Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development & Sanderson - [2015] AATA 361

[2015] AATA 361

Division  GENERAL ADMINISTRATIVE DIVISION
File Number  2014/3909
Re  Secretary, Department of Prime Minister and Cabinet
APPLICANT

AndSecretary, Department of Infrastructure and Regional Development
RESPONDENT

And Brett Sanderson
PARTY JOINED

DECISION
Tribunal  Deputy President S A Forgie
Date  27 May 2015
Place  Canberra
The Tribunal has decided to:
1.set aside the decision of the Information Commissioner dated 30 June 2014; and
2.substitute a decision that:
(1)the 2006 Centre for International Economics Report on Norfolk Island is not an exempt document for the purposes of Part IV of the Freedom of Information Act 1982; and
(2)the Department of Infrastructure and Regional Development must give Mr Sanderson access to it.

…[sgd] S A Forgie…………….…
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – exemptions – whether documents exempt or conditionally exempt– standing of Secretary, Department of Prime Minister and Cabinet – whether documents were submitted to Cabinet – whether documents created for the dominant purpose of submission to Cabinet – whether document reveals Cabinet deliberations or decisions – document would disclose deliberative matter – decision set aside
CASES
Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380
Alphapharm v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71
Booker and Department of Social Security [1990] AATA 218
Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 556
Collins v Parker Unreported, SC (NSW), 11 May 1984
Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342; 74 ALJR 490
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Ellison v Vukicevic (1986) 7 NSWLR 104
Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404; 141 ALR 92; (1996) 34 ATR 183; 71 ALJR 81
Harris v Australian Broadcasting Commission (1983) 51 ALR 581
Harris v Australian Broadcasting Corporationand others (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259
Kavvadias v Commonwealth Ombudsman (No 2) (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Kelly v JRA Ltd (1990) 92 ALR 651
Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851; 45 ALD 39
McKinnon and Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23
Minister for Aboriginal Affairs v Peko-Wallsend Limited (Peko-Wallsend) [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 80 ALJR 367; 88 ALD 257
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
R v CD [1976] 1 NZLR 436
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs [1993] AATA 248; (1996) 43 ALD 139; 23 AAR 142
Re Cleary and Department of Treasury [1993] AATA 248; (1993) 31 ALD 214; 18 AAR 83
Re Control Investment and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 11 FLR 203; 2 ALD 634
Re Francis and Department of Defence [2012] AATA 838
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; 3 AAR 169
Re James and Others and Australian National University [1984] AATA 501
Re Murtagh and Commissioner of Taxation (1984) 54 ALR 313; 6 ALD 112
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645
Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588; (1984) 5 ALD 588
Re Waterford and Treasurer of the Commonwealth (No 1) (1984) 6 ALN N347
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357
Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 27 and 30
Freedom of Information Act 1982 ss 11A, 11B, 34, 47C and 93A

SECONDARY MATERIALS

Chambers 21st Century Dictionary, 1999, reprinted 2004
Department of the Prime Minister and Cabinet, Cabinet Handbook, 7^th edition, March 2012
Drafter’s Guide Preparation of Cabinet Submissions and Memoranda, 3^rd edition, March 2009
Office of the Australian Information Commissioner Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, version 1.2, March 2013
REASONS FOR DECISION

On 19 July 2011, Mr Brett Sanderson made a request to the Department of Infrastructure and Regional Development (DIRD)[1] for access to an uncensored copy of the 2006 Centre for International Economics Report on Norfolk Island (CIE Report). He made his request under the Freedom of Information Act 1982 (FOI Act). On 29 August 2011, a delegate of the Secretary of DIRD granted him access to a copy of the CIE Report from which it had deleted certain passages. It claimed that those passages were exempt under either ss 34 or 47C of the FOI Act and, therefore, that it was not obliged to give access to them. On receiving DIRD’s decision, Mr Sanderson asked the Information Commissioner (IC) to review it. The review was completed and a decision made on 30 June 2014.[2] The IC’s decision was that the body of the CIE Report was not exempt under s 47C but that the Executive Summary was exempt under s 34(1)(a). He also decided that the body of the CIE Report was conditionally exempt under s 47C but decided that giving access to it under the FOI Act would not, on balance, be contrary to the public interest. Therefore, the body of the CIE Report was not exempt under s 47C.

[1] DIRD has had various changes of name and functions: Department of Regional Australia, Regional Development and Local Government (2010-2011); Department of Regional Australia, Local Government, Arts and Sport (2011-2013); and DIRD (2013 – present).

[2] The decision was made by the FOI Commissioner but, under s 11(5)(b) of the Australian Information Commissioner Act 2010, the power to make that decision was conferred on the IC and so is taken to have been exercised by the IC.

On 28 July 2014, the Secretary to the Department of Prime Minister and Cabinet (PM&C) applied for review of that decision. Although the Secretary to DIRD is shown as the Respondent, he and the Secretary to PM&C took the same position, arguing that the whole of the CIE Report is exempt under both ss 34(1) and (3) as well as under s 47C. Mr Sanderson challenged the right of the Secretary of PM&C to lodge an application at all. I have decided that, within the meaning of s 27(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), he is a person whose interests are affected by the IC’s decision. Therefore, he was entitled to make an application under s 57A of the FOI Act.

Together, the Secretary of PM&C and the Secretary of DIRD (Commonwealth Parties) have claimed that the whole of the CIE report is exempt under either ss 34(1) and (3) as well as s 47C. I have decided that none of it is exempt and so have set aside the decision and substituted a decision that Mr Sanderson be given access to it under the FOI Act.

THE CIE Report

A copy of the CIE Report, from which the passages claimed to be exempt have been deleted, is included in the documents lodged under s 37 of the AAT Act (T documents). The findings I make about it in this section of my reasons are based on the document in that form.

The CIE Report was prepared by the Centre for International Economics (the Centre). The Centre is a private Australian consultancy established in 1986 and undertaking economic analysis. It states at the outset that it:
“… solves problems for clients by rigorously analysing markets and regulations, appraising risks and evaluating strategies. We build economic and strategic frameworks to distil complex issues to their essentials. In this way we are able to uncover new insights about emerging developments and assess payoffs from alternative strategies.”[3]
[3] T documents; T9 at 27

In 2006, the Centre was commissioned by the then Department of Transport and Regional Services (DTRS) “to undertake an assessment of the economic impacts arising from …” certain factors but the passage identifying them is among those claimed to be exempt. Representatives from the Centre visited Norfolk Island to gain an appreciation of the structure and operation of its economy through stakeholder consultations with the Norfolk Island Government and bureaucracy, the Administrator, private sector business enterprises and individuals.

Although the opening passage in Chapter 1 has been redacted, the passage that remains sets the background against which the CIE Report was prepared:
“… The rationale for moving away from the arrangements of the last 27 years – self-determination – primarily stems from numerous reviews into the future of Norfolk Island. By and large, these parliamentary and independent reviews have arrived at the same conclusion – the status quo cannot be maintained. Concerns have been raised about the level of services delivered on the Island and that the underlying economy is too small and has too narrow a base to generate sufficient funding to finance infrastructure. Of late, concerns have been raised about the financial sustainability of the government.
It should be noted that the Norfolk Island Government (NIG) and private individuals have recently commissioned reports into the financial sustainability of Norfolk Island. These reports challenge the assumptions made in the ‘Australian Government’ reports, and suggest that the Norfolk Island economy is/could be made financially sustainable. ...”[4]
[4] T documents; T9 at 32 (footnote detailing reports omitted)

The passage headed “The objective of this report” in Chapter 1 has also been redacted but it concludes by stating that:
“While not a direct focus of this report, the issue of sustainability does however enter into considerations. When assessing the economic impacts, account needs to be taken of what the economy is going to look like in the future (known as the ‘baseline’). If living standards on Norfolk Island are to be maintained (or improved) in 2007 and beyond, then the economy will clearly need to move to a sustainable footing. The issue of sustainability is addressed in a later chapter.”[5]
[5] T documents; T9 at 33

In addition to the Executive Summary, the whole of which is redacted, the report comprises eight chapters entitled “Introduction”, “Economic model of the Norfolk Island economy”, “Legislative changes”, “Other legislative changes”, “Economic impacts”, “Sensitivity analysis”, “Options for mitigating negative impacts” and “Some observations on the Norfolk Island economy”. The “Boxes, charts and tables” following Chapter 8 are not included in any copy of the CIE Report I have but are not in issue.

LEGISLATIVE FRAMEWORK

The objects of the FOI Act

The objects of the FOI Act are set out in s 3:
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”

The right of access

Section 11(1) of the FOI Act provides that:
“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.”

The person’s reasons for seeking access are irrelevant just as an agency’s or Minister’s belief as to what those reasons might be is irrelevant.[6]

[6] FOI Act; s 11(2)

The manner in which the right is framed reveals its limits. One is that the right only extends to a document, which is a document of an agency, or an official document of a Minister. A document may be a “document of an agency” in two situations. First, it is a document of an agency if it is in the possession of that agency. It matters not whether the document was created in that agency or received in it.[7] The second situation arises if, in order to comply with s 6C, the agency has taken contractual measures to ensure that it receives the document.[8]
[7] FOI Act; s 4(1)
[8] FOI Act; s 4(1) Section 6C provides that an agency must make such arrangements when a service is, or is to be, provided under a Commonwealth contract in connection with the performance of its functions or the exercise of its powers.

