Secretary to the Department of Health v Davis

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0101

SECRETARY TO THE DEPARTMENT OF HEALTH	Applicant
v
THE HON DAVID DAVIS MLC	Respondent

---

JUDGES:	NIALL CJ, EMERTON P and KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2025
DATE OF JUDGMENT:	20 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 40
JUDGMENT APPEALED FROM:	Davis v Department of Health (Review and Regulation) [2024] VCAT 707 (Vice President Judge English)

---

ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Respondent made request under Freedom of Information Act 1982 (‘FOI Act’) for disclosure of documents relied on by Departmental officers in making COVID-19 Stay at Home Directions (No 6) and (No 7) – Applicant claimed exemptions under ss 28 and 30 of FOI Act for documents – Tribunal upheld exemptions for documents except ‘document 34’ – Tribunal ordered release of ‘document 34’ on basis that exemptions under ss 28 and 30 of FOI Act not available – Whether Tribunal failed to properly consider whether disclosure of ‘document 34’ contrary to public interest – Whether open to Tribunal to find contents of ‘document 34’ were a ‘matter of clarification’, ‘not a part explanation rather than a complete position’ and not a matter of ‘opposing positions’ – Whether Tribunal failed to accord procedural fairness to applicant in making relevant findings – Application for leave to appeal refused.

Freedom of Information Act 1982, ss 28, 30; Victorian Civil and Administrative Tribunal Act1998, s 148 considered; Public Health and Wellbeing Act 2008, ss 198, 199 and 200, referred to.

Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; Secretary to the Department of Justice and Regulation v OUX (a pseudonym) [2018] VSCA 178; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, considered.

---

Counsel
Applicant:		Mr JD Pizer SC with Mr T Wood
Respondent:		Mr P Panayi with Mr DD Nguyen
Solicitors
Applicant:	FOI Solutions
Respondent:	S Tomyn & Co

NIALL CJ
EMERTON P
KAYE JA:

The applicant seeks leave, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), to appeal a decision of a Vice President of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’), which ordered the release of a document that was relevant to the decision of the Public Health Commander to issue Stay at Home Directions (Restricted Areas) (No 7) on 2 August 2020 in response to the then COVID-19 pandemic.

Background

On 15 March 2020, the Chief Health Officer gave advice to the Minister for Health (‘the Minister’) concerning a serious, and potentially catastrophic, risk to public health, arising from COVID-19 in Victoria.
On 16 March 2020, the Minister declared a State of Emergency under s 198 of the Public Health and Wellbeing Act 2008 (Vic) (‘PHW Act’), which was published in the Victorian Government Gazette. The State of Emergency was extended on various occasions, and was in force at the times that are relevant to the document that is the subject of the application for leave to appeal.
In July 2020, there was a significant increase in reporting of COVID-19 cases in Victoria. On 30 July 2020, Stay at Home Directions (No 5) commenced operation. On 2 August 2020, at 6:00 pm, Stay at Home Directions (No 6) were issued and commenced operation. They revoked Directions (No 5). Two hours later, at 7:59 pm on 2 August 2020, Stay at Home Directions (No 7) commenced operation, revoking Directions (No 6). The Directions were issued by Dr Finn Romanes, the Public Health Commander.
Section 198(1) of the PHW Act provides that the Minister may, on the advice of the Chief Health Officer, and after consultation, declare a State of Emergency, arising out of any circumstances causing a serious risk to public health.
Section 199(1) of the PHW Act provides that the Chief Health Officer may authorise authorised officers to exercise emergency powers set out in s 200, if a State of Emergency exists under s 198, and the Chief Health Officer believes it is reasonably necessary to grant such an authorisation in order to eliminate or reduce a serious risk to public health. Pursuant to s 199(1), the Chief Health Officer authorised the Public Health Commander, Dr Romanes, to exercise the emergency powers.
Section 200(1)(b) of the PHW Act provides for an emergency power to restrict the movement of any person or group of persons within an ‘emergency area’. Section 200(1)(d) provides that the emergency powers include a power to give any direction that the authorised officer considers is reasonably necessary to protect public health.

Stay at Home Directions (Restricted Areas) (No 7)

The Stay at Home Directions (No 7) (‘Directions (No 7)’) were particularly detailed. For the purposes of this application, it is sufficient to outline them in short form.
In summary, the Directions provided that any person who resided in the Restricted Area (as defined) must not leave the premises in which the person ordinarily resided, other than for five specified reasons, namely:
(a)to obtain necessary goods or services;
(b)to undertake care or for other compassionate reasons;
(c)to attend work or education;
(d)for the purposes of exercise;
(e)for other specified reasons.
The Directions provided for a curfew, which prohibited a person leaving their premises (for any of the specified reasons) between 8:00 pm and 5:00 am, other than in the case of specific exceptions. In addition, a person might only leave the premises in those circumstances if they were to wear a face covering at all times. The Directions further provided that, during the stay at home period, a person, who ordinarily resided in the restricted area, must not permit another person to enter their premises, at which they ordinarily resided (save in the case of specified exceptions). It also prohibited persons attending gatherings of more than one other person for a common purpose at a public place.
The Directions contained specific provisions in relation to each of the five nominated exceptions in which persons were permitted to leave their premises. In particular, it specified the ‘necessary goods and services’ that were the subject of the first exception. It defined the instances of ‘care or other compassionate reasons’ that constituted the second exception. In respect of the third exception, it provided that a person might only leave their premises to attend work or education if it was not reasonably practicable for that person to work from their home premises, or to obtain education services from those premises. In respect of the fourth exception (exercise), the Directions stipulated that a person must not travel further than five kilometres from their premises or do so more than once each day. The fifth exception (leaving home premises for other specified reasons) was limited to persons: leaving their premises for emergency purposes; as required or authorised by law; for purposes relating to the administration of justice; or to attend a place of worship, if that place of worship was operating in accordance with earlier Directions.
The Directions also contained strict limitations on attendance at gatherings. It restricted attendance at weddings to five persons, being the two persons being married, their authorised celebrant, and two other persons witnessing the marriage. It limited the attendance at funerals to no more than ten members of the public, regardless of whether the funeral was held in an outdoor space or an indoor space.

