCUSSION ON POSSIBLE COMPENSATION FOR MR WF TOOMER”

Two passages in Document 10 are claimed to be exempt. The first is that occurring after the word “‘informal’” in the third line of the second full paragraph and ending immediately before the word “because” in the fourth line of that paragraph. The second is found in the sixth paragraph and is the first sentence of that paragraph. It is claimed to be exempt by virtue of s. 34(1)(d). I am satisfied that both passages disclose what was said during Cabinet’s discussions of Mr Kerin’s under the line submission. That is clear from the substance of the passages themselves and in doing so discloses Cabinet’s deliberations. Although reproduced in a document prepared for the Prime Minister by Mr Templeton in the course of his duties as the Director of the Cabinet Office, I am not satisfied that it has been officially published as that term is used in s. 34(1)(d). It was revealed to the Prime Minister alone and there is no suggestion that the document was intended for any broader circulation. It cannot be said to have been published even though it was revealed officially in the course of Mr Templeton’s duties. I am satisfied, therefore, that Document 10 is exempt by virtue of s. 34(1)(d).

DOCUMENT 11 – LETTER FROM SENATOR COOK TO MINISTER ASSISTING THE PRIME MINISTER FOR PUBLIC SERVICE MATTERS TO THE PRIME MINISTER SEEKING TO RAISE UNDER THE LINE THE OUTCOME OF THE MPRA ENQUIRY

Document 11 is a four page document from Senator Cook to the Prime Minister. It sought to raise under the line in Cabinet the outcome of the MPRA enquiry into Mr Toomer’s grievances. It is a document in relation to which no conclusive certificate has been issued. This is a summary of the description given in the Respondent’s Consolidated Schedule of Exempt Documents. In view of that, one wonders why the first paragraph on page 1 has been claimed to be exempt but that comment does not detract from the merit of the claim made in relation to that passage.

Those parts of Document 11 claimed to be exempt pursuant to s. 34(1)(a) are:

“First paragraph on page 1
First sentence in paragraph 4 on page 1
Last sentence beside “comment” under recommendation (1) on page 2

Last sentence beside “comment” under recommendation (2) on page 2
All text beside “comment” under recommendation (3) on page 2
The last nine words of the second sentence and the rest of the text beside “comment” under recommendation (4) (pages 2-3) on page 3
The fourth paragraph on page 3
All of the text following the words ‘ forwarded to Mr Toomer’ in the fifth paragraph on page 3 until the salutation on page 4” (Consolidated Schedule of Exempt Documents)

On the basis of the contents of the document itself and on the evidence of Mr Hamburger, I am satisfied that Senator Cook’s submission under the line was considered by Cabinet at its meeting on 18 February, 1991. As such, I am satisfied that the original of that letter at least was a document that has been submitted to Cabinet. On the same basis, I am satisfied that it was brought into existence for that purpose. Subject only to the application of s. 34(1A) and the issue of its being a copy, I am satisfied that the original of the document was a document that would be exempt pursuant to s. 34(1)(a).

I am satisfied that the following passages reveal purely factual material within the meaning of s. 34(1A): the second passage on page 1, all passages on page 2, the first sentence of the second passage on page 3 and the first three lines on page 4. In each case, I am satisfied that to disclose the information would be to disclose matters deliberated upon by Cabinet. Again, I rely on my reasons given in relation to Document 3. This would mean that those passages are not excluded from the scope of the exemption in s. 34(1)(a).

Just as I have concluded in relation to Document 7, Attachment A, I do not consider that a copy of a document meeting the description of a document coming within s. 34(1)(a) can itself be exempt pursuant to s. 34(1)(a). It can be, and in this case is, exempt pursuant to s. 34(1)(c). Again, I do not consider that I need to refer this matter to the parties for further submissions. They have presented submissions on the substantive issues in the context of s. 34(1)(a) and s. 34(1)(c) is incidental to those substantive issues.

DOCUMENT 12 - CABINET OFFICE DOCUMENT IN RELATION TO THE OUTCOME OF CABINET DELIBERATIONS INCLUDING THE ISSUE REGARDING THE POSSIBLE PAYMENT TO COMPENSATION TO MR TOOMER