A second qualification of the right is that it is expressed to be “Subject to this Act”. That is an important qualification for the FOI Act goes on to prescribe matters such as the way in which a person makes a request for access to documents, the charges he or she may be asked to pay, qualifications based on workload considerations and, if access is given, the way in which access may be given.

A third limit, or qualification, to the right is that it does not extend to an “exempt document”. A document may be an “exempt document” in any one of three ways set out in the definition of that term in s 4(1). Only the first is relevant in this case. It is that the document is exempt for the purposes of Part IV of the FOI Act.

Exempt documents

Section 31B of Part IV provides:
“A document is exempt for the purposes of this Part if:
(a)it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance be contrary to the public interest for the purposes of subsection 11A(5).
…”

If a document meets either of these criteria, a person does not have a right of access to it under the FOI Act. The corollary of that is found in s 11A(4) i.e. that the agency or Minister is not required to give access to the person who has requested it. That does not mean that an agency or Minister must refuse to give access to a document that is exempt on either basis. On the contrary, an agency or Minister may choose to give access to an exempt document, whether or not in response to a request under the FOI Act, and provided doing so is not contrary to another enactment.

A. Exempt document under Division 2

Division 2 of Part IV sets out a number of exemptions which, if they apply to a document, lead to the conclusion that the document is exempt for the purposes of that Part. Among the exemptions included in Division 2 is s 34, which has been claimed by the Commonwealth Parties to apply to the Report.

B. Exempt document under Division 3

B.1 Conditional exemption

Documents that meet the criteria set out in one of the sections coming within Division 3 of Part IV of the FOI Act are conditionally exempt. Section 47C is such a section. Its inclusion means that an agency or Minister must give access to documents that meet its criteria unless “… (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.” That is the effect of s 11A(5). Section 11B sets out factors that are relevant in “… working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).”[9] I will return to those factors and the Guidelines made under s 93A and to which I must have regard under s 11A(5) at [114] and following below.
[9] FOI Act; s 11B(1)
Onus of proof
In this case, the Secretary of PM&C has applied for review. If, as I find below, he is entitled to apply for review of the IC’s decision, it follows that, under s 61(1)(a) of the FOI Act, he has the burden of establishing that the decision is not justified.

MAY THE SECRETARY OF PM&C APPLY FOR REVIEW OF THE IC’S DECISION?

The right to apply for review
A. General rule

Section 25(1) of the AAT Act provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

Section 25(1) is qualified by other provisions of s 25 providing that an enactment may specify such things as the persons whose decisions may be reviewed, the classes of decision that may be reviewed and conditions subject to which applications may be made. Those other provisions are not relevant in this case. What is relevant is s 25(4), which provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

B. Right to apply given by FOI Act

Section 57A sets out the decisions which have been made under the FOI Act and which are reviewable by the Tribunal. Only s 57A(1)(a) is relevant in the context of this case. It provides that an application may be made to the Tribunal for review of a decision of the IC under s 55K on an IC review. Under s 55K, the IC may review an IC reviewable decision. That means that the IC may review either a decision covered by s 54L(2) or a decision covered by s 54M(2) i.e. either an access refusal decision or an access grant decision.[10] An “access refusal decision” includes a decision “… refusing to give access to a document in accordance with a request”.[11] The decision made by DIRD in the first instance was a decision of this sort for it refused access to the CIE Report requested by Mr Sanderson.
[10] FOI Act; s 54K
[11] FOI Act; s 53A(a)

Note 1 to s 57A states that an application for review of a decision may be made by a person whose interests are affected by a decision. It refers then to s 27 of the AAT Act and makes no qualification of its provisions.

Who may exercise the right to apply for review?

A. The general rule

Section 27 specifies those who may apply to the Tribunal. Section 27(1) provides:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
Note: …”[12]

Sections 27(2) and (3) are concerned with applications made by an organisation or association of persons and the circumstances in which their interests are taken to be affected by a decision. The word “person” is not defined in the AAT Act. When reference is made to the Acts Interpretation Act 1901 (AI Act) and, in particular, to s 2C(1), it is apparent that “… expressions used to denote persons generally …, include a body … corporate as well as an individual.” The Secretary of PM&C is a person for the purposes of s 27(1) of the AAT Act. Whether he may apply for review of the IC’s decision is a different matter.

[12] The Note relates to decisions made under Norfolk Island enactments. Section 31 of the AAT Act provides that, subject only to an exception in the Security Appeals Division, the question whether a person’s interests are affected by a decision is a question for the Tribunal to decide.

Once an application for review of a decision has been made to it, the Tribunal’s Registrar is required to give written notice of that application “… to the person who made the decision.”[13] An application for review of a decision is among the applications and incidental proceedings and matters described as a “proceeding”.[14] Subject only to their being directed under s 42A(2)(b) of the AAT Act that they are not parties because of failure to appear at a proceeding:[15]
“… the parties to a proceeding before the Tribunal for a review of a decision are:
(a)any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)the person who made the decision;
(c)if the Attorney-General intervenes in the proceeding under section 30A – the Attorney-General; and
(d)any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
Note: …”[16]
[13] AAT Act; s 29(11)
[14] AAT Act; paragraph (a) of the definition of “proceeding”; s 3(1)
[15] AAT Act; s 42A(2)(b)
[16] AAT Act; s 30(1). The Note relates to Commonwealth and State Attorneys-General being deemed to be parties in certain circumstances.

B. Changes to the general rule made by the FOI Act

Section 25(6) of the AAT Act allows the specific enactment providing for review to change the general rules provided for under the AAT Act by permitting the exclusion or modification of its provisions. Section 60 of the FOI Act makes a change by implication. It provides that it applies for the purposes of Part VIIA of the FOI Act relating to review by the Tribunal as well as for the purposes of the application of the AAT Act to proceedings under that Part.[17] Section 60(3) provides:
“The parties to a proceeding before the Tribunal for a review of a decision are as follows:
(a)the person who applied to the Tribunal for a review of the decision under section 57A;
(b)the person who made the request or application in respect of which the decision was made;
(c)the principal officer of the agency, or the Minister, to whom the request or application was made;
(d)any other person who is made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.”
[17] FOI Act; s 60(1)

Principles relevant in determining whether a person’s interests are affected by a decision

A number of principles can be drawn from various authorities. Some were decided in the context of civil proceedings in the courts when the decision was whether an applicant for joinder was a person “aggrieved” by a decision. Some are determined by the principles developed in the context of s 30(1A) of the AAT Act when deciding whether a person may be joined as a party to a proceeding. “[A]ny other person whose interests are affected by a decision …” may be joined as a party to a proceeding that has been instigated when another person has lodged an application for review of a decision. Whatever the context in which they were developed, the principles are equally applicable in administrative proceedings for the review of decisions by a body, such as the Tribunal. The principles are:
No technical rules apply to determine when person’s interests affected
(1)“… The meaning … is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.”[18]
[18] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357; Lockhart, Beaumont and Gummow JJ at [65]; 65; 251; 370 per Lockhart J
Relevant interests determined by relevant enactment and each decision
(2)The relevant interests must be determined by reference to the terms of the particular decision and the enactment under which it has been made:[19]
[19]
(a)“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. …
… What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[20]
[20] Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [15]-[17]; 174, 384 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ
(i)“… In US Tobacco at 529, the Court said:
“The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.’
This must be so with respect to the phrase ‘interests are affected’, when used in a statute which provides for administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. …”.[21]
[21] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80
Interests affected must relate to particular decision to be reviewed
(3)Where more than one decision can be made under an enactment, interests that are relevant in relation to one decision may not be relevant in relation to another. Therefore, what amounts to relevant interests must be determined by reference to each decision and the legislative context in which it is made:
(a)“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[22]
[22] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 273, 396, 91-92 per Gummow J

Interests must be determined afresh

(4)What may amount to relevant interests must be determined afresh in relation to each applicant, whether for review or joinder, in relation to each decision under each enactment:
“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[23]
[23] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272, 395, 91 per Gummow J

The person’s interests must be more than those of a concerned member of the public
(5)The effect on a person’s rights or interests must be something more than simply the effect on that person as a member of the public:
(a)“ The question whether the Council qualified as an applicant … involves an assessment of the importance of the concern which an applicant has with respect to the particular subject matter of the decision and the closeness of the applicant’s relationship to that subject matter …”[24]
[24]
(b)“… Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
‘… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and not subject to judicial review.”

