Warren; Services Australia and (Freedom of information) - [2022] AATA 4191

Warren; Services Australia and (Freedom of information) [2022] AATA 4191 (2 December 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2019/7870
Re:Services Australia
APPLICANT

AndJustin Warren
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:2 December 2022
Place:Melbourne

The decision of the Tribunal is to:
(a)affirm the Information Commissioner’s review decision in relation to documents 4, 9, 10 and 12; and
(b)set aside and substitute the Information Commissioner’s review decision in relation to documents 1, 2, 3, 5, 6, 7 and 8 and find that these documents are exempt from disclosure under the Freedom of Information Act 1982 (Cth).

.......................[sgd].................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – request for access to Robodebt documents – Information Commissioner granted access to some but not all documents – Services Australia applies for review – onus on Services Australia to establish that the decision of the Information Commissioner is not justified – objections to evidence – Cabinet documents – application of s 34(1)(d) of the Freedom of Information Act 1982 (Cth) (FOI Act) - interpretation of section 34(3) of the FOI Act – whether disclosure would reveal a Cabinet Deliberation - interpretation of the qualification in s 34(3) as to whether the existence of the deliberation has been officially disclosed - whether Cabinet deliberations were officially disclosed – whether documents are conditionally exempt under s 47C of the FOI Act – public interest test – decision under review is partially set aside.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Cases
Casey v Repatriation Commission (1995) 60 FCR 510
Commonwealth v Northern Land Council (1992) 176 CLR 604
Elliott v R (2007) 239 ALR 651
Fisse v Secretary, the Department of Treasury (2008) 172 FCR 513
Fountain v Alexander (1982) 150 CLR 615
Harris v Australian Broadcasting Corporation (1983) 50 ALR 551
Heyward v Minister for Immigration and Citizenship (2009) 112 ALD 226; [2009] FCA 1313
Kamasaee v Commonwealth of Australia & Ors (No. 5) [2016) VSC 595
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lanyon v Commonwealth (1974) 129 CLR 650
Mills v Meeking (1990) 169 CLR 214
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
New South Wales v Ryan (1998) 101 LGERA 246
News Corporation Ltd. v National Companies and Securities Commission (1984) 5 FCR 88
Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211
OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Project Blue Sky Inc V Australian Broadcasting Authority (1998) 194 CLR 355
R v L (1994) 49 FCR 534
Sankey v Whitlam (1978) 142 CLR 1
SAS Trustee Corporation v Miles (2018) 361 ALR 206
Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301
Spencer v Commonwealth (2012) 206 FCR 309
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405
Toomer and Department of Agriculture, Fisheries and Forestry and Ors, Re (2003) 78 ALD 645
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
Secondary Materials
Department of the Prime Minister and Cabinet, Cabinet Handbook, 13th Ed. (August 2019).
Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth).
Heydon, J. D., Cross on Evidence, 8th Ed. (2010).
Office of the Australian Information Commissioner, Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth).
Contents
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
The FOI Act Request
The Decision of the Information Commissioner
The Application to the Tribunal for Review
LEGISLATIVE SCHEME
WITNESSES AND EVIDENCE
Objections to evidence from applicant witnesses
CONSIDERATION
CABINET EXEMPTION
The Interpretation of s 34(1)(d) – draft Cabinet documents
The application of s 34(1)(d) - Documents 4, 9 and 10 – the draft NPPs
Document 9
Conclusion as to Document 9
Documents 4 and 10
Are Documents 4 and 10 Drafts of NPP2 and NPP3?
Were NPP2 and NPP3 proposed by a Minister to be submitted to Cabinet for its consideration?
Were NPP2 and NPP3 submitted to Cabinet for its consideration?
Were NPP2 and NPP3 brought into existence for the dominant purpose of submission for consideration by Cabinet?