The application by the respondent for documents under the Freedom of Information Act 1982

On 10 September 2020, the respondent made an application for access to documents, relating to the COVID-19 curfew that was imposed on 2 August 2020. In response, the applicant, by letters dated 4 December 2020 and 28 January 2021, denied the request under s 25A(1)(a) of the Freedom of Information Act 1982 (Vic) (‘FOI Act’), on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.
On 6 April 2021, the respondent sought a review of that decision by the Tribunal. On 16 July 2021, by consent the Tribunal ordered, under s 51A(1) of the VCAT Act, that the applicant reconsider the decision. The respondent amended his request to confine it to documents, relied on by the ‘authorised officer’ (as authorised to exercise emergency powers by the Chief Health Officer) in making the Stay at Home Directions (Restricted Areas) (No 7) that came into operation on 2 August 2020.
On 24 February 2022, the applicant located 67 documents relevant to the request, and granted access, in part, to them. The applicant withheld various documents, relying on ss 28, 30 and 32 of the FOI Act, which provide exemptions covering legal professional privilege, internal working documents, and Cabinet in Confidence documents.
Subsequently, the applicant and the respondent narrowed the number of documents that were in issue to some 15 documents. The decision of the applicant, to withhold those documents, was the decision that was under review in the Tribunal.
In a reserved decision, the Tribunal member affirmed the decision of the applicant to withhold 14 of the documents. The Tribunal member set aside the decision of the applicant to exempt one document, referred to as document 34, and substituted for it a decision that that document be released.[1]
[1]Davis v Department of Health (Review and Regulation) [2024] VCAT 707 (‘Reasons’).
Document 34 is an email chain between the Public Health Commander, Dr Romanes, and the Chief Health Officer, Professor Sutton, and includes deliberation and a request for advice relevant to the making of the proposed Directions (No 7) on 2 August 2020.

Evidence before Tribunal

In the hearing before the Tribunal, the respondent relied on two statements by Ms Nicole Brady, the Deputy Secretary, Reform and Planning of the Department of Health. Ms Brady also gave evidence before the Tribunal.
In her first statement, Ms Brady described document 34 as a ‘frank and open deliberation and request for advice’, that was relevant to the making of proposed Directions (No 7). She stated that that document was the type of communication at the highest levels about a very sensitive subject matter that should be permitted to occur without concern about potential disclosure more widely. It contained an expression of views in the context of Dr Romanes’ decision-making role, as part of his statutory responsibilities. Ms Brady also maintained that disclosure of the email would involve disclosure of discussions of Cabinet or a Committee of Cabinet, or matters that were the subject of those discussions.
In her second statement, Ms Brady referred to, and adopted, views expressed by Professor Sutton in a witness statement that the Professor had made in separate proceedings in February 2023. Ms Brady stated that it was vital that officers (particularly at the highest levels and concerning very sensitive subject matter) be permitted to request and give advice and opinions in response to a rapidly evolving public health emergency without inhibition or concern that their advice or opinions would be later published. She adopted the views of Professor Sutton, that if documents, such as document 34, were disclosed, there was a risk that that would inhibit or affect the way in which officers provide advice on the formulation and adoption of similar policies or directions in the future. She observed that any reticence of officers to consult openly, and to give full and frank opinions, could seriously impair the response to future public health emergencies and events. Dr Brady also reiterated that it was clear, from the face of document 34, that disclosure of it would disclose the content of briefings to the Crisis Council of Cabinet (a Cabinet sub-committee), as well as discussions and a decision of that sub-committee.
In cross-examination in the hearing before the Tribunal, Ms Brady accepted that the email exchange, that constitutes document 34, was an exchange between two very senior leaders of the public health response, in which they sought the input of each other, relating to the public health orders that were promulgated (Directions (No 6) and (No 7)).

Submissions before VCAT

In the hearing before the Tribunal, the applicant contended that document 34 is an exempt document, pursuant to s 30 and s 28 of the FOI Act.
In particular, counsel for the applicant submitted that the document satisfies the first two conditions under s 30(1). First, disclosure of the document would disclose matter in the nature of opinion, advice or recommendation, prepared by an officer (or consultation or deliberation that had taken place between officers). Secondly, the opinion, advice or recommendation was prepared (or the consultation or deliberation took place) in the course of, or for the purpose of, deliberative processes involved in the functions of an agency or of the government.
Counsel further contended that, pursuant to s 30(1)(b) of the FOI Act, disclosure of the document would be contrary to the public interest, for the reasons expressed by Ms Brady, namely, that there was a real risk that disclosure of such a document would inhibit or affect the manner in which officers provide advice on the formulation and adoption of similar policies or directions in the future. The respondent further submitted that disclosure of document 34 would involve disclosure of a decision of the Cabinet Crisis Committee, and, accordingly, the document would be exempt pursuant to s 28(1)(d) of the FOI Act.
In response, the respondent accepted that the first two conditions of s 30 were satisfied in respect of document 34. However, he submitted that production of the document would not have the effect of inhibiting candour and frankness in the future in the provision of advice by public servants. The respondent submitted that disclosure of the document was patently in the public interest. In particular, it was submitted, it was relevant for the public to be informed whether, in issuing Directions (No 6) and (No 7), Dr Romanes gave consideration to options other than the imposition of a curfew.
In respect of the exemption claimed under s 28 of the FOI Act, the respondent noted that Cabinet did not have power to impose a curfew. He submitted that, if there was any ‘parallel or tangential’ decision of the Crisis Council of Cabinet on that topic, that decision had already been announced (in August 2020) and implemented.