(Salemi [No. 2] [Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452], per Jacobs J.)’”[25]
[25] Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321 at 584; 346 per Mason J
(c)“ The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must be above that of a mere intermeddler or busybody. …
Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. …”[26]
[26] Right to Life [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357 at [66]; 65; 252; 370 per Lockhart J

Effect of decision on person’s interests personal to each

(6)A person’s interests are not assessed by reference to the effect of a decision on other persons but by reference to the effect on him or her:
(a)“ If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage. …”[27]
[27] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261-262; 385; 82 per Davies J

Decision-maker’s obligation to accord procedural fairness relevant

(7)“ The question of standing is, indeed, related to issues of procedural fairness. If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard. Mason CJ expressed the principle of natural justice in these terms in Kioa v West (1985) 159 CLR 550 at 584:
‘The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.
…’”[28]
[28] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80

Interest of a person with right to be heard in process leading to decision

(8)A person who has a right to be heard in the decision-making process leading to the decision under review may be regarded as a person whose interests are affected by it whether or not that person exercised that right to be heard at the earlier time.[29]
[29] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260-261; 384; 81 per Davies J

(9)Where an enactment has not expressly conferred upon a person a right to be heard during the decision-making process or on review, the enactment must be examined to determine whether that right is implicit having regard to its object or objects.
(a)This is illustrated in the case of Alphapharm, which considered a decision made under the Therapeutic Goods Act 1989:
“ The Act is dominated by public interest concerns. An object is to ensure that drugs which are imported are suitable for use in humans in Australia. Another object is to ensure that drugs which are suitable are registered or listed and become available in Australia for public use as soon as is practicable: see ss 4 and 17 of the Act. The Regulations specify times within which certain evaluations must be made and certain applications decided and a remedy in the nature of damages is provided for failure to make certain decisions within the specified time. And, as I have pointed out, the Act and the Regulations set up a structure, including the Australian Drug Evaluation Committee, for the carrying out of the necessary inquiries and for the making of skilled judgments as to the suitability or otherwise of a drug.
In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug onto the market. Such an interest is not relevant to the process which the Act establishes or to any decisions made under the Act. Such an interest is indeed in conflict with interests which the Act promotes.”[30]
[30] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261; 385; 81-82 per Davies J

Decision-maker’s lack of obligation to consult not necessarily definitive

(10)“…[I]t is appropriate briefly to return to the comments of Mason J in Kioa, particularly his reliance on the observations of Jacobs J, to which I have referred. Where, as I think is the case here, a decision which does not attract requirements of procedural fairness is administrative in nature, rather than legislative, it does not follow from those comments, in my view (given the provisions of the ADJR Act, if no other reason) that the decision is not amenable to judicial review. It is by no means inconsistent with a decision that there is no duty to hear persons in relation to a proposed decision to hold also that there are persons ‘aggrieved’ by such a decision who have standing to impugn it, under the ADJR Act, on other grounds. It is therefore necessary to turn to the other grounds on which the applicants rely.”[31]
[31] Botany Bay City Council v Minister for Transport and Regional Development [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 556; 299; 100 per Lehane J. See [128]-[129] below

No requirement that effect on interests be adverse

(11)“… It was submitted that the persons seeking to be joined in these proceedings should not be joined for their interests are not adversely affected by the decision under review. However, interests may be affected by a decision either adversely or beneficially and they may be so affected whether the decision was right or wrong. A person whose interests are affected by a decision is entitled to be joined as a party to proceedings reviewing that decision so as to put forward a view that the decision should not be set aside or changed.”[32]

[32] Control Investment [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 81; 10; Davies J, President

Is the Secretary a person whose interests are affected by the IC’s decision?

When s 34 of the FOI Act was enacted, only four years had passed since the High Court had decided Sankey v Whitlam.[33] Part of that case concerned the production of certain documents, described as “State documents” and whether they were privileged from production. A passage from the judgment of Stephen J summarises the view of all members of the Court:
“ It has generally been assumed that important State documents relating to high level policy decisions, in particular Cabinet decisions and Cabinet papers, are immune from production …. It is now recognized that in considering an objection to production on the ground of Crown privilege the court must evaluate the respective public interests and determine whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence … In determining this question the court, though it will give weight to the Minister’s opinion that the documents should not be produced, is entitled to inspect the documents and form its own conclusion upon the question whether the public interest will be better served by production or non-production.”[34]
[33] [1978] HCA 43; (1978) 142 CLR 1; Gibbs ACJ, Stephen, Mason, Jacobs and Aickin JJ
[34] [1978] HCA 43; (1978) 142 CLR 1 at 95-96

In passing s 34, Parliament clearly took the view that it did not want documents it described as “Cabinet documents” to be made available for access under the FOI Act at all. It is one thing for a court to decide in the narrow context of a particular case whether competing public interests are such that documents that could be classed as “Cabinet documents” should be required to be produced or are exempt from production on the basis of Crown privilege. After all, when documents are produced to a court under compulsion, the party obtaining the disclosure cannot, without leave of the court, use them for any purpose other than that for which they were given unless they are received into evidence.[35]
[35] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259 at [96]; 154; 632; 1276 per Hayne, Heydon and Crennan JJ

Disclosure under the FOI Act is quite a different thing. Apart from those found in the law otherwise than in the FOI Act, there are no restrictions on the use that may be made of a document. Therefore, Parliament decided that it would use s 34 to exempt a class, or classes of documents from disclosure. A document need only fall within the description of the relevant class set out in s 34. Nothing more is required. In light of the principles set out in Sankey v Whitlam, it is clear that the policy underpinning s 34 accords with the view expressed by the former Prime Minister and the former Attorney-General in the Foreword to the 7^th edition of the Cabinet Handbook (Cabinet Handbook) issued in March 2012:
“… Effective Cabinet confidentiality requires strict observance of the security requirements for Cabinet documents.”[36]
[36] Cabinet Handbook; Foreword at 6
Mr Bruce Taloni gave both oral and written evidence. He has, since December 2013, been the Assistant Secretary of the Cabinet Secretariat located in the Cabinet Division of PM&C. He previously held positions in a number of other Commonwealth agencies. In his current role, I find on the basis of his affidavit sworn on 9 January 2015, he is responsible for the work of the Cabinet Secretariat. That work is summarised in Annex A to the Cabinet Handbook issued by PM&C. In light of Mr Taloni’s evidence and of the material in the Cabinet Handbook, I find that the Cabinet Secretariat is responsible to the Prime Minister and the Cabinet Secretary for the impartial recording of Cabinet decisions and for the administration and development of Cabinet processes. It provides advice, support and administrative assistance to the Cabinet and the committees of Cabinet as well as advice to ministers, ministerial offices, departments and agencies on Cabinet matters. The Cabinet Secretariat is responsible for keeping a record of the decisions made and distributing minutes of Cabinet committees.[37]
[37] Cabinet Handbook; Annex A at [2]-[6]

On the same basis, I find that the Cabinet Secretary, to whom the Cabinet Secretariat is responsible, has responsibility for, among other matters, determining the appropriate format for Cabinet documentation.[38] Cabinet submissions and their content and format are the subject of [23]-[28] of Annex B to the Cabinet Handbook. The first two paragraphs are relevant in this context:
“23. The Cabinet submission process is the key mechanism for enabling informed decision-making in the Cabinet and therefore adherence to the process is critical to the proper exercise of the principle of collective decision-making.
24. Any documents conveying substantive material to the Cabinet, including audio-visual presentations, must be covered by a Cabinet submission and are subject to the rules and procedures of the submission process.”
[38] Cabinet Handbook; Annex A at [1(d)]

Cabinet documents are held on behalf of the Government of the day in the care and control of the Secretary of PM&C.
“18. The convention is that Cabinet documents are confidential to the government which created them and not the property of the sponsoring minister or department. Access to them by succeeding governments is not granted without the approval of the current parliamentary leader of the appropriate political party.”[39]
[39] Cabinet Handbook

It follows that I am satisfied that it is the Secretary who is responsible to Cabinet documents. That responsibility extends to their storage as well as for the manner in which they are prepared, distributed and recorded. These are matters dealt with in the Cabinet Handbook and in the Drafter’s Guide Preparation of Cabinet Submissions and Memoranda[40] (Drafter’s Guide), to which I will come in more detail shortly. In the meantime, I find that it is the Secretary of PM&C who has the responsibility for ensuring that documents that can properly be described as “Cabinet documents” are stored and handled according to strict procedures and protocols. Officers of his Department’s Cabinet Secretariat carry out those responsibilities on a day-to-day basis. He has an interest in whether access is to be given to a Cabinet document outside those practices and protocols. Giving access under the FOI Act would be outside them. Therefore, he has an interest in whether a document is a Cabinet document and his interests are affected by any decision made under s 34 as to the categorisation of a document as coming within that classes of document prescribed in that section or not. His interests are also affected by a decision that does not consider s 34 in relation to the document, or part of it, in circumstances in which the Cabinet Secretariat takes the view that it is such a document.
[40] 3^rd edition, July 2009

The decision made by the IC considered whether the Executive Summary in the CIE report was exempt under s 34 but the IC was not called upon by DIRD to consider the body of the report under s 34. The fact that the line department did not raise the exemption does not diminish the interest of the Secretary of PM&C in the outcome. For the reasons I have given, he is the gatekeeper of Cabinet documents and his interests are affected by the decision. I find that the Secretary of PM&C was entitled to make an application for review of a decision made by the IC.

