Walker Group Holdings Pty Ltd and Australian Conservation Foundation Incorporated (Freedom of information)
[2023] AATA 2307
•1 August 2023
Walker Group Holdings Pty Ltd and Australian Conservation Foundation Incorporated (Freedom of information) [2023] AATA 2307 (1 August 2023)
ReviewNumber: 2020/4153; 2020/4155
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/4153 & 2020/4155
Re:Walker Group Holdings Pty Ltd
APPLICANT
AndSecretary, Department of Climate Change, Energy, the Environment and Water
RESPONDENT
AndAustralian Conservation Foundation Incorporated
OTHER PARTY
DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:1 August 2023
Place:Sydney
The reviewable decisions are affirmed.
................................[SGD]........................................
Deputy President B W Rayment OAM KC
CATCHWORDS
FREEDOM OF INFORMATION – whether documents are exempt or conditionally exempt from disclosure under ss 47 and 47G of the Freedom of Information Act 1982 (Cth) – reviewable decisions affirmed
LEGISLATION
Economic Development Act 2012 (Qld)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Mangan and The Treasury [2005] AATA 898
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines (combined February 2022)
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
1 August 2023
Under the Freedom of Information Act 1982, (the Act or the FOI Act), the Australian Conservation Foundation Incorporated (the ACF) sought access from the Department of Climate Change, Energy, the Environment and Water (the Department) to certain documents in the possession of the Department. Under s 27 of the Act, the Department consulted the applicant, Walker Group Holdings Pty Ltd (Walker), as a person whose business affairs were involved in documents identified by the Department as falling within the scope of the request for access of the ACF in respect of which it appeared to the Department that Walker might reasonably wish to make a contention that such documents were exempt under s 47 of the Act or conditionally exempt under s 47G of the Act, and that it was, on balance, contrary to the public interest for the purposes of s 11A(5) of the Act to grant access to the documents.
During the consultation process the applicant did make all of those contentions, and, upon the Department nevertheless deciding to grant access to the documents, Walker sought review of the decision made by the Office of the Australian Information Commissioner. The Information Commissioner decided under s 54W of the Act that the interests of the administration of the Act made it desirable for the Tribunal to consider the access grant decision and Walker brought the matter to the Tribunal.
The ACF was joined to the hearing of the application for review, and by its General Counsel Mr Adam Beeson appeared on its behalf before me. Mr Beeson has not yet seen any of the documents and the parties put submissions in open hearing without then disclosing the contents of any of the documents in question. Mr Beeson’s submissions were necessarily cast at a general level. He generally adopted the same position as the respondent, and the ACF did not challenge any of the decisions made by the respondent, including a number of redactions from the documents in dispute which the respondent made.
Ms Kristina Stern SC appeared for Walker with Mr Jonathan Burnett of counsel, and Ms Chantal Tipene, a partner of Sparke Helmore Lawyers, appeared for the Secretary of the Department.
Two reviews were heard together. In proceeding 2020/4153, three documents 1, 1b and 1c were in dispute. In proceeding 2020/4155, four documents were in dispute, being documents 4, 26, 44a and 83.
All the documents relate to the Toondah Harbour project in the Stradbroke Island region which was designated a Priority Development Area by regulation under the Economic Development Act 2012 (Qld) at the request of the Redland City Council (the RCC). Walker was selected as the preferred developer for the project, which has gone through several iterations and is the subject of an environmental impact assessment being considered by the Department and its Minister.
Seven documents are in issue in the two separate reviews commenced by Walker. Walker asserts that each of the seven documents are exempt under s 47(2) of the Act, or in the alternative, conditionally exempt under s 47G(1)(a) and/or (b).
Section 47(1) and (2) provide as follows:
47 Documents disclosing trade secrets or commercially valuable information
1A document is an exempt document if its disclosure under this Act would disclose:
(a)trade secrets; or
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
2Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a)by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b)by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c)by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
Section 47G(1) provides as follows:
47G Public interest conditional exemptions—business
1A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a)would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b)could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
The applicant bears an onus to establish that a decision refusing to give access to each document is justified, under s 61(2) of the Act.
Section 47 of the FOI Act
The section 47 claim should first be addressed, because it is an unconditional exemption. No trade secret was suggested by Walker for any of the documents.
The case made by Walker is particularised in its Statement of Facts, Issues and Contentions (SFIC) as follows at paragraph 51:
51The Project is a complex and commercially sensitive development being undertaken pursuant to the Development Agreement, the terms of which are confidential. Documents 1, 1b and 1c contain information relating to the Project that is not generally available and which relates to Walker’s ongoing commercial dealings with MEDQ and RCC in respect of the Project.