Reasons of Tribunal

In the introductory section of her reasons, the Vice President noted that both she and the applicant (but not the respondent) had seen the contents of each of the disputed documents.[2]
[2]Reasons, [17].
In the section of her reasons concerning document 34, the Vice President accepted that the document falls within the definition of s 30 of the FOI Act as a working document, as it comprised deliberation or consultation between officers, in the course of the deliberative process, that preceded the issue of the Stay at Home Directions (No 7).[3]
[3]Ibid [114].
The Vice President then gave consideration to whether, pursuant to s 30(1)(b), disclosure of the document would be contrary to the public interest. Her Honour noted that the information in the email was of a sensitive and contentious nature, which was a consideration which would weigh against its disclosure.[4] On the other hand, the email was not a working document or preliminary advice, in which the views expressed could be characterised as preliminary, or as not representing a final position. Nor did the document contain views regarding different possibilities that did not reflect the final position. Accordingly, it was not a document that could lead to confusion or ill-informed debate if disclosed. The document was not a part explanation, which could be misleading and confusing, rather than a complete position.[5]
[4]Ibid [116].
[5]Ibid [117]–[119].
The Vice President also distinguished document 34 from documents which were obtained in confidence in the course of an internal investigation. In the present case, the document related to a concern, expressed by the Chief Health Commander, about a stay at home direction.[6]
[6]Ibid [122].
Her Honour concluded as follows:
This is communication between very senior public officers of a highly sensitive nature. The question is whether disclosure would inhibit frankness and candour in making communications in the future. In the document a genuine question is being raised and answered. It is not a contest of different views but a question and answer.
In my view it is unlikely its release will inhibit candour or frankness, as it not a matter of opposing positions, it is a matter of clarification. The process of clarifying information prior to reaching a decision is not one that Departmental officers would be reticent to engage in if there was a possibility of disclosure. In the event of another public health emergency the release of this document will not impact this type of communication between senior officers.
This is not about an issue that concerns the interests of individuals or is a matter of curiosity. Rather it concerns the interests of the community at large. This is a matter of high public interest, rather than something ‘of interest to the public’ and reflects the seriousness of the issue in question.
In my view, having balanced the above factors, I do not find disclosure contrary to the public interest. The Department has not discharged its onus on the balance of probabilities that this document is exempt.[7]
[7]Ibid [123]–[126].
Accordingly, the Vice President concluded that document 34 is not an exempt document under s 30.
Her Honour then considered whether the document is exempt under s 28(1)(d) of the Act, being a document, the release of which would involve the disclosure of a deliberation, or decision, of the Cabinet.
The Vice President first considered whether the disclosure of the document would involve disclosure of any deliberation of Cabinet under s 28(1)(d) of the FOI Act. In that respect, her Honour concluded as follows:
In this case the document in question has not been before Cabinet. It is an email exchange after the fact that Cabinet has met and made a decision that has been announced. The email exchange refers to a subject or topic that went before Cabinet and refers to something not contained in a Cabinet briefing. As it refers to a topic and something not in existence, no conclusions can be drawn as to it involving disclosure of a Cabinet deliberation. A reference to something not in a briefing cannot disclose the contents of a briefing. I am not of the view it involves the disclosure of any deliberation of Cabinet.[8]
[8]Ibid [240].
The Vice President then considered whether disclosure of the email would involve disclosure of a decision of the Cabinet for the purposes of s 28(1)(d). Her Honour noted that the document contained two references to the decision of Cabinet having been ‘announced today’. Her Honour noted that the Premier had made the announcement of the curfew, so that disclosure of document 34 would not disclose a decision of the Cabinet that had not been officially published.[9] Accordingly, her Honour concluded that document 34 is not an exempt document under s 28(1)(d) of the FOI Act.
[9]Ibid [246].

Proposed grounds of appeal

The application for leave to appeal specifies seven proposed grounds and questions of law. For present purposes, they may be summarised as follows:
(1)The Tribunal erred in finding that document 34 was not a working document, or preliminary advice; that finding was not open on the evidence or other material, or was not supported by logical grounds.
(2)The Tribunal erred in finding, and it was not open to the Tribunal on the evidence or other material to find, that document 34 was not a part explanation, rather than a complete position.
(3)The Tribunal erred in finding, and it was not open to the Tribunal on the evidence or other material to find, that document 34 involved a matter of clarification, or the process of clarifying information, prior to reaching a decision.
(4)The Tribunal erred in confining its assessment, under s 30(1)(b) of the Act, to whether disclosure of document 34 would inhibit frankness and candour, by reference to whether the document involved either a ‘matter of opposing positions’ or a ‘matter of clarification’, when those concepts do not mark the boundary of what would, or would not, inhibit frankness and candour in future pre-decisional communications.
(5)The Tribunal denied the applicant procedural fairness in finding that the process of clarifying information, prior to reaching a decision, is not one that departmental officers would be reluctant to engage in, if there was a possibility of disclosure.
(6)The Tribunal denied the applicant procedural fairness in failing to respond to the applicant’s submission, that the disclosure of document 34 would lead to future communications not being reduced to writing, which would have an adverse effect on future decision-making processes.
(7)The Tribunal denied the applicant procedural fairness in finding that a decision of the Cabinet was in the public domain, and therefore erred in concluding that the disclosure of document 34 would not disclose a decision of Cabinet for the purpose of s 28(1)(d) of the FOI Act, in circumstances in which:
(a)neither the respondent, nor the Tribunal, raised with the applicant the prospect that such a finding might be sought or made;
(b)the evidence of Ms Brady was that the email would disclose a decision of Cabinet; and
(c)if the prospect of the finding being made had been raised in the hearing before the Tribunal, the applicant could and would have made submissions and/or adduced further evidence, as to why that finding should not be made.
Before considering the proposed grounds individually, it is convenient, first, to set out the relevant provisions of the FOI Act, and the legal principles that are applicable to the determination of the issues raised by the grounds of appeal.

Relevant statutory provisions

The proposed grounds of appeal, and the submissions of the applicant in support of them, are directed to the decision by the Tribunal that document 34 is not an exempt document pursuant to ss 28 and 30 of the FOI Act.
Section 28(1) of the FOI Act provides:
Cabinet documents
(1) A document is an exempt document if it is—
(a)the official record of any deliberation or decision of the Cabinet;
(b)a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;
(ba)a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;
(c)a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
Section 30(1) of the Act provides:
Internal working documents
(1)Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act—
(a)would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and
(b)would be contrary to the public interest.