CONSIDERATION: section 34 and Cabinet documents
Section 34

Sections 34(1), (2) and (3) of the FOI Act group together three categories of documents that are exempt documents under Division 2 of Part IV. Sections 34(4), (5) and (6) then refine, or qualify, the application of the first three. Taking the first three, they provide:
“(1) A document is an exempt document if:
(a)both of the following are satisfied:
(i)it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii)it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b)it is an official record of the Cabinet; or
(c)it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d)it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2)A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3)A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.”

Section 34 then goes on to set out three exceptions to these general rules:
“(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note:However, the attachment itself may be an exempt document.
(5)A document by which a decision of the Cabinet is officially published is not an exempt document.
(6)Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a)the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b)the existence of the deliberation or decision has not been officially disclosed.”
The expression “exempt matter” is defined in s 4(1) to mean:
“… the inclusion of which in a document causes the document to be an exempt document.”

The submissions

The Commonwealth Parties contend that s 34(1)(a) applies to exempt the Executive Summary on the basis that it has been submitted to Cabinet for its consideration and was brought into existence for the dominant purpose of being so submitted. As to the first limb, Mr Sibley relied on [14] of Mr Taloni’s affidavit. That is a paragraph over which I made an order under s 35 of the AAT Act so that its contents are not available to Mr Sanderson or to the public generally.

As to the second limb of s 34(1)(a), the submission made on behalf of the Commonwealth Parties, continues:
“… the Report as a whole was proposed by a Minister to be submitted to Cabinet for consideration and it was brought into existence for that purpose. In Toomer v Department of Agriculture, Fisheries, Forestry and Ors [2003] AATA 13-1 (Toomer), the Tribunal found at [67] that s 34(1)(a) exempts from disclosure a document that has been created for the purpose of being presented to Cabinet to deliberate upon, take into account or to reflect upon and that has either been presented to Cabinet for that purpose or is proposed by a Minister to be presented to Cabinet for that purpose. In this respect, the Commonwealth Parties’ [sic] submit that the Tribunal can be satisfied that the Report has been proposed to be included as part of the Minister’s Cabinet submission on Norfolk Island’s future governance arrangements … and that the request was commissioned expressly for that purpose. That the whole Report was not in fact submitted (for reasons addressed later in these submissions) is not relevant.”[41]

The deliberation has not been officially disclosed.

[41] Submissions of PM&C at [3.7]; Footnote omitted.

Mr Sanderson has submitted that the Secretary of PM&C has not met the burden of proof imposed upon him. In particular, Mr Sanderson submitted, the Secretary has not established that the Minister ever proposed to take the CIE Report to Cabinet let alone that he submitted it to Cabinet for its consideration or that Cabinet ever considered it. Furthermore, there is no evidence that the CIE Report was brought into existence for that purpose. As to disclosure of a Cabinet deliberation, Mr Sanderson submitted that it had previously been disclosed by the Hon Jim Lloyd, the then Minister for Local Government, Territories and Roads, in a Press Release dated 20 December 2006.

The evidence

Annex I to the Cabinet Handbook refers to the convention that Cabinet documents are confidential to the government creating them. They are not the property of the sponsoring Minister or of the Minister’s Department. Access to them by succeeding governments is not granted without the approval of the current parliamentary leader of the appropriate political party.[42] The document in issue in this case arose out of events during the term of the previous Coalition government from 1996 to 2007. Permission to look at the appropriate record was not requested.
[42] Cabinet Handbook; Annex I at [18]

Annex D to the Cabinet Handbook prescribes the elements making up a Cabinet submission. They are the cover sheet providing a summary of key points or “executive summary” and financial implications, recommendations, supporting analysis, coordination comments, due diligence checklist and titles of any attachments.[43] These elements are explained further:
“26.     Each of these elements has prescribed information requirements and strict limitations on length. These rules seek to ensure that the material put before the Cabinet is concise, substantiated by facts, realistic about risks and argued within the framework of the Government’s strategic policy agenda.
27.      The Cabinet template is available via CABNET and the Drafter’s Guide provides direction and assistance on how to structure the submission.
28.      If necessary, other essential supporting factual information (including New Policy Proposals, impact statements, presentations and draft information media releases) can be attached to a submission.
29.      Implementation plans must be attached to Cabinet submissions if there are significant implementation challenges associated with the proposal.
30.      Attachments form part of the main submission pack, however if the size or nature of any attachment precludes electronic distribution over CABNET, the attachments are hand delivered to ministers. These materials are Cabinet documents and must be handled accordingly (see Annex I – Cabinet documentation).”
[43] Cabinet Handbook; Annex D at [25]

Among the matters dealt with in the booklet entitled “Drafter’s Guide Preparation of Cabinet Submissions and Memoranda”[44] (Drafter’s Guide) are the template in which a submission must be drafted together with details regarding circulation of exposure drafts and relevant impact statements. Page limits are the subject of the following paragraphs:
“58. There are strict page limits on Cabinet documents. The Executive Summary is limited to one page; followed by the recommendations, which are to be focused on matters which require agreement and must be as concise as possible and an analysis of the proposal. The total page limit for the submission is 15 pages.
59. The page limit for attachments to the submission is 50 pages (excluding the one page media release and coordination comments which are to be as short as possible). Information may be attached only if it is essential to the key outcomes sought. In most cases, an executive summary of relevant reports or discussion papers is more appropriate for the Cabinet’s consideration than the full text of lengthy documents. NPPs [new policy proposal] must be included as attachments for any proposal which has financial implications. Attachments to the submissions must be presented in the current CABNET attachment template.”
[44] 3^rd edition; July 2009

In Annex J to the Cabinet Handbook, reference is also made to hardcopy attachments to Cabinet submissions:
“13.     In the event that an attachment to a submission has been prepared in a format that is incompatible with CABNET and cannot be locked down, the authoring department must provide a hardcopy of the attachment to each department preparing exposure draft comments and coordination comments. Drafters are asked to limit use of hardcopy attachments to instances when they are absolutely necessary.
14.      Hardcopy attachments are to be prepared and handled as follows:
(a)submission number and attachment reference clearly identified on the front page;
(b)all pages to be classified appropriately;
(c)the attachment should be bound and stapled, and numbered so that each copy of the attachment has a unique number; and
(d)the hardcopies are to be delivered by safe-hand delivery with a record of distribution (that is, to whom each copy number was assigned).
15.      It is the responsibility of the sponsoring department to deliver hardcopy attachments to relevant departments at the exposure draft and draft stages of the submission. At the draft stage of the submission the sponsoring department is also required to deliver 50 copies of the attachment to the Cabinet Secretariat. The Cabinet Secretariat will deliver these copies to the minister’s offices to accompany the final version of the submission.”[45]
[45] Drafter’s Handbook; Annex I

Timing is important:
“32. Deadlines for the lodgement of Cabinet documents (that is, submissions and memorandums as well as coordination comments) ensure that ministers have sufficient time to read and seek advice on papers and to discuss them with colleagues if required. The standard submission process allows five working days between distribution of the final submission by the Cabinet Secretariat and consideration by the Cabinet or a Cabinet committee (for information on circulation and lodgement deadlines see Annex D – Preparing a submission to the Cabinet). Breaching this five day rule requires the approval of the Cabinet Secretary, which will only be given where the need for earlier consideration is urgent and unavoidable.”[46]
[46] Cabinet Hanbook; Annex B at [32]

Mr Taloni said that the copy of the submission kept by PM&C includes a copy of the whole of the report even if the submission included only an executive summary of that report. He said that a copy of the whole report which is kept on the Cabinet file as a record of an item considered by Cabinet.[47]
[47] Exhibit A at [11]

As to the CIE Report, Mr Taloni said that he had inspected the records of the Cabinet Secretariat and identified the process by which it came into being. Parts of [14] and [15] of his affidavit are the subject of a confidentiality order made under s 35 of the AAT Act. Those parts are represented by the ellipses in the following passages:
“14. … at Attachment … and titled, ‘Economic Impact Assessment – Executive Summary.’ The body of the CIE Report was not attached to the Cabinet submission itself.
15.Attachment … was only an Executive Summary or extract of the complete report prepared by the CIE. In my experience, it is not unusual for hard copies of a whole document to be provided to Cabinet separately ahead of the meeting or available in the Cabinet room on the day of the meeting, where only an extract of that document is attached to the submission. I am not aware whether the body of the CIE Report was made available to members of the Cabinet in this way, although it is possible that it was given the length of the CIE Report together with the large number of other attachments to the Cabinet submission would have precluded the attachment of the CIE Report (as the CIE reports itself is longer than 50 pages).”

In his oral evidence, Mr Taloni said that a full copy of the CIE Report would have been in the Cabinet room. The typical process that is followed is constrained by systems and protocols. That means that the material circulated is kept to a page limit. Therefore, the Executive Summary was attached to the Cabinet submission but hard copies of reports were either hand delivered or made available in the Cabinet room. His practice today is both to hand deliver a copy and to have a copy in the Cabinet room. Mr Taloni could not say for a fact what happened in 2006 but, today, all papers that are circulated are gathered and put in a Cabinet file before being sent to Archives. His strong sense was that this process would have been followed. It is the usual practice and, at times, thousands of pages are involved.