Document 12 is entitled “Cabinet meeting 15 November 1988 – Matters without Submissions”.. On the basis of the evidence of Mr Hamburger and from an examination of the document, I am satisfied that it is a document in which Cabinet Office officers record the outcome of matters raised under the line in Cabinet. It is claimed that the passage in the column headed “No” and “follow up. leg. reqd. etc.” in row A is exempt pursuant to ss. 34(1)(b) and (d). On the basis of the evidence of Mr Hamburger, I am satisfied that Document 12 is intended as a document in which the outcome of Cabinet’s deliberations are noted. It is a document that is completed by the officers in the course of their functions as officers of the Cabinet Office. Given the “Y” appearing under the word “Decision?” in that part revealed to Mr Toomer, I am satisfied that a decision was made. The passage deleted is clearly the follow up required by the decision of Cabinet. As such, it is a record of the Cabinet secretariat in the form of the Cabinet Office. On the basis of the evidence of Mr Hamburger, I am satisfied that the Cabinet Office maintains the documents relating to the work of Cabinet. It does not follow that Document 12 is an official record of the Cabinet even though I am satisfied that the Cabinet Office, be it known by that name or another such as the Cabinet Secretariat, maintains the official records of Cabinet. It may be that in another case the result might be different but, in this case, I am satisfied that it is an official record of the Cabinet Office but not an official record of the Cabinet. It is in the nature of a follow up document indicating follow up action required but I do not consider that this takes it into the category of an official record of the Cabinet itself. Document 12 is more in the mode of an aide memoir to the Cabinet Office. I am not satisfied, therefore, that Document 12 is exempt pursuant to s. 34(1)(b).

I am, however, satisfied that disclosure of the passage would disclose a deliberation of Cabinet. It would do so by disclosing a matter that had been discussed during its consideration of Mr Toomer’s claim for compensation. Whether the passage reveals the content of the discussion or the outcome of the discussion, it still reveals its deliberation or part of it. It is exempt pursuant to s. 34(1)(d).

There is a second entry in Document 12. It is the text in the first column in row B (beside “B”) and in the columns headed “No.” and “follow up. leg. reqd. etc.” in that row. Clearly reference to a matter considered by Cabinet has been identified and noted in this passage. Having regard to the context of the document itself and all evidence pertaining to the matter, I am satisfied that the deleted passage could have no relevance to Mr Toomer’s request within the meaning of s. 22(1)(a)(i).. It is possible for PM&C to delete that part of the document so that it is not an exempt document and I am satisfied that it is reasonably practicable for it to do so. Given that Mr Toomer would like to receive as much information as he can, I am also satisfied that he would wish to have access to Document 12 with the irrelevant material deleted, it is appropriate that he be given access to Document 12 with both the exempt and irrelevant passages deleted pursuant to s. 22.

HAVE THERE BEEN ADEQUATE SEARCHES?

In so far as it is relevant, s. 24A provides that:

“An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document: and
(b)the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii)does not exist.”

I considered s. 24A and the only authority that has considered it in any depth in Re Langer and Telstra Corporation (2002) 68 ALD 762:

“94. Section 24A of the Freedom of Information Act 1982 (Cth) (the FOI Act) requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the Department’s possession but cannot be found or whether they exist. The first limb has been considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail: Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138. He said (at 145):
‘(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to ‘find’, the most apt of which for present purposes is ‘to discover or attain by search or effort’. The Macquarie Dictionary similarly provides amongst the meanings given to the verb ‘to learn, attain or obtain by search or effort’. The Shorter Oxford English Dictionary provides five meanings for the word ‘reasonable’, or which the following is, in the opinion of the tribunal, most appropriately applied:
‘… 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate. ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose. late ME. (b. Of a fair, average, or considerable amount, size, etc – 1726.’

The Macquarie Dictionary provides four meanings, including ‘moderate; or moderate in price …’. The tribunal notes the requirement in s 24A that ‘all reasonable steps’ (emphasis added) are to be taken to find any requested document.” (page 145)

95. It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request.” (page 763)

Mr Toomer questioned the witnesses from PM&C closely as to whether or not they had made proper searches to locate all of the documents that relate to his request. I have summarised the essential points of their evidence earlier in these reasons. The starting point in considering his request is the request itself.

In essence, the documents that Mr Toomer requested relate to his claim for compensation. The documents, therefore, must bear some relationship to that claim. Generally, they will have been created after Mr Toomer made his claim. Conceivably, they could have been created before but, if they were, they must be related to the claim that was actually made. There might, for example, have been some indication of his wishing to make a claim and, if that were the case, it might be that a document referred to it. The request, however, would not draw in documents that related to the matters in which his claim for compensation was based i.e. matters relating to his service as a Quarantine Officer.