Legal principles

Section 148(1) of the VCAT Act provides that a party to a proceeding may, by leave, appeal a decision of the Tribunal on a question of law to the Supreme Court. The authorities have made it clear that, in determining such an appeal, the court exercises original, and not appellate, jurisdiction, and does so in proceedings which are, essentially, in the nature of judicial review.[10]
[10]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ); [2001] HCA 49; Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 331–3 [18]–[20] (French CJ, Gummow and Bell JJ), 351 [71] (Hayne and Kiefel JJ); [2010] HCA 24 (‘Osland (No 2)’).
In Patsuris v Gippsland and Southern Rural Water Corporation,[11] Garde AJA (with whom Tate and Kyrou JJA agreed) described the restricted nature of the appeal in the following terms:
Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The ‘question of law’ requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.[12]
[11](2016) 218 LGERA 167; [2016] VSCA 109.
[12]Ibid 180 [43]–[44] (citations omitted).
The requirement, that an appeal be confined strictly to a question or questions of law, has thus been regarded as a significant restraint on the role of the court in reviewing the review and decisions of an administrative tribunal. In Secretary to the Department of Justice and Regulation v OUX (a pseudonym),[13] this Court stated:
Under s 148 of the VCAT Act, this Court’s jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a “significant constraint” upon the role of the Court in reviewing a Tribunal’s decision. This “practical as well as principled restraint” means that the Court “will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts”. Hence, the reasons of the Tribunal for the decision under review “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. The reality is “that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.[14]
[13][2018] VSCA 178 (‘OUX’).
[14]Ibid [36] (Priest, Beach and Weinberg JJA) (citations omitted).
In the present case, those considerations are of particular moment. As we will discuss, each of the proposed grounds of appeal focuses on specific findings by the Tribunal, and, in particular, on the terms in which those findings were expressed in the reasons of the Tribunal. In considering each of the proposed seven grounds, it is necessary to keep in mind the context in which the findings were made, and, in particular, in which the Tribunal employed the language in which the findings were expressed.
An appeal from an order of the Tribunal may only be instituted by leave. In Secretary to the Department of Premier and Cabinet v Hulls,[15] this Court gave detailed consideration to factors, which may be taken into account in determining whether leave should be granted.[16] For present purposes, it is sufficient to note that, in order to be granted leave to appeal, the applicant must demonstrate that there is a real or significant argument that, in reaching its decision, the Tribunal made a material error of law that is important to the success of the proposed appeal. It is recognised that if the question of law is of general or public importance, that consideration may weigh in favour of the grant of leave.[17]
[15][1999] VSCA 117.
[16]Ibid [8]–[15] (Phillips JA, with whom Tadgell and Batt JJA agreed).
[17]See also Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 55 [28] (Warren CJ with Chernov JA and Bell AJA agreeing); [2007] VSCA 163.
Grounds 1, 2, 3 and 4 each contend that the Tribunal made a particular finding which was not open to it on the evidence or other material that was before the Tribunal. Each ground is directed to a specific finding which formed part of the Tribunal’s reasoning for its conclusion, pursuant to s 30(1)(b) of the FOI Act, that disclosure of document 34 would not be contrary to the public interest.
As the foregoing authorities make clear, the process of making findings on the basis of facts before it, was essentially the task of the Tribunal. On appeal, this Court may only conclude that the Tribunal made a legal error in making a finding if there was no evidence or other material before the Tribunal which could provide a logical support for that conclusion.[18] The court may reach such a conclusion either if there was no evidence or material before the Tribunal that supports the finding, or if the court were to conclude that the finding was legally unreasonable.[19] In this case, the applicant stressed that no complaint was made on the basis of legal unreasonableness. The argument was simply that the Tribunal made findings of fact that were not open on the evidence or other material before it.
[18]Anderson v Sharpe [2024] VSCA 166, [79] (Emerton P and Kaye JA); Karakatsanis v Racing Victoria Limited (2013) 42 VR 176, 186 [21] (Osborn and Beach JJA); [2013] VSCA 305.
[19]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 573–4 [83] (Nettle and Gordon JJ); [2018] HCA 30 (‘SZVFW’); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ); [2013] HCA 30; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, 28 [34] (Allsop CJ, Besanko and O’Callaghan JJ); [2022] FCAFC 3.
If it is demonstrated that the Tribunal made an error of law in its reasons for decision, in order to succeed, the applicant must also demonstrate that that error was material to the decision made by the Tribunal.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[20] the High Court defined the concept of materiality in the following terms:
The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.[21]
[20](2024) 98 ALJR 610; [2024] HCA 12 (‘LPDT’).
[21]Ibid 615, [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) (citations omitted).
Grounds 5, 6 and 7 contend that the Tribunal erred by failing to afford the applicant procedural fairness in respect of three findings made by it. Under grounds 5 and 7, it is contended that the Tribunal made a particular finding on which it had not, first, afforded the applicant an opportunity to be heard.
In a particular case, a decision making authority may fail to comply with the principles of procedural fairness if it makes a finding, adverse to a party, without first giving that party appropriate notice of its intention to make that finding and the opportunity to respond to it.[22] In considering the content of that aspect of the requirement of procedural fairness, the courts have noted that while a decision maker is required to identify a proposed finding or decision to a person who might be affected by it, the decision maker is not required to expose its mental processes or provisional thinking in respect of those issues.
[22]Mahon v Air New Zealand Limited [1984] AC 808, 821 (Lord Diplock, Lord Keith, Lord Scarman, Lord Bridge and Lord Templeman).
That distinction was first articulated by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd.[23] The Court stated the applicable principle in terms which have been adopted and applied in a number of subsequent decisions:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[24]
[23](1994) 49 FCR 576; 127 ALR 699.
[24]Ibid (1994) 49 FCR 576, 590–1; (1994) 127 ALR 699, 715 (Northrop, Miles and French JJ); see also Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, 117–118 [194] (Kirby J); [2001] HCA 22; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212, 219 [22] (Gleeson CJ, Gummow and Heydon JJ); [2003] HCA 56; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 599 (French CJ and Kiefel J); [2011] HCA 1.
By ground 6, it is contended that the Tribunal denied the applicant procedural fairness in failing to respond to a particular submission made by the applicant.
In an appropriate case, a failure by a decision making body to respond to a substantial, clearly articulated argument may amount to a failure of procedural fairness.[25] In considering whether the Tribunal has erred in the manner contended for in ground 6, it is of course necessary to keep in mind the admonition, that has been repeated in a number of authorities, that the reasons of a tribunal are intended to inform, and they are not to be scrutinised by overzealous judicial review seeking to discern some inadequacy in the manner in which the reasons are expressed.[26]
[25]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ); [2003] HCA 26; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 600 [27] (Kiefel CJ, Keane, Gordon and Steward JJ); [2022] HCA 26.
[26]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6; OUX [2018] VSCA 178 [36] (Priest, Beach and Weinberg JJA).
The first six grounds are each directed to the conclusion by the Tribunal that the applicant had not demonstrated, for the purposes of s 30(1)(b) of the FOI Act, that disclosure of document 34 would be contrary to the public interest.
It has been acknowledged that there are difficulties in ascribing a fixed and precise content to the phrase ‘public interest’.[27] It is also recognised that the concept of ‘public interest’ may involve a very wide range of relevant considerations.[28] Nevertheless, and unsurprisingly, it is recognised that there is an important public interest in citizens being informed of the processes of their government and its agencies.[29]
[27]Osland v Secretary of the Department of Justice (2008) 234 CLR 275, 300 [57] (Kirby J); [2008] HCA 37.
[28]Cf Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal & Ors (2012) 246 CLR 379, 400–401 [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 36.
[29]Harris v Australian Broadcasting Corporation (1983) 50 ALR 551, 561 (Beaumont J); Osland (No 2) (2010) 241 CLR 320, 345 [47] (French CJ, Gummow and Bell JJ); Cf The Commonwealth of Australia v John Fairfax and Sons Limited & Ors (1980) 147 CLR 39, 52 (Mason J); Theophanous v Herald and Weekly Times Limited (1994) 182 CLR 104, 140 (Mason CJ, Toohey and Gaudron JJ); [1994] HCA 46.
In Osland (No 2), the High Court was concerned with an application, under the FOI Act, for access to a number of documents by the appellant, relating to her failed petition to the Attorney-General of Victoria for a pardon, in the exercise of the Royal Prerogative of Mercy, in respect of her conviction for the murder of her husband. In considering whether the disclosure of advices, provided to the Attorney-General, would be in the public interest for the purposes of s 50(4) of the FOI Act, French CJ, Gummow and Bell JJ stated the following:
The exercise of the prerogative of mercy in relation to a person convicted of murder engages the public interest at a high level of importance. That importance is all the greater when, as was accepted by all of the authors of the advices in this case, the legal correctness of the conviction is not in issue, nor is it able to be put in issue. A decision for or against the exercise of the prerogative in such a case involves considerations of fundamental importance to the whole community relating to the right to life and the community's treatment of those who violate that right by killing another without legal justification or excuse.[30]
[30]Osland (No 2) (2010) 241 CLR 320, 345 [47].
In The Commonwealth of Australia v John Fairfax & Sons Ltd & Ors, the Commonwealth sought an interlocutory injunction restraining the publication, by the defendants, of the contents of a book that purported to contain unpublished information relating to matters of foreign policy and defence, including the East Timor crisis, the renegotiation of agreements covering the United States military bases in Australia, the presence of the Soviet Union in the Indian Pacific, and Australia’s support for the Shah of Iran. One of the bases upon which the Commonwealth sought the injunction was that the information was confidential information that had been improperly or surreptitiously obtained by the publisher. In rejecting that basis for the granting of the injunction, Mason J stated:
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained.[31]
[31](1980) 147 CLR 39, 52 [27]–[29]; [1980] HCA 44.

