Sutherland Shire Council and Department of Industry, Science and Resources and Department of Finance and Administration

[2001] AATA 718

DECISION AND REASONS FOR DECISION [2001] AATA 718

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1637

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SUTHERLAND SHIRE COUNCIL         
  Applicant
           And    Re   And  DEPARTMENT OF INDUSTRY, SCIENCE AND RESOURCES  No N2000/1582 SUTHERLAND SHIRE COUNCIL  Applicant DEPARTMENT OF FINANCE AND ADMINISTRATION       
  Respondent  

DECISION

Tribunal         The Hon C. R. Wright Q.C., (Deputy President)        

Date17 August 2001

PlaceSydney

Decision       The Tribunal decides: 1. That all documents specified in the Certificate under s.34(2) of the Freedom of Information Act 1982 (C'th) given by the Secretary of the Department of Prime Minister and Cabinet on 20 February 2001 are exempt from disclosure to the applicant. 2. That in respect of Document 35 in the Consolidated Schedule of Exempt Documents ("the Schedule") the last 11 lines on the sixth page and the whole of the seventh page are exempt from disclosure to the applicant. 3. That in respect of Document 36 in the Schedule paragraph 3 on page 2 is exempt from disclosure to the applicant. 4. That in respect of Document 7 in the Schedule the balance of the document not already exempted under paragraph 1 of this decision is also exempt from disclosure to the applicant on public interest grounds under s.36 of the Act. 5. That in respect of Document 8 in the Schedule the balance of the document not already exempted under paragraph 1 of this decision is also exempt from disclosure to the applicant on public interest grounds under s.36 of the Act. 6. That in respect of Document 23 in the Schedule the balance of the document not already exempted under paragraph 1 of this decision is also exempt from disclosure to the applicant on public interest grounds under s.36 of the Act. 7. That in respect of Document 26 in the Schedule the balance of the document not already exempted under paragraph 1 of this decision is also exempt from disclosure to the applicant on public interest grounds under s.36 of the Act. 8. That in respect of Document 40 in the Schedule pages 2 to 6 inclusive are not exempt from disclosure to the applicant. 9. That in respect of Document 41 in the Schedule pages 2 to 5 inclusive are not exempt from disclosure to the applicant. 10. That in respect of Document 42 in the Schedule, this document is not exempt from disclosure to the applicant. 11. That in respect of Document 43 in the Schedule, the balance of the document not already exempted under paragraph 1 of this decision is not exempt from disclosure to the applicant. 12. That accordingly access is granted to the applicant to documents or parts of documents not exempt from disclosure mentioned in paragraphs 8, 9, 10 and 11 hereof.

..............................................
  Deputy President 
CATCHWORDS
Freedom of Information – Cabinet decision to site nuclear reactor at Lucas Heights in NSW – exemptions – whether reasonable grounds for conclusive certificate – whether departmental documents exempt from disclosure under s.34(1)(a), s.34(1)(d), s.33(1)(a)(ii), s.33(1)(b), s.36 or s.43(1)(c)(i) of the Freedom of Information Act 1982 (C'th).
Harris v Australian Broadcasting Corporation (1984) 1 FCR 150.
Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123.
Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139.
Re Lianos and Department of Social Security 7 ALD 475 @ 496
Re Eccleston and Department of Family Services (1993) 1 QAR 60 @79
Re Corr and Department of Prime Minister (1994) 35 ALD 141

REASONS FOR DECISION

17 August 2001      The Hon C R Wright Q.C., (Deputy President)  

1. On 25 January 2000 the applicant Council made identical Freedom of Information Act 1982 ("the Act") requests to the Department of Industry, Science and Resources and to the Department of Finance and Administration.   Each request sought:

   "documents, recording information about, consideration of, advice or decisions concerning:

   1.alternative locations to Lucas Heights for the siting of the replacement nuclear reactor.

   2.the comparison between alternative sites and between those sites and Lucas Heights between 1 January 1993 to date."

2. Several documents were disclosed by the relevant Department both before and subsequent to Departmental reviews of the original disclosure decisions made by Departmental officers, but a significant number of documents were claimed to be exempt documents pursuant to sections 33, 34, 36 and 43 of the Act and were kept from the applicant.

3. Being dissatisfied as to this outcome the applicant has now sought a review by the Tribunal pursuant to s.55 et seq. of the Act. A "conclusive" certificate has been issued by the Secretary of the Department of the Prime Minister and Cabinet pursuant to s.34(2) in respect of some of the documents to which access is sought, and consequently it is necessary for the Tribunal to be constituted as provided in s.58B(2). The scheme of the Act is such that in respect of documents covered by a conclusive certificate, the issue for the Tribunal is whether or not reasonable grounds exist for the exemptions claimed by the certificate. If such grounds do exist the Tribunal is not empowered to reconsider for itself whether or not the claimed exemption should be allowed or disallowed.

4. In respect of documents for which exemption is claimed, but no certificate has been issued, the Tribunal is required to reach its own conclusion as to the validity of the claim.

5. In support of the claims maintained by the respondents that reasonable grounds exist for the claims made by the Secretary in the conclusive certificate, affidavits by Stephen Brent Irwin and James Ray Kerwin were read and both deponents were cross-examined by counsel for the applicant.   Mr. Irwin is the General Manager of the Science and Technology Policy Branch, Innovation and Science Division in the Department of Industry, Science and Resources ("DISR") and Mr. Kerwin is the Branch Manager of the Agency Advice Unit, Budget Group within the Department of Finance and Administration ("DOFA").