Conclusion as to Documents 4 and 10

The Interpretation of the primary phrase in s 34(3) – disclosure would reveal a Cabinet Deliberation
The application of the primary phrase in s 34(3) - Documents 4, 9 and 10 – the Draft NPPs
The application of the primary phrase in s 34(3) - Documents 1, 2 and 3 – the costing spreadsheets
Document 1
Documents 2 and 3

The application of the primary phrase in s 34(3) - Documents 5, 6, 7 and 8 – draft costing requests
The application of the primary phrase in s 34(3) - Document 12
The Interpretation of the Qualification in s 34(3) as to whether the existence of the deliberation has been officially disclosed
Conclusion as to the Interpretation of the Qualification in s 34(3)

The application of the exception in s 34(3) - Have Cabinet Deliberations Been Officially Disclosed - documents 1 to 10
What Information Was Officially Disclosed?
Comparison of Deliberations and Information Officially Disclosed

The application of s 34(6) - purely factual material - documents 1 to 10 and 12
PUBLIC INTEREST TEST
Documents 1 to 10 and 12 – section 47C
Are the documents conditionally exempt?
Document 12 – is it conditionally exempt?
The s 47C(2) exceptions
Factors for and against disclosure
Balancing the public interest

DECISION OF THE TRIBUNAL
REASONS FOR DECISION
Deputy President Britten-Jones
2 December 2022
INTRODUCTION AND BACKGROUND

Between 2015 and 2019 the Commonwealth of Australia through the applicant, Services Australia, operated an automated debt collection system which was intended to recover social security payments that had been overpaid. I will refer to this automated debt collection system as Robodebt by which it has become known. Overpayments were identified and demanded based upon an automated process of comparing an individual’s income information kept by the Australian Taxation Office with the actual fortnightly income information provided in relation to social security payments. This process was described as data matching.
The recipients of alleged overpayments brought a class action against the Commonwealth in the Federal Court of Australia. Murphy J, who heard the application for approval of a settlement of that action, said in his reasons that the proceeding “exposed a shameful chapter in the administration of the Commonwealth social security system and a massive failure of public administration”.[1]
[1] Prygodicz v Commonwealth of Australia (No 2) [2021] FCA 634 at [5].
The respondent, Mr Warren, is a journalist who has written extensively about Robodebt and who has sought access to the documents in issue in this matter under the Freedom of Information Act 1982 (Cth) (FOI Act).[2]
[2] All references to legislation are to the Freedom of Information Act 1982 (Cth) unless otherwise stated.
The development of the policy in relation to Robodebt began in 2015 and continued in 2016 and 2017 (the Robodebt policy). The documents in issue relate to this period. A series of New Policy Proposals (NPPs) in relation to Robodebt were prepared for submission to Cabinet. Those NPPs are said by Services Australia to reflect the deliberations of Cabinet. Services Australia has refused to provide access to the requested documents on the basis that they are drafts of the NPPs[3] or documents[4] that contain financial information relating to the cost that would be incurred in implementing the measures within the NPPs. The relevant NPPs are described as NPP1 to NPP6 each of which is a separate NPP that was put before Cabinet or its subcommittee or was proposed to be so put.
[3] Documents 4, 9 and 10.
[4] Documents 1, 2, 3, 5, 6, 7, ,8 and 12.
The FOI Act Request
On 14 January 2017, Mr Warren made a request under the FOI Act to Services Australia for access to certain documents the subject of a question on notice[5] and answers given during a Budget Estimates hearing on 3 June 2015, namely:
(a)The business case documents for the Pay As You Go (PAYG) data matching initiative that was the subject of the question on notice;
(b)Documents that describe the algorithm of process used to perform the data matching that identified the “approximately 1,080,000” discrepancies between PAYG data and data reported by Department of Human Services (DHS) customers; and
(c)Documents that describe the analysis process for how the value of “historical discrepancies” was determined.
[5] Statement of Justin Warren dated 10 June 2021 Exhibit JW-13.