In the present case, plainly, there was a public interest in the disclosure of documents relevant to the decisions of the Public Health Commander to issue the Stay at Home Directions (No 6) and (No 7). It was in that context that the critical issue for the Tribunal was whether the considerations relied on by the applicant, in opposing disclosure of document 34, were such that, pursuant to s 30(1)(b) of the FOI Act, it would be contrary to the public interest to disclose the document. Grounds 1 to 6 are each directed to the Tribunal’s conclusion concerning that issue, and to the reasoning of the Tribunal for that conclusion.

Ground 1 - submissions

In support of ground 1, counsel for the applicant submitted that, properly characterised, document 34 recorded preliminary advice or opinion. Counsel noted that, in her first statement, Ms Brady deposed that document 34 was a frank and open deliberation that took place in the course of making proposed Stay at Home Directions (No 6) and (No 7). The Tribunal accepted that, for the purposes of s 30(1)(a) of the FOI Act, the document contained matter in the nature of consultation or deliberation, that had taken place between officers in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency, or Minister, or of the government.[32] The Tribunal also found that the document recorded that a ‘genuine question is being raised and answered’,[33] and that that occurred in a context in which Dr Romanes had not yet made a final decision about issuing Directions (No 6) and (No 7). Accordingly, it was submitted, the matters contained in the email exchange that constituted document 34, were necessarily ‘preliminary’ to the final decision being made. However, contrary to those findings, the Tribunal found that document 34 was not a working document or preliminary advice, in which views expressed could be characterised as preliminary, or not representing a final position.[34] Counsel submitted that that finding was not open on the evidence.
[32]Reasons, [114].
[33]Ibid [123].
[34]Ibid [117].
Alternatively, it was submitted that the Tribunal erred in law, because its conclusion, that release of document 34 would not be contrary to the public interest, was based on a finding of fact that was not supported by logical grounds. Given that the applicant expressly disavowed any complaint on the basis of legal unreasonableness, we take this to be a contention that, as a matter of logic, the evidence did not support the finding.
Counsel for the respondent commenced his submissions by contending that grounds 1, 2, 3 and 4 do not involve any question of law, but, rather, they constitute no more than a merits review of the particular decisions made by the Tribunal, or a submission concerning the weight, given by the Tribunal to the evidence before it.
In response to ground 1, counsel submitted that the submissions made by the applicant involved construing the particular finding by the Tribunal out of context. In particular, counsel submitted that there was no error in the Tribunal considering that the email was not a ‘working document or preliminary advice’, in which the views expressed could be characterised as preliminary and not representing a final position.

Ground 1 – Analysis and conclusion

As noted, ground 1 focuses on the observation, by the Tribunal, that:
The email is not a working document or preliminary advice, where views expressed can be characterised as preliminary or not representing a final position.[35]
[35]Ibid [117].
In considering ground 1, it is important that that characterisation of document 34, in that passage of the Tribunal’s decision, be understood in its proper context.
The Tribunal found that document 34 was a working document for the purposes of s 30 because it comprised deliberation or consultation between officers and was produced in the course of the deliberative process. It showed the ‘thinking process’ of departmental officers. However, it was not a working document of a kind that expressed views that were preliminary or did not represent a final position.
Immediately preceding the observation set out above, the Tribunal had noted that draft internal working documents or preliminary advices of opinions are ‘more generally than not’ inappropriate for release, particularly when the final version of the document has been made public.[36] Plainly, document 34 was not a document of that character. The views contained in the document could not be properly characterised as preliminary, and it certainly was not a draft internal working document. Rather, as the Tribunal noted, the document contained a genuine question that was asked (by the Chief Health Commander) and answered (by the Chief Health Officer). As such it was ‘… not a contest of different views, but a question and answer’.[37] It was in that context that the Tribunal described document 34 as not being a ‘working document or preliminary advice’ in which views expressed could be characterised as preliminary.
[36]Ibid [116].
[37]Ibid [123].
In our view, it was open to the Tribunal to find that document 34 was not a record of preliminary or inconclusive opinions or advices. On its face, and as described in the statement of Ms Brady, and in the Tribunal’s reasons,[38] the document contained a question asked by the Public Health Commander, and responded to by the Chief Health officer.
[38]Ibid [109], [123].
Furthermore, the Tribunal’s characterisation of document 34 was not inconsistent with the Tribunal’s earlier acceptance that the document came within the definition of s 30(1)(a) of the FOI Act, in that it was a working document, comprising ‘consultation or deliberation’ between officers.[39] The document was, quite plainly, part of the deliberation or consultation between officers that took place before the issue of Directions (No 6) and (No 7). As such, it might be described as a ‘working document’. However, that characterisation of the document was not inconsistent with, and did not render illogical, the Tribunal’s consideration that the document was not a working document or preliminary advice in the sense of being a document in which views expressed in it were preliminary and not representing a final position on the issue considered in it.[40]
[39]Ibid [194].
[40]Ibid [117].
For those reasons, the matters raised by ground 1 do not demonstrate any relevant error of law by the Tribunal. Accordingly, ground 1 must fail.