6. It was conceded by counsel for the applicant that the issue for the Tribunal is whether or not there is a reasonable ground for each claim in the conclusive certificate, not whether or not the Secretary's subjective reasons for making each claim can be sustained (see Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 @ 166). Theoretically this could broaden my inquiry, but having regard to the views which I have formed as a result of (i) having read the conclusive certificate, (ii) having heard from both Mr. Irwin and Mr. Kerwin, and (iii) having required the production of and having read the documents (or, rather, copies thereof) pursuant to s.58E and s.64 of the Act, such a course is unnecessary.

7. The applicant filed and formally read an affidavit by Dr. Garry John Smith, the Principal Environmental Scientist employed by the Sutherland Shire Council. Dr. Smith was not cross-examined. His affidavit was four pages long. However there were 204 pages of annexures. I have not read those documents in detail. Nor does it seem that I was expected to. Apparently these documents were intended to illustrate, if need be, the "public interest" issues raised in paragraph 10 of the Applicant's Statement of Issues. It was conceded by counsel for the respondent that the onus lies upon the respondent to satisfy the Tribunal in respect of any deliberative document for which exemption has been claimed in reliance on s.36 of the Act, and for which no conclusive certificate has been issued, that disclosure of such document would be contrary to the public interest (see also s.61). It follows that unless this onus is discharged any such document must be disclosed.

8. There are a number of documents still in dispute (either in whole or in part) where the respondents have claimed exemption from disclosure under the following sections:

   (a)Section 34(1)(a) Documents submitted to Cabinet.

   (b)Section 34(1)(d) Decisions or deliberations of Cabinet.

   (c)Section 33(1)(a)(ii) International relations.

   (d)Section 33(1)(b) Confidential international communications

   (e)Section 36 Deliberative documents.

   (f)Section 43(1)(c)(i) Adverse effect on business affairs.

Section 34

1. The secretary's conclusive certificate under s.34(2) relates only to documents for which exemption is claimed under s.34(1)(a) and s.34(1)(d). It will be noted that exemptions under s.34(1)(a) do not apply to those parts of Cabinet documents which contain "purely factual material" (s.34(1A)). The Secretary's certificate certifies not only that the relevant documents fall within the exempt classes provided for in s.34(1)(a) and s.34(1)(d), but also that none of the documents or parts in respect of which exemption is claimed contain purely factual material with s.34(1A). The nature of "purely factual material" within the meaning of comparable legislation was referred to in Harris v Australian Broadcasting Corporation (1984) 1 FCR 150, Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123, and Re Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139.

2. As observed in Harris, material which demonstrates "a process of selection, involving opinion, advice or recommendation for the purpose of the deliberative process may be exempt". Having perused the certificate, the documents themselves and affidavits of Messrs Irwin and Kerwin I entertain no doubt that reasonable grounds exist for the exemption claimed by the Secretary's certificate, both in respect of the status attributed to that document under s.34(1)(a) and (d) and the claim that such document does not contain purely factual material which could disqualify it from exemption under s.34(1A). In coming to this conclusion I have borne in mind that the onus of proof lies with the respondents (Re Lordsvale Finance Ltd and Department of Treasury (No. 2) (1986) 12 ALD 321 @ 322. Accordingly all such documents are exempt from disclosure.

3. Counsel for the respondent at the resumed hearing on 15 May pointed out that two of the documents which were apparently intended for inclusion in the certificate under s.34(2) had no been included in fact in the Secretary's certificate. She didn't identify the two documents, but it is fairly plain from the Consolidated Schedule of Exempt Documents which was prepared and marked by the respondents legal advisers at my request that they were DOFA documents Number 35 and 36. It is also noted that not only does the Schedule wrongly claim these documents are included in the conclusive certificate, it also plainly misdescribes that part of Document 35 for which exemption is claimed. It is obvious to me that the claim is intended to relate to that part of the document at pages 6 and 7 which is surrounded with blue lines in the copy documents provided to me.

4. To clearly indicate that part of Document 35 which in my opinion is to be regarded as included in the exemption claim it should be described as "the last 11 lines on the sixth page and the whole of the seventh page". Ms Campbell submits that even though the material is not included in the Secretary's certificate it should nonetheless be considered as exempt under s.34(1)(d). I agree with this submission. Accordingly the issues which could otherwise arise under s.34(1A) need not be considered. So far as Document 36 is concerned, exemption is claimed for paragraph 13 on page 2. I agree with this claim.

5. Mr. Robertson, counsel for the applicants, submitted a two pronged argument that s.34 should be narrowly construed and that the Tribunal should be predisposed to refuse exemption claims unless strictly proved. First he said, the stated objects of the FOI Act (s.3(2)) promote the disclosure of information (Public Service Board v Wright (1986) 160 CLR 145 @ 153-4). In paragraph 7 of his written submissions other cases were also referred to which are capable of supporting this point of view. Second, he said, the High Court has developed the constitutional requirement for freedom of communication (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520). Whilst both of these submissions may give rise to interesting jurisprudential debate in future (although I think the second is far too broadly stated), I see no reason to pursue either line of argument at the present time. The provisions of s.34 are clear enough. So too are the provisions of s.58(1), (4) and (5) as to the role I must play.