Services Australia identified 13 documents in its possession in response to Mr Warren’s FOI request and refused access in full to them on the basis that:
(a)Documents 1 – 12 were exempt under s 34; and
(b)Document 13 was exempt under s 37(2)(b).
The Decision of the Information Commissioner
Mr Warren applied for a review by the Information Commissioner who, on 11 November 2019, set aside the original decision and made a substituted decision that:
(a)Documents 1, 2, 3, 5, 6, 7, 8, 11 and 12 are not exempt under ss 34 or 47C;
(b)Document 13 is not exempt under ss 37(2)(b) or 47E(d); and
(c)Documents 4, 9 and 10 are exempt under s 34.
The decision and reasons of the Information Commissioner provided as follows:
(a)The Information Commissioner was satisfied that documents 4, 9 and 10 are exempt under s 34(1)(a).
(b)The Information Commissioner was not satisfied that Services Australia had provided sufficient particulars to establish that documents 1 to 3 were brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) applies. In particular, although it appeared that these documents related to proposals and costings relevant to matters that may have been considered by Cabinet, the Information Commissioner found that insufficient particulars had been provided about the context and timing of the creation of the documents to establish that they were brought into existence for the dominant purpose of briefing a Minister on a submission, or proposed submission, to Cabinet at the time of the creation of the documents.
(c)The Information Commissioner was not satisfied that Services Australia had provided sufficient particulars to establish that documents 5 to 8 were drafts of documents that were brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) applies. In particular, although it appeared that these documents related to proposals relevant to matters that may have been considered by Cabinet, the Information Commissioner found that insufficient particulars had been provided about the context of the creation of the documents and the associated document claimed to be exempt under s 34(1)(a) to establish that s 34(1)(d) applies.
(d)With respect to the application of s 34(3) to documents 1 to 3, 5 to 8, 11 and 12, the Information Commissioner said that although it was apparent that the documents included descriptions of proposals and costings that may have been relevant to matters that were considered by Cabinet, it was not apparent how this information disclosed Cabinet’s deliberations or decision on the subject. Further, the Information Commissioner was satisfied that the existence of the deliberation of proposals and costings relating to the subject matter of the documents at issue was officially disclosed when the Government released its 2015/2016 budget statements.
(e)The Information Commissioner was satisfied that documents 1 to 3 and 5 to 8 were conditionally exempt under s 47C.
(f)The Information Commissioner was not satisfied that documents 11 and 12 were conditionally exempt under s 47C because the material in those documents was purely factual, being statements relating to assumptions that have been made in developing particular costing analysis.
(g)Although it was apparent that the documents included descriptions of proposals and costings that may have been relevant to matters that were considered by Cabinet, the Information Commissioner was not satisfied that Services Australia established that the documents disclose Cabinet deliberations or decisions and therefore did not consider that disclosure of the documents would impair the confidentiality of the Cabinet process as Services Australia contended.
(h)The Information Commissioner was satisfied that the public interest factors favouring disclosure outweigh the factors against disclosure and found that documents 1 to 3, 5 to 8 and 11 and 12 were not exempt under s 47C.
The Application to the Tribunal for Review
The decision of the Information Commissioner is reviewable by the Tribunal pursuant to s 57A. In this case, it is Services Australia, as an executive agency, who applied on 29 November 2019 to the Tribunal for the review. Consequently, s 61 applies and provides that:
if an agency … applied for the review - the agency … has the onus of establishing that the decision is not justified, or that the Tribunal should give a decision adverse to Services Australia in relation to the request …
In Fisse v Secretary, the Department of Treasury,[6] Buchanan J considered s 61 and the onus of proof which is apposite to this matter:
The respondent, therefore, bore the onus of establishing, for the first time, that the executive summary was an exempt document in its own right. It bore the onus of establishing that it was brought into existence for the particular purpose contemplated by s 34(1)(a). Correspondingly, the AAT was bound by s 61 of the FOI Act to evaluate the respondent’s contention upon a proper approach to the question of proof. That approach could accommodate the circumstance that the AAT is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’)) but it could not substitute, for the necessity of making out a case on the preponderance of probabilities, some lesser test…
[6] (2008) 172 FCR 513 (Fisse) at [30].