I have had regard to the evidence of Mr Hamburger and Mr MacDowell both in written and oral form. In addition, I have had regard to Mr Toomer’s careful analysis of the documents that he considers are missing. In considering whether reasonable searches have been made, the evidence of the searches that have been made must be assessed bearing in mind a number of matters. I set some of those matters out in the Langer decision but, in addition to the formal record keeping systems, they must also include the informal record keeping systems i.e. officers’ memories of whether documents of that type were prepared or received and, if so, the likely places in which they would have been filed or stored. When I have regard to the evidence of Mr MacDowell, I am satisfied that PM&C has searched both the formal and the informal record keeping systems in PM&C. Apart from File No. 83/0840C-03, it has checked the files that it has found recorded in its formal record keeping system and has checked with line officers who had the files or who inherited the files. Searches have been made in the areas of PM&C having responsibility for the subject matter of Mr Toomer’s request as well, in view of Mr Hamburger’s evidence, in the Cabinet Office, which is responsible for the maintenance of Cabinet’s records but is not the area having line responsibility for the subject matter. In view of the efforts that have been made by PM&C, I am satisfied that all reasonable steps have been taken to find the documents requested by Mr Toomer.

With particular regard to File No. 83/0840C-03, I am satisfied that, if it was created in paper form as opposed to nominally opened and recorded on TRIM, it cannot be found. With regard to the other documents sought by Mr Toomer, an examination of the documents that he has received shows a logical sequence of documents. That suggests that he has received all that were drafted but, if he has not, the depth of the searches that has been conducted leads me to conclude that they cannot be found. On balance, though, I am persuaded that there are no other documents that answer Mr Toomer’s request and that are in the possession of PM&C.

I note that Mr Toomer has said in Exhibit A2 to his submissions that he has not received all of the documents he requested and that were sent to the MPRA. His requests to PM&C and to DAFFA did not ask for such documents. Certainly, he expressed his deep concern as to the manner in which his claim had been handled and referred to its reference to the MPRA but he did not request documents relating to its consideration.

CONCLUSION

The practical effect of my consideration has led me to decide that the documents claimed to be exempt are exempt but, in two instances, I have decided that the document, or part of the document, is exempt under a provision of the FOI Act other than that claimed by the respondents or one of them. To reflect my decision, I have decided that:

1.regarding Documents 1 and 2, which are the subject of application No. V2002/387, I affirm the decision under review;
2.regarding Document 3, which is the subject of applications Nos. V2001/992, V2001/387 and V2002/422, I affirm the decisions under review;
3.regarding Document 4, which is the subject of applications No. V2002/386, I affirm the decision under review;
4.regarding Document 5, which is the subject of applications Nos. V2001/992, V2001/387 and V2002/422, I affirm the decisions under review;
5.regarding Document 6, which is the subject of application No. V2002/422, I affirm the decision under review;
6.regarding Document 7, which is the subject of application No. V2002/387, I:
(a)set aside the decision under review in so far as it decided that Attachment A to Document 7 is exempt pursuant to s. 34(1)(a) of the Freedom of Information Act 1982;
(b)substitute a decision that Attachment A to Document 7 is exempt pursuant to s. 34(1)(c) of the Freedom of Information Act 1982;

and otherwise affirm the decision;
7.regarding Document 8, which is the subject of application No. V2002/386, I affirm the decision under review;
8.regarding Document 9, which is the subject of application Nos. V2001/1564 and V2002/422, I affirm the decision under review;
9.regarding Document 10, which is the subject of application No. V2002/422, I affirm the decision under review;
10.regarding Document 11, which is the subject of application No. V2002/422, I:
(a)set aside the decision under review; and
(b)substitute a decision that Document 11 is exempt pursuant to s. 34(1)(c) of the Freedom of Information Act 1982;

11.regarding Document 12 which is the subject of application No. V2002/422, I affirm the decision under review; and
12.regarding the applicant’s request to the Department of Prime Minister & Cabinet, pursuant to s. 24A of the Freedom of Information Act 1982, I affirm the decision to refuse the request in so far as it may refer to any other documents not disclosed to the applicant.

I certify that the one hundred and ninety-four preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

Signed: ................................................................
P. Paczkowski Associate

Date/s of Hearing 28 and 29 January, 2003,
25 and 26 March, 2003 and
23 May, 2003

Date of Decision 18 December, 2003
For the Applicant Mr W. Toomer with assistance from Mr K. Potter

Counsel for the Department of
Agriculture, Fisheries and Forestry
and Department of the Prime Minister
Cabinet  Ms M. Campbell
Solicitor for the Department of
Agriculture, Fisheries and Forestry
and Department of the Prime Minister
Cabinet   Australian Government Solicitor
For the Attorney-General’s
Department  Mr M. Bennett

[2003] AATA 1301

18 December 2003