6. A shoulder note on page 2 of Document 23 is claimed to be exempt under s.34 notwithstanding the absence of a conclusive certificate. I am quite unable to read the note and no basis has been established for its exemption in my opinion. It must therefore be disclosed to the applicants, subject of course to the general claim for exemption under s.36 which I will come to later.

7. A similar uncertificated claim has been made in respect of material on the fifth, sixth and seventh line of page 4 of Document 26.   On the face of it this excerpt refers to a Cabinet decision and discloses part of its contents.  Consequently it is exempt from disclosure.

8. In 1997 the Commonwealth Government decided to locate and construct a scientific research and radio pharmaceutical production facility at Lucas Heights in the Sydney metropolitan area.   Before this there had been lengthy processes involving public consultation and participation.   The Government's decision was publicly announced.   Steps were taken to initiate an environmental assessment under the Environment Protection (Impact of Proposals) Act 1974.   Mr. Robertson supplied an extensive written submission detailing the history of the reactor project and explaining the extent of public interest and participation in the process (see paragraphs 11 – 21 in particular.)   However I do not accept his submission in paragraph 20 that it is necessary for me to read the material already released to the applicant by the respondents to appreciate "the loss of confidentiality" effected by those disclosures.   I do not accept that such a course is either necessary or relevant to the issues before me.   And as the material referred to was neither produced by the applicant, nor by the respondent at the applicant's request, it is not available to me.    I should also say that I am not disposed to trawl through possibly vast amounts of material on the off chance of finding something to support a party's argument.   If a specific document or part of a document can be used to support a submission, I expect counsel to identify it and make appropriate copies available for my consideration.

9. Before turning to an examination of the claims for exemption made under s.36 which will necessitate a further consideration of public interest issues, I propose to consider the exemptions claimed under s.33(1)(a)(iii) and (1)(b) as well as those under s.43(1)(c)(i).
   Section 33

1. Section 33 deals with documents affecting national security, defence or international relations. It is not claimed that issues of national security or defence may be directly affected by the documents now in question. No conclusive certificate has been given in respect of s.33 documents.

2. The first claim to exemption under s.33(1)(6) is in respect of paragraph 16, 17 and 18 on page 6 and Attachment "E" in Document 7. I am satisfied that paragraph 17 and the relevant parts of 16 and 18 covered by the exemption claim fall within the class of documents exempt from disclosure under s.33(1)(b). I am also similarly satisfied in respect of the passages at the final dot point on page 2 and the first dot point on page 3 of Attachment "E".

3. A further claim for exemption in respect of Attachment "E" is based upon s.33(1)(a)(ii) on the basis that disclosure could reasonably be expected to damage international relations of the Commonwealth. Counsel for the respondent criticised the contents of the Mr. Irwin's affidavit, paragraph 25, submitting that it provided an insufficient basis for any such claim. I agree that additional material would have been of assistance, but to my mind it is self evident from an examination that the material in question has the potential for damage for which the respondent DISR contends. I allow the respondent's claim for exemption in respect of paragraph 9 and paragraph 10 in Attachment "E" to Document 7.
   Section 43

4. Section 43(1)(c)(i) provides exemption from disclosure if it would, or could reasonably be expected to unreasonably affect a person adversely in respect of lawful business or professional affairs. Mr. Irwin's affidavit paragraph 26 deals with this issue in respect of the final sentence in paragraph 8, page 5 of Document 23. Counsel for the applicants submits that for protection to be accorded to this material it must be shown to be confidential, but this is not the yardstick provided in the Act. The test is the reasonable expectation that the relevant information "could reasonably be expected to unreasonably affect etc." (See the comments of Deputy President Hall in Re Lianos and Department of Social Security 7 ALD 475 at p.496). In my opinion the material in question falls within the proscription. The final sentence of paragraph 8 on page 5 of Document 23 is exempt from disclosure.
   Section 36

5. This claim for exemption affects the balance of the material in the subject documents. Section 36 has been invoked as the basis for resisting disclosure of the following:

   (a)Document 7. The claim for exemption under s.36 is made in respect of the whole of this document which is not otherwise exempt under ss.33 and 34.

   (b)Document 8. This claim is made in respect of the whole of the document which is not otherwise exempt under s.34.

   (c)Document 23. This claim is made in respect of the whole of the document which is not otherwise exempt under ss.33 and 34.

   (d)Document 26 – Ditto.

   (e)Document 40.  This claim is made in respect of pages 2 to 6 inclusive.

   (f)Document 41.  This claim is made in respect of pages 2 to 5 inclusive.

   (g)Document 42.   This claim is made in respect of the whole document.

   (h)Document 43. This claim is made in respect of the whole of the document which is not otherwise exempt under s.34.

6. No conclusive certificate has been issued in respect of any of these documents, so it falls for me to determine whether the documents are properly to be regarded as deliberative documents within the meaning of s.36(1)(a) and, if so, whether their disclosure would be contrary to the public interest as required by s.36(1)(b). It was conceded by the respondents that the onus lies upon them to establish that disclosure would be contrary to the public interest.