The scope of Services Australia’s application is limited to documents 1 to 10 and 12. Services Australia no longer contends that documents 11 and 13 should be exempt from disclosure. Services Australia provided an updated schedule of documents subject to exemption claims.[7]
[7] Exhibit 8, Applicant’s updated schedule of documents subject to exemption claims.
It follows that Services Australia has the onus of establishing that the documents in issue are exempt from disclosure. Services Australia claims that documents 1 to 10 and 12 are:
(a)exempt under s 34; or
(b)Conditionally exempt under s 47C, and that giving access to the documents would, on balance, be contrary to the public interest.
LEGISLATIVE SCHEME
The objects of the FOI Act are set out in s 3:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The FOI Act provides a general rule for mandatory access to a document of an agency or Minister but exemptions and conditional exemptions apply. If a document is an exempt document under Part IV, Division 2 (exemptions) (which includes Cabinet documents under s 34), then access to the document is not required to be given because of s 11A(4).[8] If a document is a conditionally exempt document under Part IV, Division 3 (public interest conditional exemptions) (which includes documents under s 47C), then access to the document is required to be given, unless it would be contrary to the public interest because of s 11A(5).[9]
[8] See Item 1 of the table in s 31A.
[9] See Item 2 of the table in s 31A.
The interpretation provision in s 4(1) provides that Cabinet includes a committee of Cabinet.
I consider later in these reasons the interpretation to be given to ss 34 and 47C.
WITNESSES AND EVIDENCE
Services Australia called evidence from two witnesses.
Mr Scott Britton was employed at the DHS (now Services Australia) from 1988 to 2016. At the time the subject documents were created he was the National Manager, Customer Compliance in DHS and was involved in their creation. Services Australia relied upon his affidavit sworn 8 May 2020 (the Britton affidavit).[10]
[10] The affidavit of Scott Britton sworn 8 May 2020 is Exhibit 2.
Ms Leonie McGregor has been employed since May 2019 by the Department of Prime Minister and Cabinet (PM&C) as First Assistant Secretary, Cabinet Division. Services Australia relied upon her affidavits sworn on 8 May 2020 (the 8 May 2020 McGregor affidavit) and 21 July 2021 (the 21 July 2021 McGregor affidavit).[11]
[11] The Open Affidavit of Leonie McGregor sworn 8 May 2020 is Exhibit 3A. The Confidential Affidavit of Leonie McGregor sworn 8 May 2020 is Exhibit 3B. The Confidential Supplementary Affidavit of Leonie McGregor sworn 21 July 2021 is Exhibit 9A. The Open Supplementary Affidavit of Leonie McGregor sworn 21 July 2021 is Exhibit 9B.
The application for review was heard on 21, 22 and 23 June 2021.[12] Mr Britton and Ms McGregor gave evidence by way of affidavit and oral testimony at the hearing. At the conclusion of the giving of evidence, the parties were given time to provide written closing submissions and a further opportunity to address the Tribunal in person with respect to those closing submissions. On 29 June 2021, Services Australia applied to re-open the case to give further evidence from Ms McGregor. The parties appeared before the Tribunal on 1 July 2021 and made submissions on the application to reopen.
[12] The transcript of proceedings held on 21, 22 and 23 June 2021 is defined as First Transcript and the transcript of proceedings held on 22 October, and 2 and 23 December 2021 is defined as Second Transcript in these reasons.