Ground 2 – submissions

In support of ground 2, counsel for the applicant noted that the Tribunal accepted that it was relevant to take into account that decision makers should be judged on their final decision and their reasons for it, and not on what might have been considered or recommended in the course of preliminary or draft internal working documents.[41] The evidence before the Tribunal established that briefs on numerous matters had been prepared for Dr Romanes to provide him with information to take into account, in making his final decisions to make Directions (No 6) and (No 7). Accordingly, the email exchange in document 34 was only one of many documents taken into account by Dr Romanes in making those decisions. Further, it involved Dr Romanes seeking advice from Professor Sutton on a specific topic, and Professor Sutton giving advice on that topic, in a context in which Dr Romanes had not yet made a final decision about issuing Directions (No 6) or (No 7).
[41]Ibid [118].
Thus, it was submitted, the Tribunal erred in concluding that document 34 was not a ‘part explanation’, rather than a ‘complete position’.[42] It was submitted that that finding was not open on the evidence. The information contained in the document could constitute no more than a part explanation for the decisions to make Directions (No 6) and (No 7), and it could not reflect Dr Romanes’ ‘complete position’.
[42]Ibid [119].
In response to ground 2, counsel for the respondent submitted that, on a plain reading, document 34 was not a partial explanation. Rather, on its face, the document presented a complete position in respect of the question that was addressed in it, and which was material to the issue of Directions (No 6) and Directions (No 7).

Ground 2 – analysis and conclusion

Ground 2 is directed to the observation by the Tribunal, that the document was –
… not a part explanation which could be misleading and confusing rather than a complete position.[43]
[43]Ibid [119].
Again, it is necessary to consider that observation by the Tribunal in its proper context. That passage, in the Tribunal’s reasons, was immediately preceded by the observation by the Tribunal that decision-makers should be judged on their final decision and reasons for it, and ‘… not on what might have been considered or recommended by others in preliminary or draft internal working documents’.[44] The passage in question was also preceded by the section of the reasons that are the subject of ground 1, namely, the consideration by the Tribunal that the document was not a draft internal working document or preliminary advice and opinion. Rather, as we have noted, document 34 contained a question raised (by the Chief Health Commander) and responded to (by the Chief Health Officer). In that sense, it comprised a complete position on an issue that was relevant for the Chief Health Commander to take into account in his determination to issue Directions (No 6) and (No 7), as distinct from a partial explanation, which could be misleading and confusing if it was the subject of disclosure.
[44]Ibid [118].
Further, the passage in question, that is the subject of ground 2, should be understood in the context of the conclusions by the Tribunal concerning three other documents, which the applicant claimed were exempt from disclosure, pursuant to s 30 of the FOI Act.
Document 7 comprised an email from a Department officer to various other officers, concerning the timing of announcements on 2 August 2020 and the commencement of certain measures. The Tribunal determined that disclosure of that document would be contrary to the public interest under s 30(1)(b) for two reasons. The first reason, which is relevant for present purposes, is that the draft document disclosed a number of items that needed to be checked and therefore might not reflect the final position. Accordingly, the Tribunal considered that it could be confusing and unhelpful to reveal possible actions that were considered, but not ultimately adopted.[45]
[45]Ibid [94].
The Tribunal reached a similar conclusion concerning document 22, which was an email chain that comprised confidential exchanges that described changes that were made to the Single Source of Truth document for the purpose of consulting in respect of, and communicating details of proposals for, the final Directions (No 6) and (No 7). The Tribunal considered that it would be contrary to the public interest for that document to be disclosed, because it might cause confusion in the absence of the full context of the evolution of the process, as the emails in question only provided a part explanation.[46]
[46]Ibid [107].
Similarly, the Tribunal described document 44 as an email chain between a senior Departmental officer and other staff that disclosed one part of the deliberations that preceded Directions (No 6) and (No 7), but did not reveal the complete process. As such, it was ‘an iterative process at an early stage of the policy development process’ that formed ‘part of an explanation rather than the complete and final version of the policy.’ For that reason, the Tribunal considered that disclosure of the document could inhibit candour and cause confusion.[47]
[47]Ibid [136].
It was in that context that the Tribunal considered document 34, and made the observation that is the subject of ground 2, that document 34 was not a ‘part explanation which could be misleading and confusing rather than a complete position’.[48] That is, the Tribunal member, in effect, contrasted document 34, in which a question was asked and a direct answer given, with documents 7, 22 and 44, which contained evolving considerations, which did not necessarily reflect the final conclusion, and the disclosure of which might be confusing and unhelpful. Understood in that context, it could not be maintained that it was not open to the Tribunal to thus characterise document 34 and to take it into account in determining whether, as such, disclosure of the document would be contrary to the public interest pursuant to s 30(1)(b) of the FOI Act.
[48]Ibid [119].
For those reasons, the applicant has failed to demonstrate that the characterisation by the Tribunal of the document as a ‘complete position’, was not open on the evidence. It follows that ground 2 must fail.

Ground 3 – submissions

Ground 3 is to the effect that the Tribunal erred in finding that document 34 involved a matter of clarification, or the process of clarifying information prior to reaching a decision.
In support of ground 3, counsel for the applicant submitted that it would be contrary to the public interest if disclosure of a document would have an adverse effect on the integrity or effectiveness of decision making, investigative or other processes of a public officer. Counsel noted that the Tribunal accepted that that factor was relevant to the question of whether it would be contrary to the public interest for the document to be disclosed. However, the Tribunal found that document 34 involved a matter of clarification, or the process of clarifying information, before Dr Romanes reached his decision.[49] Counsel submitted that that finding was not open on the evidence or other material before the Tribunal. In particular, counsel referred to the evidence of Ms Brady, that the email chain was a request for, and provision of, advice, which, it was submitted, was different to a matter of clarification. Rather, it was a request by Dr Romanes for advice from Professor Sutton as to how to proceed. In that respect, counsel relied on the statement, by Professor Sutton in other proceedings, which was adopted by Ms Brady in her second statement, that it was vital that officers at the highest level be able to request and give advice and opinions at pace in response to a rapidly evolving public health emergency without inhibition or concern that their advice and opinions would later be published.
[49]Ibid [124].
In response to ground 3, counsel for the respondent relied on the submissions that were addressed to ground 2. In particular, counsel submitted that document 34, on its face, plainly involved a question being asked, and information being provided in response to that question. Thus, it was submitted, the Tribunal was correct to conclude that the document involved a matter of clarification. It was further submitted that the issues raised by the applicant under ground 3 constitute no more than an impermissible merits review of that aspect of the decision of the Tribunal.