That paragraph amongst others is repeated for the four documents in issue in 2020/4155: see paragraph 64 of Walker’s SFIC.
Relevant FOI guidelines are as follows:
Information having a commercial value
5.204 To be exempt under s 47(1)(b) a document must satisfy two criteria:
• the document must contain information that has a commercial value either to an agency or to another person or body, and
• the commercial value of the information would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
5.205It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding in a particular case whether information has commercial value:
• whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom it relates — for example, if it lowers the cost of production or allows access to markets not available to competitors
• whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that information
• whether the information is still current or out of date (out of date information may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or commercial activity — reflected, perhaps, in a lower share price.
5.206 The time and money invested in generating information will not necessarily mean that it has commercial value. Information that is costly to produce will not necessarily have intrinsic commercial value.
5.207 The second requirement of s 47(1)(b) — that it could reasonably be expected that disclosure of the information would destroy or diminish its value — must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.
I have examined all the seven documents in issue in the two proceedings. The evidence in the review refers to the fact that public disclosure about a number of matters referred to in the documents has already occurred. See, for example the unredacted parts of the affidavit of Mr Saba at paragraphs 10, 11, 12, 13, 20, 23, 24, 31, 32, 33, 34, 46, 47 and 48.
If paragraph 51 of the applicant’s SFIC quoted above is intended to relate particularly to such information within the documents as relates to dealings between Walker and the Minister for Economic Development Queensland (the MEDQ) and the RCC, while it is true that some of the documents refer to dealings which Walker has had in the past with the MEDQ and RCC, it seems to me that the information in the documents about those dealings is not shown to have commercial value to Walker because they are matters of history which seem all to be in the public domain.
In any event, none of the evidence before the Tribunal satisfies me that the commercial value of any information contained in the documents, would or could reasonably be expected to be destroyed or diminished if the documents were disclosed. That is, an essential element to be established in order for s 47 to be engaged is not shown to be present, and that is so, whether or not the applicant’s case is intended to be about references to dealings with the MEDQ and RCC.
One other thing which is not clear to me about the applicant’s SFIC is whether the matters relied upon under s 47G(1) of the Act are also relied upon by the applicant under s 47. In case that is intended to be put forward by the applicant, as may be suggested by paragraphs 50 and 51 of the affidavit of Mr Saba, I have dealt with the case made under s 47G from the point of view of s 47 at paragraphs 42 and 48 below.
I conclude that none of the seven documents in issue in proceeding number is exempt under s 47 of the Act.
The words “would, or could reasonably be expected to …” appear both in s 47 and s 47G, as well as elsewhere in the Act. They are words of ordinary English and were discussed in a joint judgment of Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190, and that judgment was later the subject of comment by Hayne J in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 445-446 ([61]-[63]).
Section 47G(1)(a)
The FOI guidelines relating to this provision include the following:
Elements of the exemption
6.184 The operation of the business information exemption depends on the effect of disclosure rather than the precise nature of the information itself. Nevertheless, the information in question must have some relevance to a person in respect of his or her business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking
(s 47G(1)(a)).
…
Could reasonably be expected
6.186 This term is explained in Part 5. As in other applications, it refers to an expectation that is based on reason. Mere assertion or speculative possibility is not enough.
Unreasonable adverse effect of disclosure
6.187 The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a); but this does not amount to the public interest test of s 11A(5) which follows later in the decision process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance. Where disclosure is not unreasonable, the decision maker will need to apply the public interest test in s 11A(5). This is inherent in the structure of the business information exemption.
6.188 The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business’ activities pose a threat to public safety, damage the natural environment; or that a service provider has made false claims for government money may have a substantial adverse effect on that business but may be reasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require a weighing of a public interest against a private interest, preserving the profitability of a business, but at this stage it bears only on the threshold question of whether the disclosure would be unreasonable.
6.189 The AAT has said, for example, that there is a strong public interest in knowing whether public money was accounted for at the appropriate time and in the manner required; and in ensuring that public programmes are properly administered.
6.190 The AAT has distinguished between ‘truly government documents’ and other business information collected under statutory authority. The first category includes documents that have been created by government or that form part of a flow of correspondence and other documents between the government and business. The AAT concluded that such documents inclined more to arguments favouring scrutiny of government activities when considering whether disclosure would be unreasonable. By implication, the exemption is more likely to protect documents obtained from third party businesses.
6.191 Where disclosure would result in the release of facts already in the public domain, that disclosure would not amount to an unreasonable adverse effect on business affairs.