Services Australia clarified that they wished to rely upon the 21 July 2021 McGregor affidavit and made an application for confidentiality with respect to it on the same day. A redacted copy of this affidavit was provided to the respondent. On 25 August 2021, I made an order under s 35(4) of the Administrative Appeals Tribunal Act1975 (Cth) (the AAT Act) restricting the disclosure of the redacted parts of the 21 July 2021 McGregor affidavit on the basis that they would reveal information contained within Cabinet documents or Cabinet deliberations and therefore should not be disclosed.
After hearing further argument on 22 October 2021, I granted leave to Services Australia to re-open its case and admitted into evidence the 21 July 2021 McGregor affidavit.

Mr Britton and Ms McGregor gave further oral evidence on 2 December 2021.
The respondent relied upon statements from Mr Justin Warren[13] and Ms Lyndsey Jackson[14] and an affidavit from a solicitor, Ms Jacinta Lewin.[15] These witnesses were not cross-examined by Services Australia.
[13] The statement of Justin Warren dated 10 June 2021 is Exhibit 4.
[14] The statement of Lyndsey Jackson dated 4 June 2021 is Exhibit 5.
[15] The affidavit of Jacinta Lewin sworn 27 July 2021 is Exhibit 12.
Objections to evidence from applicant witnesses
Prior to Services Australia’s witnesses being called, the respondent made objections to passages of their affidavit evidence. At that stage I considered there was no unfairness to the respondent if those objections were deferred and further considered after cross-examination. Accordingly, I did not rule on the objections but deferred consideration of them.[16] Services Australia called the two witnesses who were cross-examined. The respondent, as part of his closing submissions, identified the objections to affidavit evidence by reference to an annexure to the respondent’s written closing submissions dated 17 December 2021. Services Australia decided not to rely on some of the paragraphs to which objection was taken[17] but otherwise contended it was a matter for the Tribunal to determine what weight should be given to the remaining paragraphs. The respondent asked that I rule on the objections as part of my written reasons.[18]
[16] First Transcript page 59.
[17] Second Transcript page 111
[18] Second Transcript page 114.
When considering the approach to be taken with respect to the affidavit evidence I must have regard to legislative provisions in relation to the procedure of the Tribunal and its objects.
Section 33(1)(c) of the AAT Act states:
the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Section 33(1)(c) should be read in the context of ss 33(1)(b) and 2A and 39(1) of the AAT Act which provide that:
(a)the proceedings of the AAT shall be conducted with as little formality and technicality, and with as much expedition....as a proper consideration of the matters before the Tribunal permit;
(b)in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick; and
(c)the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case.
Guidance with respect to s 33(1)(c) of the AAT Act came soon after the commencement of the Tribunal from its first President, the late Brenan J in the decision of Pochi v Minister for Immigration and Ethnic Affairs[19] (Pochi) as follows:
How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33 (1) (c) of the Administrative Appeals Tribunal Act provides that: “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.” …
The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that “this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force”, as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board[(15)]. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: “Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’”. That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore said: “These technical rules of evidence, however, form no part of the rules of natural justice.
The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue”. Lord Denning M.R. in T. A. Miller Ltd. v. Minister of Housing and Local Governmentsaid much the same: “Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law”, and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz, Administrative Law, Boston, 1976, pars. 115 et seq.), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edisonjudgment required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see Schwartz, par. 118). But in Richardson v. Perales the Consolidated Edison casewas construed in this way: “The contrast the Chief Justice was drawing … was not with material that would be deemed formally inadmissible in judicial proceedings but with material ‘without a basis in evidence having rational probative force’. This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case”.
The majority judgments in Bott's caseshow that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J. said: “The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case”. It will be necessary to return to his Honour's reference to cross-examination, but for the moment the relevance of his Honour's judgment is to be found in the procedural flexibility which it assures to Tribunals which are statutorily freed from the rules of evidence, though required to act upon material which is logically probative. As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay “has a wide scale of reliability”, and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.
(footnotes removed)
[19] (1979) 36 FLR 482 at 492-493).