Mr Paul McInnes is the General Manager of the Norfolk Island Reform Taskforce at DIRD. He is responsible for advising the Minister for Infrastructure and Regional Development (Minister) and the Secretary of DIRD regarding Norfolk Island reforms and monitor the implementation of reforms in relation to Norfolk Island. He has sworn an Affidavit.
A number of its paragraphs are subject to an order under s 35 of the AAT Act.

Mr McInnes said that he was not employed by DIRD at the time the CIE Report was prepared. In order to familiarise himself with the matter, he reviewed the relevant departmental files concerning the production of the CIE Report and its production. Mr McInnis described the documents he reviewed as “… associated documents, including internal Minutes, file notes and Briefings.” This review led him to the view that:
“9. On 6 April 2006, the Department for Local Government, Territories and Roads (the Department) commissioned an Economic Impact Assessment of Norfolk Island for the purposes of the Minister’s submission to Cabinet. The Minister consulted with the Prime Minister and the Treasurer on the Terms of Reference. Annexed to this affidavit and marked ‘PM1’ is a copy of a brief from the Department to the Minister.
10.Subsequently on 24 May 2008, the Terms of Reference for the Economic Impact Assessment developed by the Department and Treasury were agreed upon by the then Treasurer, the Hon Peter Costello MP. Annexed to this affidavit and marked ‘PM2’ is a copy of a letter from the Treasurer to the Minister.
11.In June and July 2006, I understand that the Department undertook a process to select a consultant to provide an Economic Impact Assessment ... On
25 July 2006, the Department advised the Minister that the Centre for International Economics (CIE) had been engaged to provide the Economic Impact Assessment of Norfolk Island. It advised the Minister that it did not anticipate that CIE’s Report would be made public as it would constitute analysis for Cabinet … Annexed to this affidavit and marked ‘PM3’ is a copy of a brief from the Department to the Minister.
12.On 31 July 2006, CIE was told by the Department that the Economic Impact Assessment has been commissioned for the Australian Government … therefore any findings, results and reports were not for public consumption. Annexed to this affidavit and marked ‘PM4’ is a copy of an email sent from the Department to CIE.
13.On 4 September 2006, CIE was reminded by the Department not to present or disseminate any of its findings to the Norfolk Island Government or to the public. CIE was told that the Department should be the only recipient of its findings. … Annexed to this affidavit and marked ‘PM5’ is a copy of the email sent from the Department to CIE.
14.On 6 October 2006, CIE provided the Department with the final CIE Report. A presentation of the findings was made to both the Department and Treasury on 6 October 2006.
15.…
16.In December 2006, the Executive Summary of the CIE report provided as an attachment to the Cabinet paper … it is not unusual for the Executive Summary only of a report to be attached to a Cabinet Submission because of page limit requirements, however the full reports are usually provided to Central agencies to inform the briefing process for their respective Cabinet Ministers.”[48]
[48] Exhibit B. The ellipses represent the passages that are subject to an order under s 35 of the AAT Act. The whole of Annexures PM1 and PM3 are subject to such an order. Annexures PM2, PM 4 and PM5 are partially subject to it.

Consideration: section 34(1)(a)

In considering s 34(1)(a), I have had regard to the Guidelines issued by the IC.[49] In my view, my analysis of the provision is consistent with them.
[49] Guidelines at [5.47]-[5.70] reproduced at T documents; T20 at 121-125

A.1 Scope of exemption: s 34(1)(a)(i)

Section 34 describes three classes of documents that are exempt documents. The first class, described in s 34(1), provides for four sub-classes of documents, all of which are exempt documents. The Commonwealth Parties’ submissions have focused on the class prescribed by s 34(1)(a). To come within that class, two criteria have to be met. The first, set out in s 34(1)(a)(i), is that the document has been “submitted to Cabinet for its consideration, or is, or was, proposed by a Minister to be so submitted”.[50] The words “submit” and “consideration” require examination.
[50] FOI Act; s 34(1)(a)(i)

The word “submit” has various shades of meaning. The shade relevant to this case is:
“… 3a to offer, suggest or present (eg a proposal) for formal consideration by others; b to hand in (eg an essay or other piece of written work) for marking, correction, etc □ He submitted the essay late. …”[51]

That would seem to be the meaning in which the word is used in s 34(1)(a)(i). The document must either have been presented to the Cabinet for its consideration or proposed by the Minister to be presented to it. Lodgement of a document with the Cabinet Secretariat does not equate with its submission to Cabinet. On the basis of the evidence given by Mr Taloni and the material set out in the Cabinet Handbook, I am satisfied that presenting, and so submitting, a document to the Cabinet Secretariat does not equate with its being submitted to Cabinet for its consideration. The Cabinet Secretariat is the path by which a document travels to the Cabinet and whose hurdles it must clear but it is no more than a path intended to ensure that only those documents in a state appropriate to be considered by Cabinet are considered.

[51] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

What is meant by “consideration”? Among the ordinary meanings of that word is that of “careful thought”.[52] In the case of Re Toomer and Department of Agriculture, Fisheries and Forestry[53] (Toomer), I said that:
“… The choice of the word ‘consideration’ in s 34(1)(a), rather than the word ‘deliberation’ chosen in s 34(1)(d), suggests that the exemption extends to a document that is prepared simply to inform Cabinet and whose contents are intended to be noted by its Ministers …”[54]
[52] Chambers
[53] [2003] AATA 1301; (2003) 78 ALD 645
[54] [2003] AATA 1301; (2003) 78 ALD 645 at [67]; 671

The substance of s 34(1)(d),[55] to which I referred in Toomer, is now found in s 34(3). As to the meaning of the word “consideration”, I have come to the same conclusion as I did in Toomer but would expand on what I said. The reference in s 34(1)(a)(i) is to submission to Cabinet for its consideration i.e. for its careful thought. A “deliberation” is also defined to mean, among others, “… careful thought. 2 (deliberations) formal and thorough thought and discussion. …”.[56] It seems to me that s 34(3) has used the word “deliberation” to signify any careful thought and discussion that has actually taken place in Cabinet. By way of contrast, s 34(1)(a)(i) is referring to the purpose for which a document has been submitted. It has been submitted for its consideration but there is no requirement that the consideration has been undertaken or that it be undertaken in a particular form. As I said in Toomer:
“… In the decision-making process, it is to be expected that deliberation precedes a decision but deliberation is no less deliberation for not resulting in a decision and a decision is no less a decision for not being supported by written evidence of deliberation. Regard must be had to all of the circumstances.
By the same token the words ‘deliberation’ and ‘decision’ should not be read down by considerations as to whether, for example, matters deliberated or decided upon are preliminary to another matter or whether they relate to matters that may be categorised as procedural or substantive. The protection of Cabinet documents of the type specified has been seen as the protection of an essential public interest and so all its deliberations and decisions are protected as provided by s. 34(1)(d). Taking its deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed. If a document discloses such deliberations or decisions then, as Deputy President Hall said in Anderson and Department of Special Minister of State No 2 (1986) 11 ALN 239 (at 27)):
It is not necessary that the decision or deliberation should be quoted verbatim. To construe s 34(1)(d) otherwise would be to place a premium upon verbal accuracy and to require precision of expression in government documents that could only frustrate rather than promote the proper and efficient conduct of government. Whether, in a particular case, disclosure of such a document would involve the disclosure of a decision or deliberation of Cabinet is a question of fact to be decided in light of all the circumstances.
…”[57]
[55] Section 34(1)(d) provided that “A document is an exempt document, if it is: … 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 Cabinet was officially published.”
[56] Chambers
[57] [2003] AATA 1301; (2003) 78 ALD 645 at [87]-[88]; 677-678

It may be that a document complies with all of the procedures of the Cabinet office but, for one reason or another, is not placed before Cabinet. It could not be said that the document had been “submitted to Cabinet for its consideration” but it may be that the evidence is such that it could be said to have been “proposed by a Minister to have been so submitted”. If that is the finding of fact on the evidence, the document will come within the scope of s 34(1)(a)(i).

A.2 Application of exemption: s 34(1)(a)(i)

In this case, I am satisfied on the basis of the evidence of Mr Taloni that the Executive Summary to the CIE Report was attached to a document that was submitted to Cabinet for its consideration. On the same basis, I am not satisfied that the remainder of the report was presented to Cabinet. The highest that Mr Taloni could put its having been presented was that “it is not unusual” for hard copies of documents to be provided separately to Cabinet ahead of a meeting and that “it is possible” that it was made available. In his oral evidence, Mr Taloni said that it was his “strong sense” that this procedure would have been the case. It was quite proper for him to frame his evidence carefully for, as he acknowledged, he was not in the Cabinet Secretariat in 2006. Mr McInnis was in the same position as Mr Taloni in that he had to rely on DIRD’s files. He did not find anything in those files that threw light on the subject of whether the whole of the CIE report had been available to Ministers either before the Cabinet meeting or in the Cabinet room itself.