Ground 3 – analysis and conclusion

In considering ground 3, it is, again, important to keep in mind the particular context in which the Tribunal made the observation in question.
In the section of the reasons to which ground 3 is directed, the Tribunal was considering the question whether disclosure of document 34 would inhibit frankness and candour in communications by senior public officers in the future. The Tribunal noted that the document did not contain a ‘contest of different views’, rather, it contained a genuine question being raised and answered.[50] It was on that basis that the Tribunal then concluded that the release of the document would be unlikely to inhibit candour and frankness, as it was ‘not a matter of opposing positions [but] … a matter of clarification’.[51]
[50]Ibid [123].
[51]Ibid [124].
That is, the Tribunal described the document as involving a matter of clarification, as a shorthand method of distinguishing it from a document or documents, which might record competing and preliminary positions taken by Departmental officers that preceded the ultimate decision to issue the Directions in question. Again, considered in that proper context, it could not be concluded that it was not open to the Tribunal to characterise the document in that way.
Again, it is relevant to consider that characterisation by the Tribunal of document 34, in the context of its consideration of documents 7, 22 and 44, which the Tribunal concluded should be exempt from disclosure pursuant to s 30(1)(b) of the FOI Act.
Clearly, document 34 was quite distinct from those three documents, each of which reflected partial positions and pre-decision communications in a rapidly evolving process. By contrast, as the Tribunal concluded, document 34 did not record ‘a contest of different views’[52] and was not a ‘part explanation which could be misleading and confusing’. Rather, as the Tribunal noted, it contained a question that was raised, and an answer that was provided to that question.[53] It was in that sense described by the Tribunal as ‘a matter of clarification’.[54] Understood in that context, again, it could not be concluded that it was not open to the Tribunal to so characterise document 34.
[52]Ibid [123].
[53]Ibid [123].
[54]Ibid [124].
For those reasons, ground 3 does not establish any arguable error of law. Accordingly, ground 3 must fail.

Ground 4 – submissions

As with ground 3, ground 4 is also directed to the observation by the Tribunal that it was unlikely that release of document 34 would inhibit candour or frankness, as it was ‘not a matter of opposing positions [but] … a matter of clarification’.[55]
[55]Ibid [124].
In support of ground 4, counsel for the applicant submitted that it was relevant for the Tribunal to consider whether release of document 34 would inhibit frankness and candour in making similar communications in the future. In that respect, counsel referred to the evidence of Ms Brady that it was vital that officers, particularly at the highest levels, be permitted to request and give advice about sensitive matters without inhibition or concern that their advice and opinions would later be published. Counsel noted that the Tribunal did not refer to that evidence given by Ms Brady. Counsel submitted that the Tribunal erred by assuming that the frankness and candour of future communications could not be affected in circumstances in which all that had been sought, in the email exchange in document 34, was clarification of a matter. In particular, it was submitted, by making that assumption, the Tribunal erroneously placed unduly narrow boundaries on how frankness and candour might be affected by the release of document 34, and, consequently, on what is relevant to an assessment of the public interest in this context. In doing so, it was submitted, the Tribunal addressed the wrong question.
In response to ground 4, counsel submitted that the Tribunal did not place boundaries on its consideration of the question whether disclosure of document 34 would be contrary to the public interest. Rather, it was submitted, it is plain from a reading of the Tribunal’s decision that her Honour considered all of the relevant factors in determining that question.

Ground 4 – analysis and conclusion

Once again, when the reasons of the Tribunal are considered in their proper context, it is evident that ground 4 is based on a false premise, namely, that in the passage in question, the Tribunal was placing specific (and impermissible) boundaries on how the asserted inhibition of frankness and candour that would be caused by the release of the document could be considered.
In the passage of the reasons that is the subject of ground 4, it is clear that the Tribunal was not marking out a specific boundary or limitation on that issue. Rather, it is evident, both from the language used by the Tribunal, and the context in which the passage in question occurs, that the Tribunal was doing no more than contrasting the content of document 34 — namely, a document in which a specific issue was raised and answered, and thus clarified — with a document the release of which might inhibit candour or frankness in the future, namely, a document which contained competing or opposing positions, or points of view. That contrast was employed by the Tribunal to explain and exemplify why it did not consider that the release of document 34 would be likely to inhibit candour or frankness, in communications involving the same kind of exchange between public officers, in the future. That contrast was of particular relevance in the context of the terms in which the Tribunal described and considered documents 7, 22 and 44. Unlike those documents, document 34 did not contain expressions of opposing, evolving or partial expositions.

Accordingly, contrary to the submissions of the applicant, the reasoning employed by the Tribunal did not involve or contain any demarcation by the Tribunal of ‘boundaries’ on how frankness and candour might be affected by the release of such documents as document 34.
For those reasons, ground 4 cannot succeed.

Ground 5 – submissions

As we have noted, grounds 5, 6 and 7 contend that the Tribunal erred by failing to afford the applicant procedural fairness in a number of respects.
Ground 5 contends that the Tribunal denied the applicant procedural fairness in its finding that the process of clarifying information, prior to reaching a decision, is not one that a Departmental officer would be reluctant to engage in if there was a possibility of disclosure.
Under ground 5, counsel for the applicant noted that at no point during the proceeding, did the Tribunal put to counsel for the applicant, or to Ms Brady, that document 34 involved a process of clarifying information. It was submitted that the failure of the Tribunal to do so was a breach of procedural fairness. Counsel submitted that the approach by the Tribunal, in drawing a distinction between a matter of opposing positions and a matter of clarification, was not obvious. It was submitted that the breach of procedural fairness by the Tribunal was material, as the Tribunal’s decision could have been different if the breach had not occurred. In particular, the department could have explained, and if necessary adduced evidence about, why the finding should not be made and why the Tribunal should not adopt such an approach.
In response to ground 5, counsel for the respondent submitted that, in the hearing before the Tribunal, the applicant was represented by experienced senior counsel. It was evident, from the two statements of Ms Brady, that the applicant was aware that there might be a live issue as to whether the process of clarifying information, before reaching a decision, would be one in which Departmental officers might be reluctant to engage if there was a possibility that their contributions to the process might be disclosed. Accordingly, it was submitted, the point relied on by the Tribunal, namely, that document 34 involved a process of clarifying information, was an issue of which the applicant either was, or ought to have been, aware.

Ground 5 – analysis and conclusion

In determining whether disclosure of document 34 might inhibit or preclude frankness or candour in making communications in the future, it was plainly relevant for the Tribunal to consider, and take into account, the nature and content of the document.
The Tribunal’s characterisation of the document — as containing a genuine question being raised and answered — could hardly have been a surprise to the applicant. That characterisation was quite evident on the face of the document and from the terms in which Ms Brady had described it in her first statement. The Tribunal’s shorthand description of the document, as involving ‘a matter of clarification’, was an appropriate and unsurprising reference to the document and its content.
Equally, it could not have been surprising that the Tribunal considered that the document, as such, was quite different to, and distinct from, a document which contained ‘opposing positions’. Again, that characterisation of the document, by the Tribunal, was consistent with the description given to it by Ms Brady in her statement, and is also quite apparent from the face of the document itself, which was in evidence before the Tribunal and in possession of the applicant.
In those circumstances, it could not be concluded that the Tribunal failed to comply with the principles of procedural fairness by not expressly raising with counsel its characterisation of the document as ‘a matter of clarification’ (as distinct from a matter of opposing positions).
For those reasons, ground 5 does not succeed.