7. I can say at the outset that each of the documents or part documents referred to above is, in my opinion, a deliberative process document of the kind referred to in s.36(1)(a). Whether or not any of the material contained in those documents can be regarded as "purely factual material" as that phrase is used in s.36(5) need not be considered at this point. The central issue for determination in respect of each document is whether or not the respondent has established that disclosure would be against public interest. This is a difficult test to apply. It is an elusive concept not defined in the Act and the Act gives no guidance as to the factors which should be taken into account in assessing its applicability in particular circumstances. It is even more difficult to apply if it is acknowledged that varying aspects of public interest may well militate both for and against disclosure.

8. The observations of Deputy President McDonald in Re Chapman and the Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139 @ 151-152 are helpful in understanding the changes that have taken place in the concept and application of the public interest test since 1982.

   "Section 36(1)(b) of the FOI Act – public interest

   (24)Prior to the passage of the FOI Act, in the Commonwealth v John Fairfax and Sons Ltd (1980) 32 ALR 485, Mr. Justice Mason (as he then was), in granting an injunction for a threatened breach of the Crimes Act 1914 (Cth), drew a distinction between detriment that a citizen may suffer from disclosure of information relating to his affairs and detriment to the government from publication of material concerning its actions.   In relation to the latter, His Honour said (at 492-3):

   '… 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 criticise 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 sentiments expressed by His Honour have now found legislative effect in s.59A(a) of the New South Wales Freedom of Information Act 1989, but not in the federal FOI Act.

   (25)One of the early attempts to define what is constituted by the public interest, and one often quoted since, is to be found in Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169 where, at 178, the then President of the tribunal (Mr. Justice Davies) listed the considerations as:

   (1)The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

   (2)Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.

   (3)Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

   (4)Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.

   (5)Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.

   (26)The enunciation of the first four principles by Davies J has been criticised by some in subsequent decisions and academic critiques (see the citations at p.41 of the decision in Eccleston's case and the detailed discussion carried out by the Information Commissioner with respect to the so-called "Howard principles"; also the discussion by the Information  Commissioner of Western Australia in Veale and Town of Bassendean (Decision No. D00494, 25 March 1994, unreported), but accepted by others.   In the context of determining whether those principles are still of paramount consideration, what is often not recognised is the paragraph of the decision immediately following the statement of principles, which is in the following terms:

   The FOI Act has been in operation since 1 December 1982. As was said in RE Murtagh and Commissioner of Taxation, above, Re Chandra and Minister for Immigration and Ethnic Affairs, above, and Re Lianos and Secretary, Department of Social Security, the tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act.

   As is evident from the above passage, Davies J did not see the principles as being immutable but rather envisaged a flexible approach, governed by time and experience, being taken.   A similar conclusion as to the significance of the above quoted paragraph was reached by the Queensland Information Commissioner in Eccleston's case (above) at 38, para 106.

   (27)The difficulties associated with giving substance to the otherwise amorphous concept of public interest were highlighted in the Australian Law Reform Commission publication, report No. 70, Administrative Review Council, report No. 40, "Open government: a review of the federal Freedom of Information Act 1982", p 96, in which the following factors were nominated as being of possible relevance in determining the public interest, namely:

   ·     the general public interest in government information being accessible;

   ·     whether the document would disclose the reasons for a decision;

   ·     whether disclosure would contribute to debate on a matter of public interest; and

   ·     whether disclosure would enhance scrutiny of government decision making processes and thereby improve accountability and participation;

   and the following as possibly not being relevant:

   ·     the seniority of the person who is involved in preparing the document or who is the subject of the document;

   ·     that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information;

   ·     that disclosure would cause a loss of confidence in the government; and

   ·     that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

   As will be seen from the above, a number of the principles listed by Davies J in Re Howard stand, as time has passed and experience in the administration of the FOI Act has grown, to be considered differently  than was the case when they were first pronounced – a fact readily recognised by the learned judge at the time the decision was given."

A similar approach to the Howard principles is to be seen in Hamilton v Environment Protection Authority (NSW District Court 5/8/98 Ainslie Wallace J).   

1. A matter which is of interest to the public does not necessarily equate to a matter of public interest.   (Re Eccleston and Department of Family Services (1993) 1 QAR 60 @79).   The relevant interest is the interest of the public as distinct from the interest of an individual or a small group of individuals (Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 @ 480 per Barwick DJ). This is not to say that the interest of a significant section of the public is not a public interest (Sinclair) or that there is not a public interest in the rights of an individual (Re James and Australian National University (1984) 6 ALD 687 @ 701 per Deputy President Hall). The resolution of conflict between two competing aspects of public interest such as the effective and efficient conduct of government business on the one hand, and accountability of government and public participation in government processes on the other, was also usefully discussed in Re Eccleston (supra) at p.87.

2. In his affidavit of 1 March 2001, Mr. Irwin said:

   "15.I refer to the schedule of exempt documents (ST2).   Claims for exemption under section 36(1) FOI Act have been made for parts of documents 7, 8, 23 and 26.  I am aware that subsection 36(1) exempts from disclosure documents which contain matters of advice, opinion, consultation and deliberation made during or for the deliberative processes concerning functions of an agency.   I believe that the term 'deliberative processes' is not confined to the internal considerations of an issue by the department and its officers, other agencies and the Commonwealth.   Consultation with other legal entities and other governments including foreign governments also form part of the deliberative processes of the department.