Document 1
Walker put stress in argument on a matter alleged in paragraph 55 of its SFIC concerning document 1. Walker says:
55Further, the information contained in Document 1 contains statements which are false, misleading or inaccurate. In circumstances where those false, misleading or inaccurate statements are contained in a meeting brief to the Minister from a Senior Officer of the Department, Walker contends that the disclosure of false, misleading or inaccurate statements could well have some adverse effect on Walker’s commercial affairs by wrongly suggesting that Walker’s proposed development has certain negative characteristics. Such effect will manifestly be unreasonable given that it is predicated upon inaccurate, false or misleading information. There can be no possible public interest supporting such disclosure.
This matter was argued by reference to a letter from Clayton Utz to the Information Commissioner dated 7 February 2020, particularly redacted paragraphs 6 and 8.
Document 1 is a briefing note to the then Minister of the Department and the author is the Department. It was prepared for a meeting scheduled to occur in September 2019.
Paragraph 6(a)-(e) of the Clayton Utz letter support the submissions made in those sub-paragraphs with other facts set out in those sub-paragraphs. Each of those other facts was proved by the affidavit of Ms Heloise Woodside, and those facts were not put in issue by the respondent.
Paragraphs 6(f) and (g) fall into a different category.
It will be convenient to deal with the submissions made in paragraphs 6(a)-(g) of the Clayton Utz letter in turn.
Paragraph 6(a)
The particulars refer to other approved developments said to make the sentence in question inaccurate and misleading.
Redacted paragraph 8 in the Clayton Utz letter seeks to bring this, and other sub-paragraphs of paragraph 6 within s 47G(1)(a). The reference to “any person reading it” seems to have in mind potential objectors to Walker’s propose development. Mr Saba’s affidavit makes it plain that the comments from the public are required to be sent by Walker to the Minister: paragraph 48.
The comments from the public will not be considered by the Minister without examination. Suppose that the statement identified in paragraph 6(a) is adopted by an objector. Walker will inevitably repeat to the Minister the matters set out in the letter from Clayton Utz, and of the contents of the affidavit of Ms Woodside. In those circumstances, one would not expect the disclosure of document 1 unreasonably to affect Walker adversely, because it has the means to correct the statement itself, as the evidence in this case shows.
Walker points out that since the statement comes from the Department, it carries an aura of authenticity. Thus, objectors to the application of Walker may be likely to rely upon it in their objections, so the argument suggests the case made by Walker is that the objectors may be misled, presumably unless they investigate the matter for themselves. A well-informed or experienced objector may well investigate the matter for himself or herself. Walker may choose to inform likely objectors of the facts which have been specified in the Clayton Utz letter as particulars of the assertions that statements are false, inaccurate or misleading.
The minute from the Department to a former Minister may not be important to the Minister, and it seems likely that if the briefing minute is brought to the attention of the Minister by an objector or by the Department, the Minister also would have much more information brought to his or her attention as well, by objectors, by the Department and by Walker itself.
The evidence before the Tribunal shows that Walker itself is already equipped to draw attention to each of the matters particularised in the Clayton Utz letter and which Walker relies upon to seek to falsify or challenge the statements in question. If one assumes that the particulars make statements in document 1 inaccurate or misleading, Walker is now ready to expose the statements as inaccurate or misleading, with particulars. It does not seem to me to be more likely than not that the disclosure of document 1 containing the first statement would, or could reasonably be expected to, affect Walker adversely. Therefore I am not satisfied that that the relevant part of document 1 is conditionally exempt under
s 47G(1)(a) of the Act. The same reasoning affects any other part of document 1 which Walker says is inaccurate or misleading.
The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) has a provision in s 131AA for the designated proponent (here, Walker) to make comments on a proposed decision of the Minister before the decision is made and if a departmental recommendation is made based upon any statement which appears in document 1 or to the same effect, Walker will have a statutory right to make comment on the recommendation.
Paragraph 6(b)
This statement, being the second sentence under the same bullet point has a qualification beginning with the words “where they would affect” which appears to be important. That seems to explain the comment of Clayton Utz which begins with the words “To the extent”. The comment takes no account of the qualification mentioned. The particulars may not, for this reason, suggest inaccuracy of the statement in question. Walker can in any event rely on the particulars mentioned in the letter of Clayton Utz by way of comment to the Minister, and adverse effect from any inaccuracy neither would nor could reasonably be expected.