Ground 6 – submissions

Ground 6 contends that the Tribunal denied the applicant procedural fairness by failing to respond to the submission, by the applicant, that disclosure of document 34 would lead to future communications not being reduced to writing, which, in turn, would have an adverse effect on future decision-making processes.
In support of ground 6, counsel submitted that the Tribunal failed to address the submission, by the applicant, that it was relevant for the Tribunal to consider that, if documents such as document 34 were released, it would tend to create a reluctance to record such discussion or debate in writing, which, in turn, would compromise the quality of advice provided to the ultimate decision-maker in the future. In that respect, counsel referred to submissions, that the applicant made to the Tribunal, to the effect that disclosure of draft and other preliminary internal working documents would tend to inhibit preliminary discussion or debate, or create a reluctance to record such discussion or debate in writing, which, in turn, would compromise the quality of the advice provided to the ultimate decision-maker. It was submitted that by failing to address that argument, the Tribunal ignored or overlooked a substantial and clearly articulated argument that was advanced by the applicant.
In response to ground 6, counsel for the respondent submitted that the Tribunal was not required to address, separately, the issue, whether release of document 34 might deter public officers, in the future, reducing their communications to writing. It was submitted that, in the hearing before the Tribunal, the applicant did not make any specific submissions to that effect.

Ground 6 – analysis and conclusion

In considering ground 6, the starting point is that the Tribunal, in its reasons, did expressly address the issue of whether release of document 34 might inhibit candour or frankness in communications between public officers in the future.
As we have discussed, in considering grounds 3, 4 and 5, the Tribunal addressed that issue and concluded that disclosure of document 34 would not inhibit such communications, because the document itself comprised a ‘genuine question … being raised and answered’, and was not a contest of different or opposing views.[56] It was for that express reason that the Tribunal considered that it was unlikely that release of the document would inhibit candour or frankness in such communications in the future.[57]
[56]Ibid [123].
[57]Ibid [124].
It may be acknowledged that the Tribunal did not address, specifically, the more limited issue as to whether release of the document would, or might, have the effect of discouraging communications to be undertaken in writing (as distinct from orally). However, such a consideration was essentially a subset of, and subsumed in, the consideration by the Tribunal as to the potential effect of the disclosure of the document on future ‘candour or frankness’ in the communications of views between senior public officers in the future.
In effect, the applicant relied on that potential effect of the disclosure of the document as a basis for contending that disclosure might discourage future communications in writing. As we have noted, the Tribunal considered that issue and concluded that, because of the nature and contents of document 34, it was unlikely that its release would inhibit candour or frankness. That is, the Tribunal considered, and rejected, the fundamental premise on which the applicant had contended that disclosure of the document might discourage future communications to be undertaken in writing.
Accordingly, it could not be maintained that the Tribunal denied the applicant procedural fairness by not responding specifically to the aspect of the applicant’s submissions relating to future candour and frankness, that concerned the issue of future communications between public servants in writing.
For those reasons, ground 6 does not succeed.

Ground 7 – submissions

Ground 7 is directed to the Tribunal’s conclusion under s 28(1)(d) of the FOI Act, that disclosure of document 34 would not involve the disclosure of a decision of the Cabinet. The ground was not concerned with disclosure of deliberations of Cabinet.
In support of ground 7, counsel for the applicant referred to the evidence of Ms Brady, that disclosure of parts of document 34 would involve disclosure of a decision of the Crisis Council of Cabinet, which was a sub-committee of Cabinet. Nevertheless, the Tribunal concluded that release of document 34 would not disclose a decision of that Crisis Council, because the decision made by the Crisis Council had already been made public. The Tribunal drew that conclusion from references in document 34 to the decision of Cabinet having been announced ‘today’, and to it being in the public domain that the Premier had made the announcement concerning the curfew.
Counsel for the applicant submitted that that line of reasoning did not reflect any submission made by the respondent, and that the Tribunal had not raised that line of reasoning with counsel of the applicant. In those circumstances, it was contended, the applicant was denied an opportunity to respond to such a line of reasoning, and, accordingly, the applicant had not been afforded procedural fairness.
In response to ground 7, counsel submitted that it was plain on the face of document 34 that the applicant needed to address whether the relevant decision of cabinet had already been published, so the disclosure of document 34 would not involve disclosure of a decision of the Cabinet.

Ground 7 – analysis and conclusion

It is important to keep in mind that ground 7 is not directed to the correctness of the conclusion, by the Tribunal, that disclosure of document 34 would not disclose a decision of Cabinet, because that decision had already been announced and was in the public domain.[58] In particular, it is not contended that that finding was not open to the Tribunal on the evidence before it.
[58]Ibid [246].
The fundamental contention contained in ground 7 is that the Tribunal had not alerted the applicant to the possibility that it might make such a finding, in circumstances in which the evidence of Ms Brady was to the effect that the email would disclose a decision of Cabinet, and where the applicant could have made submissions or adduced further evidence relating to the point.
In considering that proposition, it is important to bear in mind that in the hearing before the Tribunal, the respondent did not himself have possession of, or access to, document 34. As such, the respondent was not in a position to raise or rely on the proposition on which the Tribunal ultimately made its decision in respect of the application of s 28(1)(d) of the FOI Act. To that extent, the respondent was necessarily precluded from making relevant submissions concerning that aspect of his claim for disclosure of document 34.
In those circumstances, and, in particular, where the applicant was represented by counsel, it was the responsibility of the applicant’s counsel to raise with the Tribunal any reasonable point, which might have been relied on by the respondent, had the respondent had access to the document and thus been able to raise and rely on such a proposition him or herself.
In the present case, the proposition, on which the Tribunal ultimately relied in rejecting the availability of the exemption under s 28(1)(d) of the FOI Act, was quite plainly evident on the face of document 34. As the Tribunal pointed out, there were two references in the document to a decision of Cabinet having been announced ‘today’.[59] The contents of document 34, when combined with the terms of s 28(1)(d), rendered the question whether the decision of the Cabinet had already been disclosed an obvious one that the applicant was obliged to deal with in order to satisfy the Tribunal of the exemption relied on.
[59]Ibid [246].
In those circumstances, the proposition ultimately relied on by the Tribunal was, or at least should have been, sufficiently apparent to the applicant to enable it to be addressed, and, if necessary, for appropriate evidence to be adduced in response. Accordingly, it cannot be maintained that the applicant was denied procedural fairness on the basis that the Tribunal did not expressly raise the point with counsel for the applicant. In essence, the point was one which was quite evident on the face of document 34, and, indeed, it was a point which the applicant ought to have raised with the Tribunal, given that the respondent could not have done so because he had no access to document 34.
It follows that ground 7 of the application for leave to appeal must fail.

Summary of conclusions

For the foregoing reasons, we have concluded that each of the seven proposed grounds of appeal do not succeed. Accordingly, the application for leave to appeal is refused.

[2025] VSCA 40

20 March 2025