   16.I have examined the documents and parts of documents for which an exemption claim has been made under section 36.   They comprise a departmental memorandum and draft Cabinet submissions on the replacement and siting of a nuclear reactor for Australia.   Two processes were involved.  Documents 23 and 26 were created in the first process of the Ministers to provide a submission to Cabinet for its consideration.   Following Cabinet's decision  on that matter, on the question of a replacement reactor, documents 7 and 8 were created subsequently to provide a more detailed submission to be put to Cabinet.

   17.I refer to paragraph 6 hereof in which I note that there is continuing controversy about the nuclear reactor and the Lucas Heights operations.  As the briefings and draft Cabinet submissions do not represent the final view of the Minister on the issue I believe it is undesirable that members of the public could use this information as a basis for raising arguments against such a view which is not the final view of the government.

   18.I also believe that the integrity of the departmental process for preparing advice to Ministers and preparation of the material for presentation to Cabinet by Ministers could be undermined if the Department and Ministers were to be judged by reference to material created at a preliminary stage which will or may not fairly and  completely disclose the rationale for the final position reached by Ministers or by Cabinet.   Whilst it is true that a decision has made by Cabinet as to its siting there are still a number of outstanding issues to be resolved.   I refer to paragraph 6 of where I note the continuing public debate and controversy in relation to the operations of the reactor at Lucas Heights, particularly by the residents of the Sutherland Shire and adjacent local government councils.   I also note the Senate Select Committee Inquiry which is proceeding.    I believe that further decisions have yet to be made in relation to operation  of the replacement reactor, mainly the issuance of construction and operating licences by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the disposal of spent fuel.   The issues of replacement of the reactor and its location therefore remain current and there is a considerable level of public controversy surrounding all issues.   The disclosure of Ministerial briefings and early draft Cabinet submissions could, in my opinion, inflame the controversy and the use of potentially misleading or confusing information would not produce a valuable contribution to the public debate given the ongoing controversies.

   19.I believe that, should this information be disclosed, officers providing briefings and suggestions to the Minister in relation to the outstanding issues concerning the operations of the reactor at Lucas Heights will feel that they are working with somebody looking over their shoulder on that issue and the issues in relation to replacement and siting which the Department had considered had been put to rest will reemerge  requiring them to be dealt with all over again.

   20.I acknowledge that there is a public interest in the public obtaining access to information in the possession of the Government is expressed in section 3 FOI Act.   I also acknowledge that there is public interest in the public having access to information which will allow them to make up their own minds as to whether or not a policy or decision of government has been properly reached and that appropriate matters have been taken into account.   I also acknowledge that there is a public interest in the public being able to scrutinise the operations of the Department in preparing material to be considered by the Government in reaching a decision of this nature.

   21.However, there is I believe a stronger public interest in public servants' being able to communicate both directly and freely with responsible Ministers on particular issues and developing proposals to be put to Cabinet.   The lapse of time has not remove or diminished the sensitivity because of the ongoing controversy, debate and concerns being raised by certain parts of the Australian community.

   22.I also consider that there is a strong public interest in the public debate proceeding on the basis of comprehensive correct information.   I do not believe that it can be in the public interest that the debate proceed upon a foundation of potentially misleading and confusing information.

   23.I am aware of the provisions of subsection 36(5) FOI Act which excludes from the exemption in section 36(1), purely factual material.   I have examined the documents and parts of documents for which exemption is claimed and am satisfied that none of the material is purely factual.   Its disclosure would reveal deliberative processes or, if factual, it is inextricably intertwined with information concerning deliberative processes.   The documents concern proposals rather than conclusions and in my opinion a fair reading of them leads one to conclude that there is no purely factual material contained therein.   I have also considered the provisions of section 36(6) FOI Act and am of the opinion that none of the material in those documents or parts of documents is a report or record of the kind referred to in that subsection.

   24.Documents 26 of 4 December 1996 and 23 of 14 March 1997 relate to a proposal for a replacement Nuclear Reactor for Australia being drafts of a final submission to Cabinet (JH97/0161).  Document 8 of about 14 April 1997 and document 7 of 19 May 1997 led to Document 19 of 30 July 1997 which is near to the final Cabinet Submission (JH97/0209) in relation to the siting of the nuclear reactor.  Document 7 is a later draft of the Cabinet submission JH97/0209 which was seen by the Minister whose annotations appear on the document.   It is close to a final draft and led to the final draft document 19."

3. Mr. Kerwin in his affidavit of 21 February 2001 deposes as follows:

   "Section 36
   Document 40

   33.Document 40 consists of a facsimile cover sheet and enclosure dated 11 April 1997 sent by Mr. Darren Bloomfield, Program and Policy Analysis Branch, of the Department of Finance to Mr. Garth Hogg of the Department of Industry, Science and Tourism.   I am informed by Greg Rynehart and believe that document 40 has been reviewed in the course of these proceedings and that the Respondent makes no exemption claim for the cover sheet to the document.   The remainder of document 40 refers to options which were being considered by the Commonwealth Government in relation to siting options for new nuclear facilities and sets out preliminary comments regarding costing estimates.   It also contains a number of  recommendations which are not final.