Paragraph 6(c)
It is doubtful whether the statement goes to a matter of possible significance in deciding whether or not to grant approval to Walker. In any event, as noted above, Walker itself can assert what it says are the accurate facts, and I am not satisfied that the statement, if disclosed, would or could reasonably be expected to affect Walker adversely.
Paragraph 6(d)
This statement does not appear to me to be adverse to Walker in any way. Walker may, if it wishes, draw the Minister and the Department’s attention to the true facts about this matter, as particularised in the letter, and the matter will be clearer.
Paragraph 6(e )
This deals with a matter of historical detail and the question whether it is misleading is quite doubtful. Again any inaccuracy is simply demonstrated by Walker itself and if it matters, it can be quickly cleared up by Walker itself.
Paragraph 6(f)
I am not satisfied that this general statement is such as would or could reasonably be expected adversely to affect Walker in respect of its lawful business affairs or in any other way, even if it is false. Again and in any event, Walker may refer to what it says is an inconsistent statement, if it wishes.
Paragraph 6(g)
Any difference between the statement and the Department’s website could be relied upon by Walker itself in order to seek to rebut the statement, if it is relied upon by an objector. I am not satisfied that disclosure of document 1 would disclose information concerning Walker’s business which would or could reasonably be expected to affect Walker adversely.
I reject that the terms of s 47G(1)(a) are made out by what is described in the Clayton Utz letter as false, inaccurate or misleading statements in document 1.
The comments made above about paragraph 6 of the letter from Clayton Utz also show that disclosure of document 1, even though it contains the statements mentioned in paragraph 6, would not or could not reasonably be expected to destroy or diminish the commercial value of the information described in those statements.
Apart from the matters already mentioned, Walker relies upon s 47G(1)(a) to suggest that, as paragraph 54 of its SFIC alleges:
54The information contained in Documents 1, 1b and 1c relates to the potential environmental impact of the Project, including in relation to earlier proposals for the project and views that were reached in relation thereto. Such disclosure would unreasonably affect Walker’s future business dealings and its lawful business because such disclosure would occur:
(a)in an isolated manner and without information relating to the context for the information;
(b)in circumstances where the environmental approval process (including under the EPBC Act) contains a mandated public disclosure regime in which complete information relating to the Project, including relevant context, is made available to the public for the purpose of public information and consultation and in respect of which detailed documentation responding to mandated terms of reference is required to be prepared; and
(c)in circumstances in which that statutory procedure for public information and consultation could be undermined by the isolated disclosure of pieces of information, including opinions, without any indication of whether or not the information has been superseded, or is accurate or complete, or other matters going to the context in which the information should be understood.
Paragraph 54 asserts that the release of documents 1, 1b and 1c would “unreasonably affect” Walker’s lawful business affairs. That is not what s 47G(1)(a) refers to. The section requires an adverse effect.
Although paragraph 54 is part of the applicant’s SFIC which I was told that Walker relied upon, it was not highlighted in the oral argument.
The paragraph seems to proceed on the basis that if documents are released under the Freedom of Information Act 1982, they become part of the “environmental approval process” referred to in particular (b) and their release without context, and without one knowing whether the information is superseded, or is accurate or complete somehow produces an unreasonable affect without more. The Act is not in my opinion to be construed in that way. No warranty is given that a document released will be other than what it purports to be, and none of the matters of complaint mentioned in paragraph 54 of Walker’s SFIC seem to me to be reasons why the seven documents should not be released under the FOI Act. The objects of the EPBC Act are distinct from those of the FOI Act and in my opinion, paragraph 54 asserts matter which, even if correct, would not justify a refusal to make the documents available.
On the contrary, in my opinion, the applicant has the onus of showing that release of the documents would or could reasonably be expected to unreasonably affect the applicant adversely in respect of its lawful business affairs and I have seen no evidence to justify that conclusion.
I reject the submission made in paragraph 54 of the applicant’s SFIC, both as to the three documents 1, 1b and 1c, and as to the other four of the seven documents in issue. I understand paragraph 54 to relate to the exemption in s 47G(1)(a) but if I am wrong about that I reject it for the same reasons as an argument for exemption under s 47.
Sections 47G(1)(b)
All seven documents in issue are said to be exempt under this provision of the Act.
The FOI guidelines include paragraphs 6.197-6.201:
Prejudice future supply of information
6.197 A document that discloses the kind of information described in [6.180] above will be conditionally exempt if the disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency (s 47G(1)(b)).
6.198 This limb of the conditional exemption comprises two parts:
• a reasonable expectation of a reduction in the quantity or quality of business affairs information to the government
• the reduction will prejudice the operations of the agency.