While I understand that the Cabinet Secretariat is meticulous in ensuring that the procedures in the Cabinet Handbook are followed by those wishing to submit matters to Cabinet, it does not follow that I am satisfied that the whole of the CIE report was submitted to Cabinet in this case. It may be usual practice today to make the whole of a report available in one way or another when only an Executive Summary of it is attached to a Cabinet submission but there is nothing in the Cabinet Handbook that requires it to be made so available. The references to hand delivery of hardcopy material appear in the Drafter’s Guide but the context is that of attachments to a submission and not that of complete copies of documents from which those attachments have been drawn. Hardcopies of attachments are permitted only when prepared in a format that is incompatible with CABNET and cannot be locked down. The number of copies is prescribed and they are numbered and records kept of the person to whom each numbered copy was distributed. No mention is made of hardcopies of reports from which, or on which, executive summaries are based.

In the absence of any reference in the Cabinet Handbook or the Drafter’s Guide to any general requirement that the whole of the CIE report be circulated when its Executive Summary was included as an attachment to the Cabinet submission and in the absence of any material in the records of PM&C or of DIRD that it was circulated to Ministers or made available in the Cabinet room, I am not satisfied that it was submitted to Cabinet for its consideration.

Whether the Minister proposed to submit it to Cabinet for its consideration is a different question but I think that the answer is the same. I have evidence of what is the usual practice and I have evidence of how the CIE report came into being. Much of the evidence of genesis is subject to a confidentiality order. The material that remains suggests that CIE “… had been engaged to provide the Economic Impact Assessment of Norfolk Island. …”[58] The next sentence in Mr McInnes’s affidavit said that DIRD had advised its Minister that “… it did not anticipate that CIE’s Report would be made public as it would constitute analysis for Cabinet.”[59] Various documents are annexed to Mr McInnes’s affidavit. They show that the Terms of Reference given to CIE were developed by DIRD in consultation with PM&C and Treasury. Those Terms of Reference sought a report on matters that were to be considered by Cabinet but it is one thing to say that the report that was commissioned would constitute analysis for Cabinet in the sense that it would be submitted to Cabinet for its consideration and another to say that it would inform the documents that are prepared and submitted to Cabinet for its consideration. On my reading of the whole of Mr McInnes’s affidavit, including the Annexures, I am satisfied that the CIE report was prepared for the latter purpose i.e. to inform the documents that were prepared and submitted to Cabinet for its consideration. I am not satisfied that the Minister proposed to submit the CIE Report to Cabinet.
[58] Exhibit C at [11]
[59] Exhibit C at [11]

In summary, I have decided that, other than the Executive Summary, the CIE Report does not meet the description given in s 34(1)(a)(i). As a document is only exempt if both ss 34(1)(a)(i) and (ii) are satisfied, the body of the CIE Report (excluding its Executive Summary) is not exempt under s 34(1)(a). Despite that and for the sake of completeness, I will consider s 34(1)(a)(ii) in relation both to the Executive Summary and the remainder of the CIE Report.

B.1 Scope of exemption: s 34(1)(a)(ii)

In order to meet s 34(1)(a)(ii), a document must be a document brought into existence for the dominant purpose of submission for consideration by Cabinet. A “dominant purpose” is a purpose “… which was the ruling, prevailing, or most influential purpose.”[60] Although the following passage was directed to a consideration of legal professional privilege, it is no less relevant in this context. In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd,[61] Kenny J said:
“ The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose …. The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time …”[62]
[60] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404;
[61] [2005] FCA 1247; (2005) 225 ALR 266
[62]

B.2 Application of exemption: s 34(1)(a)(ii)

On the evidence of Mr McInnes, I find that DIRD did not anticipate that the CIE Report would be made public as it would “constitute analysis for Cabinet”. That evidence is supported by the Minute sent by the DIRD to its Minister and annexed to Mr McInnes’s Affidavit. Mr McInnes also gave evidence that the CIE Report was commissioned “for the purposes of the Minister’s submission to Cabinet.”[63]

[63] Exhibit C at [11]

Having regard to the whole context in which this evidence is given, I am not satisfied that Cabinet specifically sought a report from CIE. That follows from the evidence in Mr McInnes’s statement that DIRD undertook a process to select a consultant in June and July 2006. It is apparent from the consultations that were undertaken by the Minister with the Prime Minister and the Treasurer in April 2006 relating to a report for the purposes of the Minister’s submission, that no particular consultant had been selected at that time but that there had been a decision to prepare a further Cabinet submission.

On the evidence of Mr McInnes, I am satisfied that Cabinet asked the Minister, Mr Lloyd, for a submission and that the CIE Report was brought into existence for the purposes of informing those preparing that submission. On the basis of the email correspondence between CIE and DIRD, I am satisfied that CIE was aware that its report would be used for this purpose. In that sense, it was brought into existence “for the purposes of the Minister’s submission to Cabinet.” That finding, however, does not satisfy s 34(1)(a)(ii). That section requires that the document for which exemption is claimed have been brought into existence for the dominant purpose of submission for consideration by Cabinet. That is to say, the document itself has been brought into existence for that dominant purpose. It is not enough that the document be brought into existence so that its contents or conclusions might be included in another document that was brought into existence for the dominant purpose of submission to Cabinet. I do not find in the evidence any suggestion that the CIE Report itself, or any part of it, would be submitted to Cabinet.

That means that no part of the CIE Report satisfies the criterion in s 34(1)(ii). Therefore, quite apart from the fact that it does not meet the criterion in s 34(1)(a)(i), it is not exempt under s 34(1)(a).

Although that conclusion covers the Executive Summary, I will expand upon my reasons a little more. I do not have any evidence that the Executive Summary included in the CIE Report was prepared for the dominant purpose of being included in the Cabinet submission that it informed. There is no separate reference to the Executive Summary in the documentary evidence I have been given and the oral evidence does not satisfy me that submission for consideration by Cabinet was the dominant purpose of its preparation. Therefore, I find that, although the Executive Summary satisfies s 34(1)(a)(i), it does not satisfy s 34(1)(a)(ii) and so is not exempt under s 34(1)(a) of the FOI Act.

Consideration: section 34(3)

In considering s 34(3), I have had regard to the Guidelines issued by the IC.[64] In my view, my analysis of the provision is consistent with them.
[64] Guidelines at [5.65]-[5.66] reproduced at T documents; T20 at 124

The evidence

I have already referred to the evidence of Mr McInnes in so far as the confidentiality order permits me to do so. Section 34(3) raises issues different from those raised by s 34(1)(a) and I will refer to additional evidence. It is found in material to which Mr Sanderson drew my attention. The first is an extract from DIRD’s Annual Report for 2005/2006. The extract does not refer to the CIE Report but is a more general reference to a review of Norfolk Island’s governance:
“In February 2006 the Minister for Local Government, Territories and Roads announced a review of Norfolk Island’s governance arrangements in response to the territory’s declining financial situation. During 2005-2006, the department:
·undertook research and policy development on possible governance alternatives
·coordinated reviews by all departments into issues associated with extending all Commonwealth laws, programmes and services to Norfolk Island
·commissioned supporting research by the Commonwealth Grants Commission and the Australian Bureau of Statistics, and an economic impact assessment of possible governance changes
·provided advice to the Norfolk Island community about the governance reforms, through a website, brochure, information guide and other means.”[65]
[65] Annual Report 2005-2006 at 147
A Media Release was issued by Mr Lloyd in his role as Minister for Local Government, Territories and Roads. It is dated 20 December 2006 and reads:
“The Australian Government has decided that it will not proceed with changes to the governance of Norfolk Island, Minister for Local Government, Territories and Roads Jim Lloyd announced today.
‘Because of concerns about the future sustainability of Norfolk Island, the Australian Government undertook extensive analysis to determine the best way forward to guarantee the future of the island and its community,’ Mr Lloyd said.
‘The Australian Government also consulted extensively with the Norfolk Island Government to increase revenue and to promote the growth of tourism to the island.’
Mr Lloyd said change to the governance arrangements of Norfolk Island could impose significant disruption to the fragile economy of the island.
‘This would not be in the best interests of Norfolk Island at this time as the island’s government work to build a long term future for its community,' Mr Lloyd said;
‘The Australian Government has accepted the assurances of the Norfolk Island Government that it will continue its program of economic and financial reform and that it will seek to improve the transparency and accountability of governance on the island.
‘I would like to thank the Norfolk Island Government and the people of Norfolk Island for their cooperation, patience and assistance during the last year and wish the community well.’”[66]
[66] T documents; ST3 at 1

Following its hearing held on 12 April 2010, the Joint Standing Committee on the National Capital and External Territories asked:
“Has the study or evaluation of the Norfolk Island a) economy and b) Government been undertaken? If so, can you provide the information to the committee?”[67]

The question was answered by the Attorney-General’s Department and it referred to three separate reports prepared by or on behalf of the Commonwealth Government coming within the description and a fourth commissioned by the Norfolk Island Government. The CIE Report was identified as the most recent of the three prepared by or on behalf of the Commonwealth Government. It was described in the answer as:
“… a further study into the economic sustainability of the current Norfolk Island model. The report has not been published and is therefore provided to the Committee on an in-confidence basis. A redacted version of this report was provided to the Norfolk Island Government following a request made by them under the Freedom of Information Act 1982 (Cth). A copy of this redacted version of the report is at Attachment C.”[68]

[67] T documents; ST4 at 4

[68] T documents; ST4 at 4

Mr Sanderson referred to a Question on Notice asked by Senator Back during hearings by the Senate Rural and Regional Affairs and Transport Legislation Committee. Senator Back asked about the progress of the work on the report and whether it dealt with governance. The answer prepared by DIRD and given during Additional Estimates on 12 February 2013 reads:
“The Department of Transport and Regional Services commissioned the Centre for International Economics (CIE) to undertake an economic impact assessment of extending Commonwealth legislation to Norfolk Island. CIE completed its report in October 2006. The report informed the Australian Government’s considerations on future governance arrangements for Norfolk Island in December 2006.
The report is out of date. The representations of the economy in the report do not reflect current circumstances. Data used by CIE was based on 2004-05 financial position of the Norfolk Island Government.”