   Document 41

   34.Document 41 consists of a facsimile cover sheet and enclosure dated 15 April 1997 sent by Darren Bloomfield, Program and Policy Analysis Branch, of the Department of Finance to Mr. Bob Summerville and Garth Hogg of the Department of Industry, Science and Tourism.  I am informed by Greg Rynehart and believe that document 41 has been reviewed in the course of these proceedings and that the Respondent  makes no exemption claim for the cover sheet to the document.   The remainder of document 41 refers to options which were being considered by the Commonwealth Government in relation to siting options for new nuclear facilities and sets out preliminary comments regarding costing estimates.   It also contains a number of recommendations which are not final.

   Document 42

   35.Document 42 consists of four electronic mail messages between DOFA officers which shows the development of proposed draft Cabinet coordination comments by the Department of Finance.

   Document 43

   36.As described in paragraph 27 above, document 43 is an early draft of a document which was later considered by Cabinet.   Those parts of document 43 noted on the attached schedule under the heading 'Section 36 – deliberative process document' consist of draft comments relating to options which were being considered by the Commonwealth Government in relation to siting options for new nuclear facilities.   These options were not presented in the final submission to Cabinet.

   Reasons for section 36 claim.

   37.In relation to documents 40, 41, 42 and 43 I recognise that there is a public interest in the public having access to government-held documents to enable members of the public to scrutinise issues of public concern and to make known to individuals and community groups facts and arguments which are relevant to decisions made.   However, I also consider that there is a public interest in safeguarding the Respondent's decision-making processes from the disclosure of incomplete information, which is sourced from preliminary rather than final opinions, and which would mislead the general public.   In addition, I consider that there is a strong public interest in ensuring the free flow of advice, opinions and recommendation within government on matters of important national interest before final decisions have been made.  As the information  described above is not final, I consider that documents 40, 41 and 42 (in whole) and 43 (in part) are exempt from disclosure under section 36 of the FOI Act."

4. In response to these matters counsel for the applicant made detailed written submissions which he elaborated with oral argument during his final address.   Counsel for the applicant contended that neither Mr Kerwin nor Mr Irwin had personal knowledge of the circumstances in which advice was given to Cabinet and it was suggested that their evidence could not be used to assess potential damage to the policy making process by disclosure.   I do not accept this submission; their deposition as to facts and expressions of opinion, whilst not conclusive provide a useful source of relevant information and I rely on it accordingly.

5. However, for reasons which appear hereafter, I do not accept uncritically the proposition that bureaucratic advice to Ministers should be protected from disclosure because it may tend to circumscribe the free expression of opinion if public servants felt that their opinions may be opened up to public scrutiny at a later date (cf the  dictum  of Mason J in Commonwealth v John Fairfax & Sons Ltd  (1980) 147 CLR 39 @ 52 and the views expressed by the Information Commissioner in Re Eccleston (supra) @ 118-119).

6. Counsel for the respondents said this in paragraph 35 – 38 inclusive of her written submissions:

   "35.  Although the public interest test in section 36(1) is an open one, generally it is concerned with protection against prejudice to the ordinary business of government and the factors which have been found to be contrary to disclosure have this underlying rationale.   In Harris it is expressed as weighing the public interest in citizens' being informed of the processes of government and its agencies on the one hand against the public interest in the proper workings of government and its agencies on the other hand.  
   Relevant here are the following factors:-

• If disclosure of non-Cabinet documents would breach the necessary confidentiality applying to deliberations and processes of Cabinet, that would be contrary to the public interest (Porter).   It would be contrary to the public interest to release nearly identical drafts (Reith) or earlier drafts (Corr).

• Disclosure of communications between senior officials and the Minister would be contrary to public interest in view of the on-going nature of the dispute and the fact that the strategies developed by the government could come into play in the future (Hyland).

• Disclosure of a document recording the substance of a discussion that occurred at a high level involving sensitive issues would be contrary to the public interest because officers may feel some reluctance in the future to record issues that are sensitive in the sense that the matters recorded are neither final nor conclusive not necessarily reflective of the nature and content of the final decision that was or might be made (McGarvin).

• Disclosure could lead to confusion and unnecessary debate resulting from disclosure of possibilities considered and where it would not fairly disclose the reasons for decisions subsequently taken (Chapman).

• Disclosure which would confuse the public or create potential public misunderstanding and lead to unnecessary debate would be contrary to the public interest (Cleary).

• There is public interest in maintaining processes of effective policy development and in avoiding uninformed debate (Corr).

• Where disclosure would create or fan ill-formed or captious public or political criticism (Conway v Rimmer); and

• The clear public interest in civil servants being able to communicate in confidence, information directly to their responsible Minister on issues which are considered to be sensitive.   Even if some years have elapsed it may still be considered contrary to the public interest that such correspondence be liable to be released (McGarvin).

  36.    The fact that the document may contain information which is of curiosity value to the public, or a substantial section of the public, does not necessarily mean that disclosure of the document is in the public interest.   On the other hand, if the giving of access to the specific documents would contribute valuable material to public debate on an issue, doing so will be in the public interest.  However, disclosure without a countervailing public benefit which would renew the focus of media attention on the siting of the reactor, a decision which has already been taken by Cabinet and is being implemented, would entail a serious risk of diverting the staff of the Respondent DISR and of ANSTO for no useful purpose at this stage from the performance of their functions arising from the decisions of Cabinet to replace the existing reactor at Lucas Heights (Fewster).   If there is no guarantee that all the information will come to the attention of the public or will not add anything to what is publicly known, that is not in the public interest (HWT).