Further with respect to s 33 of the AAT Act, Hill J said in Casey v Repatriation Commission:[20]
… s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.
[20] (1995) 60 FCR 510 at 514
Section 33 of the AAT Act was considered by Emmett J in Heyward v Minister for Immigration and Citizenship[21] as follows:
[63] Finally, and this is significant, under s 33(1)(c), the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate. The effect of s 33 is that the rules of evidence do not apply to a proceeding before the Tribunal. That is not to say that the rules of evidence may be totally ignored. The rules of evidence have been developed over the centuries and represent an attempt to evolve a method of inquiry best calculated to prevent error and elicit truth. No Tribunal can, without grave danger of injustice, set the rules of evidence on one side and resort to methods of inquiry that necessarily advantage one party and necessarily disadvantage the opposing party (see R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256).
[64] The rules of evidence, however, whether they be the rules under the general law or under the Evidence Act, are exclusionary rules. Thus, to say that the rules of evidence do not apply, or that the Tribunal is not bound by the rules of evidence, means that material that would be excluded by the rules of evidence is not inadmissible in a proceeding before the Tribunal. It is also important to remember that the technical rules of evidence form no part of the rules of natural justice and procedural fairness. The requirement that a person exercising quasi-judicial functions must base a decision on evidence does not mean that the rules of evidence apply. It requires that the decision must be based on material that tends logically to show the existence, or non-existence, of facts relevant to an issue to be determined, or to show the likelihood, or unlikelihood, of the occurrence of some future event, the occurrence of which would be relevant. If material is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament entrusts the responsibility of making a decision. However, the question of weight is a different matter altogether from the admissibility of the material (see, for example, Re Pochi v Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247 at 256-257).
[21] (2009) 112 ALD 226; [2009] FCA 1313.
The High Court in Minister for Immigration and Multicultural Affairs v Eshetu[22] said with respect to provisions similar to s 33 of the AAT Act that:
They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
[22] (1999) 197 CLR 611 at [49].
The respondent’s objections were based in part on Services Australia’s failure to put forward the best evidence available. Flick J in Fisse v Secretary, Department of Treasury[23] (Fisse) considered a similar situation:
[23] (2008) 172 FCR 513.
[125] A separate source of reservation focused upon whether there was evidence before the Tribunal upon which it could properly make its finding as to “purpose”. In the absence of explanation, it was perhaps surprising that not one member of the Working Party was sought to be called to expose the reason why the Executive Summary was prepared. Presumably it was a member of the Working Party who prepared that Summary. If it was the former Treasurer who gave instructions for the preparation of the Summary, perhaps for the very purpose of the Summary being provided to Cabinet, it was perhaps less surprising that he did not provide such evidence. No inference should too readily be drawn from the fact that he did not give evidence: cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [143] per Kirby J, at [284] per Callinan J.
[126] It ultimately remained a matter, however, for the first respondent to discharge the onus imposed by s 61 of the 1982 Act to make out its claims for exemption. How he chose to do so was a matter for him to decide.
[127] For whatever reason, the first respondent chose the course of relying primarily upon the text of the correspondence as between the then Treasurer and Prime Minister and the experience of Ms Croke. The position in which Ms Croke found herself was, on one view, unenviable. Her affidavit made it abundantly clear that the basis upon which she was expressing views was her reading of the materials and files and her experience. But, inevitably, she had no direct knowledge of the purpose for which the Executive Summary was prepared.
[128] The forensic course pursued by the first respondent before the Tribunal was not a course without its obvious difficulties. Having decided upon that course, however, it was perhaps further surprising that Ms Croke did not apparently attempt to contact any member of the Working Party or that member who prepared the Summary. Reliance upon what Ms Croke described as her “experience” and the “practice” as to the manner in which Cabinet submissions were prepared inevitably involved the Tribunal in a less than satisfactory process whereby inferences had to be drawn from a questionable factual foundation.