A. Scope of exemption

A.1 What is a “Cabinet deliberation or decision”?

As I said earlier, I considered the predecessor of s 34(3) (s 34(1)(d)) in Toomer and there is no difference of significance between them. My view of the principles and of my conclusions remain the same. Therefore, I adopt my conclusions and my reasons for reaching them as part of these reasons. I have already set them out at [54]-[55] above.

Public interest test to conditional exemption

In view of my findings, the next question is whether granting access to those parts of the CIE Report that are not purely factual material would, on balance, be contrary to the public interest.

Public interest factors
A. Sections 11A and 11B

Section 11A(5) provides:
“The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1:Division 3 of Part IV provides for when a document is conditionally exempt
Note 2:A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:Section 11B deals with when it is contrary to the public interest to give a person access to the document.”

Section 11B(1) provides:
“This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).”

Section 11B(2) provides that “This section does not limit subsection 11A(5).”

Sections 11B(3) and (4) then go on to provide:
“Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.

Irrelevant factors

(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa)access to the document could result in embarrassment to the Government of Norfolk Island, or cause a loss of confidence in the Government of Norfolk Island;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.”

B. The IC’s Guidelines

Regard must also be had to any guidelines issued by the IC for the purposes of s 11B. Those guidelines are issued under s 93A(1) of the FOI Act.[127] Section 93A(2) provides:
“For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a)       paragraph 9A(b) (information publication scheme);
(b)       subsection 11B(5) (public interest factors);
(c)       subsection 15(5A) (decisions on requests).”
[127] FOI Act; s 11B(5)

B.1 Application of Guidelines in Tribunal

Mr Sibley drew my attention to a decision by Deputy President Jarvis in Re Francis and Department of Defence[128] (Francis), in which he concluded:
“In the present matter the Guidelines are not binding, but they provide assistance to those who administer the FOI Act, and decision-makers, including this tribunal, should apply Guidelines unless there is a cogent reason to do otherwise.[129]”[130]
[128] [2012] AATA 838
[129] “See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 635 at 645”
[130] [2012] AATA 838 at [18]

I respectfully disagree with this conclusion. Section 93A(2) clearly requires that “regard must be had to any guidelines” issued by the IC (emphasis added). That is the imposition of an obligation on any person who performs a function or exercises a power under the FOI Act. Therefore, it cannot be said that the Guidelines are not “binding” in the sense in which that word was used by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (Drake), to which Deputy President Jarvis referred in support of his conclusion.

I also suggest that there is no room either in the FOI Act or in principle for the rider added by Deputy President Jarvis. That is a rider also drawn from the judgment of Brennan J in Drake but in the context of guidelines developed by the then Minister for Immigration and Ethnic Affairs (MIEA) with respect to the making of certain discretionary decisions but made without any legislative imprimatur.[131] The Tribunal was not bound by them but Brennan J effectively set out the practice that would be followed by the Tribunal when reviewing discretionary decisions in such circumstances.
[131]

The nature of the obligation imposed by s 93A must be found in the words in which Parliament has expressed it in s 93A and the more general context of the FOI Act. As O’Loughlin J said in Department of Defence v Fox,[132] to which Deputy President Jarvis referred, the meaning of expressions such as “shall have regard to” or, in this case, “regard must be had” is to be taken from the context in which it appears.[133] I examined these issues further in Re Hull and Australian Postal Corporation[134] (Hull) where I concluded that it may require a decision-maker to take specified criteria or issues into account and “… give weight to them as a fundamental element in making his determination. …”[135] or it may mean that a decision-maker is required “… merely to consider them, rather than treat them as fundamental elements in the decision-making process.”[136] The two cases from which the statements of the two positions are drawn illustrate the matters that have been taken into account in concluding whether the requirement that a decision-maker have regard to certain factors be interpreted one way or the other. Matters that were determinative were the nature of the decision that the decision-maker was called upon to make, the nature of the decision and the purpose of the legislative scheme in which the decision had to be made.
[132] (1997) 24 AAR 171
[133] (1997) 24 AAR 171 at 176
[134] [2013] AATA 635 at [90]-[99]
[135] Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; 25 ALR 497 at 329; …. per Mason J
[136] Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152;

I also concluded in Hull that, whichever interpretation is appropriate in a particular context, there must be a process of consideration if regard is to be had to the matters specified in an enactment. Examples of the outcome of a process of consideration of that sort are:
(1)“… In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.”: Singh v Minister for Immigration and Multicultural Affairs.[137]
(2)The decision-maker is “… obliged to give genuine consideration to the issues …”: Minister for Immigration and Multicultural Affairs v Jia Legeng.[138]
(3)There must be an “… engagement with the question how the … [decision-maker] considered the way, if any, that the issue … related to the facts …”: Lafu v Minister for Immigration and Citizenship.[139]
(4)“… [T]he obligation to consider … is an obligation to consider each representation. The degree of effort that the consideration of a particular representation will involve will of course vary according to its length, its content and its degree of relevance.”: Tickner v Chapman.[140]
(5)“… [I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …” (emphasis added): Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[141]
[137] [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [58]; 163; 611; Sackville J
[138] [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1 at [105]; 540; 445; 24.per Gleeson CJ and Gummow J. At the time, the effect of ss 501(1)(a) and (2) of the Migration Act 1958 was that the Minister might refuse to grant a visa or cancel a visa that had been granted to a person if satisfied that, “having regard to” that person’s past criminal conduct or general conduct, the person was not of good character.
[139] [2009] FCAFC 140; (2009) 112 ALD 1 at [50]; 8 Lindgren, Rares and Foster JJ
[140] Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451; 133 ALR 226; 89 LGERA 1 at 462-463; 239; 12-13 per Black CJ
[141] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 41; 309 per Mason J with whom Gibbs CJ and Dawson J agreed.

If Parliament has required a decision-maker to have regard to certain directions in making decisions but a particular decision can only be made after the exercise of a discretion, a question arises as to whether directions mandated by an enactment can be used to fetter what would otherwise be an unfettered discretionary decision provided for by that enactment. This point arose in the Federal Court in Williams v Minister for Immigration and Border Protection[142] (Williams) when Mortimer J noted that the question had previously led to different answers. She referred to:
“It was not argued that the content of this Direction constituted an unlawful fetter on the s 501 discretion or was otherwise invalid. Arguments to similar effect in relation to other ministerial directions have met with mixed results: see, eg, Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [99]; cf Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327 at [128]-[129], [134]; Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 502; [2005] FCAFC 106 at [87].
Nor was it argued that the content of this Direction engaged the prohibition or limit in s 499(2). The Direction does stipulate that certain matters are to be ‘mandatory considerations’ which a decision-maker must take into account. A direction by the Minister to a delegate, or to the Tribunal, that a consideration must be taken into account in exercising the power under s 501 of the Migration Act, may well be inconsistent with the Act if the scope, subject matter and purpose of s 501, properly construed, do not render that consideration a mandatory one. In other words, the operation of s 499(2), and, no doubt, general principles of interpretation, mean that the Minister cannot by a direction transform a consideration into a mandatory one if the Migration Act does not otherwise make it so. Again, these matters were not the subject of argument in this proceeding and their resolution should await an appropriate case.”[143]
[142] [2014] FCA 674; (2014) 142 ALD 76
[143] [2014] FCA 674; (2014) 142 ALD 76 at [42]-[43]; 89-90

When I apply the principles from the various High Court and Federal Court authorities to which I have referred, I conclude that there is no question that s 93A imposes an obligation on those performing functions or exercising powers under the FOI Act. The Tribunal performs functions under the FOI Act when it complies with the Information Publication Scheme provided for under Part II. It exercises powers under the FOI Act when it reviews a decision made by the IC. It does so rather than under the AAT Act because, although the source of Tribunal’s power to review a decision in respect of which an application has been made to it is dependent on s 25(4) of the AAT Act, its powers to grant or refuse access to a document are the powers conferred by the FOI Act. That follows from the provisions of Division 3 of Part VIIA of the FOI Act.