  37.In addition to disclosure would create or fan ill-formed or captious public or political criticism.  "The business of government is difficult enough as it is and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind" (Conway v Rimmer; Sankey v Whitlam).

  38.Further public interest factors against disclosure are:

• Disclosure would interfere in the proper functioning of  government (Lianos).  It would be contrary to the public interest to disclose material passing between Ministers and the Department in the formulation of a Cabinet submission (Reith).

• Disclosure would disclose views in draft documents which were superseded in later and final versions.   There is a need to guard against the potential for a mistaken belief that the documents contain final views (Fallon).

• Disclosure would add little if anything to public knowledge of a matter which has had considerable scrutiny through a public process, there is little if any, public interest in its disclosure."

1. As I have already suggested in discussing the Howard principles, I think that several of the general propositions put forward in page 35 of Ms Campbell's submission are difficult to sustain as matters of principle and others cannot be sustained in the present case because of a lack of evidence supporting the proposition advanced.    By way of explanation I should concisely state my views on each dot point made in paragraph 35.

2. I agree with the principle advanced in dot points 1, 4, 5, 6, 7.

3. There is no evidence in the present  case which would persuade me that the principles stated in dot points 4, 5, 6 or 7 may be involved as a barrier to disclosure.

4. Dot points 2 and 3 are highly debatable and I am not persuaded that the principle stated is valid in the absence of special circumstances.

5. I have difficulty with the notion of "sensitivity" in dot point 8.   A controversial subject is not necessarily "sensitive".   I would not necessarily consider the Lucas Heights reactor siting question to be sensitive, although it is obviously controversial.

6. Similarly I have difficulty with each of the 3 dot points in paragraph 38.   I do not accept that there is any basis for concluding that disclosure would interfere with the proper functioning of government.   As to the second dot point, I am unable to act as a censor as to the use the applicant may make of any relevant document.   If a false claim were to be made that a draft expressed final views this could be readily refuted.   Similarly (dot point 3) although disclosure may add very little to public knowledge and consequently there may be little public interest in the relevant disclosure, this is not the test.    The respondent must establish that disclosure would be contrary to the public interest.   This should be borne in mind when considering Ms Campbell's references to the evidence in her supplementary written submission dealing with evidence of Messrs Kerwin and Irwin.

7. Central to one of the respondents' principal submissions in opposing disclosure is the insistence that draft Cabinet submissions should be accorded the same practical immunity from exposure as Cabinet documents which are exempt by operation of s.34. It may be argued that there is a basic flaw in this proposition. There is no public interest consideration declared by the Act to be applicable to s.34 documents. Cabinet documents are exempt from disclosure simply because they are Cabinet documents. They either fall within s.34(1)(a) - (d), and are thus exempt (except in respect of "purely factual material") or they do not. Under s.36 the public interest issue is a separate and cumulative matter to be considered. If a document does not fall within s.34 it can only be exempt under s.36, and parliament has made it quite clear that public interest is a key factor in such cases. It has been conceded by the respondents that none of those documents for which s.36 has been invoked to prevent disclosure are saved by s.34. It is also noteworthy that neither of the relevant Ministers has chosen, whether personally or by delegate, to file a conclusive certificate under s.36(3). The fact that some of these documents may have been intended by their authors to form the basis of communications to Cabinet does not necessarily create an exemption from disclosure (cf Re Corr and Department of Prime Minister and Cabinet (1994) 35 ALD 141).

1. Furthermore the clear trend and preponderance of modern thought is away from those Howard principles which act as a shield against disclosure based upon the status and supposed discomfiture of public servants and I find the proposition that an early draft of a submission proposed for Cabinet, but not actually submitted, should be exempt from disclosure because it may mislead and provoke captious public debate, is one which is difficult to justify.  

2. The further proposition, that is, that a draft to which access is sought is virtually identical to the document actually submitted to Cabinet and thus should not be disclosed is much more logical in my view. A Cabinet submission is protected from disclosure under s.34 – to expose it by making its fabric available for scrutiny would be to render s.34 practically nugatory. There will often be a thin line between the two positions, but unless it can be clearly demonstrated that the similarities between the challenged draft and the document which actually went to Cabinet are so significant as to lead to the conclusion that to expose the draft would render s.34 virtually inoperable, it seems to me that the draft will not be exempt unless its exposure is found to be contrary to public interest on other grounds.

3. Whilst I do not find paragraphs 18 and 19 of Mr Irwin's affidavit persuasive, on the basis of the matters alleged  in paragraph 24 thereof (which are confirmed upon my reading of the relevant material), it is apparent that documents 7, 8, 23 and 26 have formed  the substance of the final submission which went forward to Cabinet.

4. As Deputy President McMahon said in Corrs case (supra) @ 150:

   "All of these documents were intended to form the basis of communications to cabinet.  Some of them in fact probably were communicated to cabinet.  To reveal earlier drafts would be to reveal the final communication.  To reveal the final communication would breach cabinet confidentiality.   Having regard to the importance which the High Court attaches to that convention, it would be reasonable to certify that disclosure would be contrary to the public interest in those circumstances."

5. I respectfully agree with this opinion and, subject to the "purely factual material" question, which I discuss in the following paragraphs, have concluded that the balance of documents 7, 8, 23 and 26 not already exempted on other grounds, should now be exempted from disclosure under s.36 on the basis that such disclosure would be contrary to the public interest.