6.199There must be a reasonable likelihood that disclosure would result in a reduction in both the quantity and quality of business information flowing to the government. In some cases, disclosing the identity of the person providing the business information may be sufficient to prejudice the future supply of information. Disclosure of the person’s identity may also be conditionally exempt under s 47F (personal privacy). In these cases, consideration should be given to whether the information may be disclosed without also disclosing the identity of the person supplying the information.
6.200 Where the business information in question can be obtained compulsorily, or is required for some benefit or grant, no claim of prejudice can be made. No prejudice will occur if the information in issue is routine or administrative (that is, generated as a matter of practice).
6.201 The agency will usually be best placed to identify, and be concerned about the circumstances where the disclosure of documents might reasonably be expected to prejudice the future supply of information to it.
The respondent is described in paragraph 6.201 as the person usually best placed to identify and be concerned where the disclosure of documents might reasonably be expected to prejudice the future supply of information to it. Instead, the respondent denies the allegation made by the applicant. An example of an agency succeeding on such a case is Mangan and The Treasury [2005] AATA 898 to which Ms Stern SC referred to in the oral argument.
The Act obliges the respondent to give access to documents under the Act. Business information has been required compulsorily by the respondent and to the extent to which any information in the seven documents was compulsorily acquired by the respondent, the exemption cannot be claimed, as paragraph 6.200 suggests.
A potential benefit from the Commonwealth, namely approval under the EPBC Act, is being sought by Walker. That benefit is no doubt very valuable to Walker. In its own case, it is hardly likely that it would refuse in the future to supply information in the course of seeking the benefit, out of fear that the information would be included in fulfilment of the respondent’s duty under the FOI Act. Similarly, it is hardly likely that competitors of Walker as proposed developers under the EPBC Act would refuse to supply information necessary for them to supply in pursuit of obtaining a similar benefit.
One argument deployed in the Clayton Utz letter at redacted paragraph 9 puts this matter in the context of the allegations in fact made about the allegedly false, misleading or inaccurate statements in document 1. One answer that might be made to the rhetorical question there posed is that the person in question would be able to rebut the statements in document 1 or any similar document. Any statement made to government in the course of seeking a benefit has the risk of being released under FOI legislation. Mr Saba says in his affidavit that in effect he agrees with paragraph 6 of the Clayton Utz letter (paragraph 40) but does not mention paragraph 9.
Paragraphs 58 and 59 of Walker’s SFIC allege that:
58Walker, and developers such as Walker, have a reasonable expectation that information generated as part of their engagement with Government (other than material that is required to be publicly disclosed as part of the process of obtaining any necessary approvals and for the purpose of providing information to the public and enabling consultation) will not be disclosed publicly save to the extent required or appropriate pursuant to the statutory publication and consultation procedures.
59It is reasonably likely that developers such as Walker will be reluctant to engage openly with the Department (and any other relevant Commonwealth agency) to the extent that information may be disclosed pursuant to FOI Act requests, particularly in circumstances where the developer does not have an opportunity to correct any false, misleading or inaccurate statements contained in such information, or otherwise to enable the information to be provided in an accurate form and with relevant context.
If Walker has or had any misconception about the provisions of the FOI Act, that would be very surprising and I would not make such a finding without evidence. The question under s 47G is about what is reasonably to be expected. There is no evidence that what is asserted in paragraph 58 is reasonably to be expected. The same is true of paragraph 59. I would reject both submissions, and the case made under s 47G(1)(b) for all seven documents in issue. Paragraph 54 of Mr Saba’s affidavit states that:
54However, beyond complying with statutory obligations under the EPBC Act, it is reasonably likely that I, and other representatives of Walker, would be reluctant openly to engage with the Department in relation to the Project or future developments, because of the risk of documents and information concerning Walker and the Project, which have been prepared by members of the Department without any opportunity by Walker to consider and make any necessary corrections, being disclosed to the public.
I do not treat that paragraph as evidence that Walker has misconceptions about the effect of the FOI Act. If I am wrong about that, I do not think that any misconception on Walker’s part is reasonably to be expected within the meaning of s 47G(1)(b).
If the same matters are relied upon under s 47, I would reject them.
In the result, the reviewable decisions will be affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC
.....................................[SGD]...................................
Associate
Dated: 1 August 2023
Date(s) of hearing: 24 April 2023 Date final submissions received: 30 May 2023 Counsel for the Applicant: Ms K Stern SC with Mr J Burnett Solicitors for the Applicant: Clayton Utz Solicitors for the Respondent: Sparke Helmore Lawyers Other Party: In person
0
3
0