That brings me to the nature of the obligation that s 93A imposes. As I said, that must be considered in the context of the FOI Act. It is an enactment which potentially makes provision for, depending on the identity of the original decision-maker, either three or four tiers of decision-making. Taking a request for access made to an agency as an example, the original decision and any internal review are conducted within that agency. Provision is then made for review by the IC and further review by the Tribunal. Having regard to the view in matters decided under the Migration Act that the Minister is not bound to have regard to directions he or she has made under s 499 of that Act when making decisions personally,[144] it is open to question whether the Information Commissioner is bound by the Guidelines he has issued under s 93A. I do not need to answer that question for I am concerned with the position of the Tribunal.[145]

[144] See, for example, authorities referred to in Shaw v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 106; (2005) 142 FCR 402; Ryan and Tamberlin JJ; Spender J dissenting

[145] For the same reason, I have not explored the position of a decision-maker at first instance or on internal review. It might be that I would reach the same conclusion as I have in relation to the Tribunal for, like the Tribunal, a decision-maker is required to follow the law. The practical, and I respectfully suggest, proper outcome may be, though, that the Guidelines will be the document to which a decision-maker will have regard for that will be the resource at hand rather than decided cases.

Given that the Tribunal reviews the IC’s decisions and given that the IC has issued the guidelines, it seems to me that Parliament intended that the Tribunal should consider them, and do so genuinely. Beyond that, it did not require the Tribunal to go. In particular, Parliament did not require the Tribunal to give weight to the Guidelines as a fundamental element in its review. That follows from the fact that, to do otherwise, would be to enable the person whose decision is under review to influence the view that the Tribunal takes of the interpretation of the FOI Act and its application. In so far as decisions made on requests for access and their review are concerned, interpretation and application must be the subject of the Guidelines for, with one exception, the FOI Act does not provide for discretionary decisions. Only one potentially discretionary decision is recognised, although not provided for, in the FOI Act.[146] That is a decision by a Minister or by an agency to give access to a document even though it could be claimed to be exempt from access under Part IV of the legislation. Decisions such as whether giving access to a document conditionally exempt under the FOI Act would not, on balance, be contrary to the public interest are not discretionary decisions. Decisions whether documents are exempt are not discretionary decisions.
[146] FOI Act; ss 3A and 11A(4). Section 3A provides that it does not intend to limit the power or a Minister or of an officer of an agency to publish or give access to information or a document despite any restriction in the FOI Act and whether or not access has been requested under s 15. The Tribunal does not have that discretionary power: FOI Act; s 58(2).

To require the Tribunal to give weight to the Guidelines as a fundamental element in its review would be to introduce into the review process something almost akin to a doctrine of deference to the IC’s decision in a merits review setting. It is a doctrine that has not found favour with the courts when reviewing administrative decisions.[147] The reasons for its being out of favour are centred on its purporting to erode the courts’ supervisory role. This Tribunal does not, of course, have a supervisory role in that sense but it is required to review the IC’s decisions and to reach decisions that are correct in law and on the evidence. The regard that it has to the Guidelines must be tempered by its obligation to make correct decisions under the FOI Act. Its obligation to do so must necessarily outweigh the regard it is required to have to the Guidelines issued under s 93A.
[147] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135;

B.2. Passages of Guidelines relating to public interest factors

The relevant paragraphs of those guidelines are set out at [6.1] to [6.33]. These paragraphs largely repeat what is said in the relevant provisions. Where they differ is in [6.6] to [6.10], where the concept of “public interest” is discussed and in [6.26] to [6.29] where factors weighing against disclosure are examined. The main points that are made are:
“6.7 The concept of public interest has also been described as something that is of serious concern or benefit to the public, not merely an individual interest. … It has been held that public interest does not mean of interest to the public, but in the interest of the public…
6.8… The term ‘public interest’ is necessarily broad and non-specific because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered. The concept can be applied to a multitude of situations and circumstances. Public interest considerations (such as the administration of justice) may also be simultaneously evoked in favour and against disclosure of a document in a particular case.
6.9 To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies, based on the particular facts of the matter at the time the decision is made.
6.10 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. The public interest relates to matters of common concern or relevance to all members of the public, or a substantial section of the public. A matter of particular interest or benefit to an individual or small group of people may nevertheless be a matter of general public interest. This is recognised in s 11B(3)(c) of the Act, which states that there can be a public interest in allowing a person to access his or her personal information.”

The Guidelines properly note that factors weighing against disclosure when applying the public interest test are not addressed in the FOI Act in the context of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5). Reference is made to factors that have already found their place in specific exemptions in the FOI Act i.e. circumstances in which “… disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. …”.[148] These are repeated in a list of 14 factors set out in [6.29].
[148] Guidelines, Version 1.2, March 2013 at [6.26]

Application of public interest factors

The factors for and against granting access have to be viewed in light of what is meant by the “public interest” but that is itself not a static concept confined and defined by strict reference points. Where it lies in a particular matter “… will often depend on a balancing of interests including competing public interests …”.[149]
[149] McKinnon [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23 at [231]; 139; 78; 92 per Jacobson J with whom Tamberlin J agreed, citing Sankey v Whitlam (1978) 140 CLR 1 at 60 per Stephen J

On the basis of the correspondence between CIE and DIRD referring to the Centre’s staff visiting Norfolk Island as well as to the reference in the Foreword to the CIE Report to CIE’s having gone there for stakeholder consultations, I find that the people of Norfolk Island knew that a report was being written and that the focus of the report would be the operation and performance of the Norfolk Island economy.[150] It was quite clear that any factual information appearing in the report would be stated as understood at 2006. The Foreword specifically acknowledged that some elements of, and assumptions made in, the report would already be out of date if significant reforms proposed by the Norfolk Island government were to proceed. On the basis of Mr Lloyd’s Media Release in December 2006, I find that “concerns about the future sustainability of Norfolk Island” and the “fragile economy of the island” were already in the public domain in 2006. The fact that the information is out of date is also acknowledged in the answer given to Senator Backs’ question asked in the context of the work of the Senate Rural and Regional Affairs and Transport Legislation Committee in 2013.
[150] The Forward states that stakeholders provided data in response to questions about the operation and performance of the Norfolk Island economy and Mr Lloyd’s Media Release refers to matters relating to the governance of Norfolk Island as well as to its economy and future sustainability.

The assumptions, Mr McInnes said in opposing access, are no longer current and may potentially damage business and public confidence were they to become known. I have not been given any specific evidence as to how access to the information from the CIE Report will manifest itself in the form of any harm from the grant of access. Given that it is plainly known that the information in the CIE Report is out of date and given the concerns that already exist about Norfolk Island’s economy, it is difficult to see how access to the full copy of the CIE Report has the potential to damage business and public confidence in 2015. If that damage were to result from confusion or unnecessary debate, confusion and unnecessary debate are factors specifically excluded from those that I may take into account when weighing up whether access would, on balance, be contrary to the public interest. If access to the CIE Report has the potential to damage business and public confidence in some other way, I need to have evidence of how that may occur. I have not been given that evidence. In view of this, it seems to me that the public interest in promoting the objects of the FOI Act outweighs considerations relating to potential damage to business and public confidence to those on Norfolk Island and considerations relating to the fragility of its economy.

DECISION

For these reasons, I set aside the decision of the Information Commissioner dated 30 June 2014 and substitute a decision that the CIE Report is not an exempt document for the purposes of Part IV of the FOI Act and that DIRD must give Mr Sanderson access to it.

I certify that the one hundred and thirty three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.

Signed: ………[sgd]...................................................

D De Andrade Personal Assistant

Date of Hearing  19 February 2015
Date of Decision  27 May 2015
Counsel for Applicant  Mr C Sibley
Solicitor for the Applicant                 Ms P Richards, Clayton Utz, Canberra
Counsel for the Respondent              Mr C Sibley
Solicitor for the Respondent              Ms P Richards, Clayton Utz, Canberra
For the Other Party  self represented

Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (Alphapharm) (1994) 49 FCR 250;
121 ALR 373; 32 ALD 71 at 260; 383; 80 per Davies J citing US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 529

Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851;
(1996) 45 ALD 39 at 49 per Kiefel J

141 ALR 92; (1996) 34 ATR 183; 71 ALJR 81 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ (McHugh J not deciding the issue)

[2005] FCA 1247; (2005) 225 ALR 266 at [30]; 279 Heard on remittal, but not on this point, from
[2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217;
56 ATR 128; Finn, Merkel and Stone JJ

Pratt Holdings Pty Ltd v Commissioner of Taxation

Drake was decided in 1979 and some ten years before the MIEA’s directions and guidelines were given legislative imprimatur. Section 66DD was inserted in the Migration Act by s 31 of the Migration Legislation Amendment Act 1989 with effect from 1 July 1989. It has since been renumbered as s 499 and reads:
“(1) A person or body having functions or powers under this Act shall perform those functions and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing. (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.”

194 ALR 599 at [54]; 162; 610 per Sackville J

169 ALR 400; 60 ALD 342; Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