6. It is noteworthy that s.36(5) is couched in significantly different terms from s.34(1A) and s.35(1A), both of which subsections make it plain that the exemptions provided in respect of Cabinet and Executive Council documents do not apply in respect of purely factual material contained in any such document. Section 36(5) however says:

   "This section does not apply to a document by reason only of purely factual material contained in the document."

7. Two comments are appropriate. First, it would be difficult to conceive of a situation in which the existence of purely factual material would provide the reason for granting exemption under s.36(5), yet this is what the subsection predicates as the potential justification for acknowledgment of the claimed exemption. Second, the subsection speaks only of "a document", unlike s.34(1A) and 35(1A) which makes it plain that protection from disclosure applies only to those parts of a relevant document which do not contain purely factual material. Thus purely factual material in a s.34 or s.35 document must be disclosed. Section 36(5) discloses no such imperative in respect of deliberative material documents.

8. Paragraph 23 of Mr. Irwin's affidavit refers to the question whether or not the relevant material contains purely factual material, and Ms Campbell's submission simply repeats the proposition that purely factual material is not contained in the section 36 documents without addressing the issues which I have just identified. I think it is arguable that unless purely factual material is relied on to maintain the status of a deliberative document of the type identified in s.36(1), the factual nature of that material is irrelevant for other purposes under s.36. Alternatively it could be contended that s.36(5) does not render purely factual material contained in a s.36 document subject to disclosure provided the document as a whole meets the criteria for exemption contained in s.36(1)(a) and (b).

9. Nonetheless I will approach the argument addressed on this question on the basis of what appears to be counsel's underlying assumption, and what appears to be simple common sense in light of the general structure and purpose of the Act, viz. that any purely factual material contained within a s.36 document should be disclosed to an applicant. I have considered each of the relevant documents from this viewpoint, and, having done so, I must record that I agree with Mr Irwin's assessment that no document contains "purely factual material" in the sense in which that phrase has been interpreted in the decided cases. Accordingly, the exemption claimed in respect of documents 7, 8, 23 and 26 is upheld.

10. Turning now to the DOFA documents for which s.36 exemption is claimed, I am not persuaded by paragraphs 33 to 37 of Mr. Kerwin's affidavit that documents 40, 41, 42 and 43 should be regarded as exempt from disclosure. They do not appear to me to fall within the same category as documents 7, 8, 23 and 26. I do not regard their disclosure as being contrary to the public interest.

11. Of significance to me are the following considerations:

    (a)The siting decision in respect of the reactor was taken by Cabinet in 1997.

    (b)That decision was announced publicly and was widely debated.  That the applicant may have had an opportunity to participate in that debate on an earlier occasion is irrelevant.

    (c)There was and is a clear public interest in health and environmental issues pertaining to that decision.

    (d)The fact that there is continuing public controversy as to the siting decision increases rather than decreases the public interest in public access to information relating to that decision.   Reopening a debate may not necessarily be in the public interest, but it is difficult to see how it could be contrary to public interest.

    (e)Any such debate cannot be characterised as premature or unnecessary.   The controversy already exists.  Disclosure will scarcely "reignite" it.

    (f)There is no substantial evidence to suggest that departmental officers will be intimidated or embarrassed by disclosure of the relevant material.   I regard the "looking over the shoulder" argument as specious.

    (g)There is no evidence that the relevant material contained inaccurate, incorrect or incomplete or misleading information.

12. In my opinion it has not been established that disclosure of the relevant deliberative material mentioned in Mr Kerwin's affidavit would be contrary to the public interest within the meaning of s.36(1)(b) of the Act, and consequently the documents in question are not exempt from disclosure to the applicant who must be given access accordingly.

13. Section 66 of the Act confers jurisdiction upon the Tribunal to make recommendations to the Attorney-General in respect of an applicant who is successful or substantially successful on an application to review. There are both quantitative and qualitative dimensions to be considered in the exercise of this discretion and s.66(2) requires the Tribunal to consider four specific factors (Pfizer Pty Ltd v Department of Health (1994) 36 ALD 498).

14. In my opinion the applicant was unsuccessful on the claim against DISR, but was substantially successful upon the claim by DOFA even though failing on a number of important issues.   There is no reason to suppose that payment of its own costs will cause financial hardship to the applicant.  (I pause to note that in ordinary civil litigation such a consideration is virtually irrelevant).   Whether the decision in this case will be of benefit to the general public remains to be seen.   I cannot venture a sensible opinion on this.   It seems unlikely that my decision in this matter will be of commercial benefit to the applicant and, finally I record that in my opinion the decision which I differed from in reaching my decision in the DOFA case was not unreasonable.   On balance I think it just that the applicant should receive 20% of its reasonable costs of the combined proceedings (excluding the costs associated with the preparation and production of the annexures to Dr. Smith's affidavit), and I accordingly recommend to the Attorney-General  that such costs be paid by the Commonwealth.

    I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of

    Signed:         ....................K.L. Miller..................................
      Personal Assistant

    Date/s of Hearing  28 February 2001, 15 May 2001
    Date of Decision  17 August 2001
    Counsel for the Applicant         Mr Robertson
    Solicitor for the Applicant           Wolf Associates
    Counsel for the Respondent      Ms Madeline Campbell
    Solicitor for the Respondent    Australian Government Solicitor