[129] It cannot be said, however, that such evidence as was relied upon by the first respondent before the Tribunal was not sufficient to deny to the Tribunal the ability to make its finding as to “purpose”. In making its findings, the Tribunal was not bound by the rules of evidence: Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c); it was thus open to it to admit evidence which would not have been admissible in accordance with the law of evidence: cf Casey v Repatriation Commission (1995) 60 FCR 510. “The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance”: Casey v Repatriation Commission 60 FCR at 514. Applied: Secretary, Department of Social Security v Jordan (1998) 83 FCR 34 at 43-44 per Hill J; Secretary, Department of Family and Community Services v Verney (2000) 60 ALD 737 at [37]-[39] per Cooper J; Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 at [62] per Finn J.
[130] In the present appeal, it may have been open to the Tribunal to have rejected the evidence of Ms Croke, especially that part of her evidence as to the very matter upon which the Tribunal was called to decide: Re Barbaro (S) and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1. Davies J there observed at 5:
“In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.”
Clearly in the present proceeding there was “better evidence” as to the purpose for which the Executive Summary was prepared. But, and for whatever reason, the present applicant chose not to object to the tender of the affidavit evidence of Ms Croke and advanced no submission that the tender of her affidavit deprived the applicant of the opportunity to properly “test the evidence tendered against him”. In such circumstances, the course which the Tribunal pursued in the present proceeding of placing reliance upon the affidavit and oral evidence of Ms Croke was a course open to it.
Counsel for the respondent relied upon this final paragraph above in Fisse to support the objection to parts of the affidavits of Ms McGregor and Mr Britton. The respondent submitted that the tender of those affidavits was procedurally unfair because it deprived him of the opportunity to properly “test the evidence tendered against him”. There were further objections to evidence for the expression of an opinion not based upon disclosed background and experience.
The legislation and the authorities above stand for the following propositions relevant to this matter:
(a)Although the rules of evidence are not binding, they should not be ignored, and the Tribunal is obliged to comply with the requirements of procedural fairness.
(b)The Tribunal is entitled to have regard to evidence which tends logically to show the existence or non-existence of facts relevant to the issue to be determined i.e. evidence which is relevant and logically probative.
(c)The Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence.
(d)If evidence is capable of having any probative value, the weight to be attached to it is a matter for the Tribunal.
Because the Tribunal is not bound by the rules of evidence, I do not intend to use the rules of evidence to make rulings as to the admissibility of certain passages of evidence in the affidavits or the transcript. I intend treating the objections to affidavit evidence as not requiring that the evidence is struck out from the affidavit or ruled inadmissible, but rather as a submission that little or no weight should be given to those passages objected to. In this regard, Buchanan J noted when considering the character of the appeal in Fisse:[24]
Nor could the fact that opinions upon which the AAT might rely were not strictly admissible as evidence necessarily disqualify such opinions from attention by the AAT because it is not bound by the rules of evidence (see s 33(1)(c) of the AAT Act and Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-493). Nevertheless, the position is not completely at large. There must have been some evidence before the AAT which was capable, as a matter of law, of sustaining its conclusions.
[24] Fisse v Secretary, Department of Treasury (2008) 172 FCR 513 at [42].

With respect to the issue of procedural fairness, I note that the respondent was given the opportunity to cross examine the deponents of the affidavits thereby testing their evidence and to make submissions as to why the Tribunal should not rely upon their evidence. In these reasons, I will need to consider whether the evidence adduced by Services Australia is logically probative and capable of sustaining the conclusions sought by Services Australia. I will also need to consider whether it would be unfair to rely on evidence where there is better evidence available. If the evidence objected to is not legally probative or it would be unfair to rely upon it, then I will give it little or no weight.
As to whether or not there is better evidence available, I bear in mind that the respondent does not have access to the documents in issue which may themselves contain evidence supporting the claims made under the FOI Act. For example, it may appear to the respondent based upon the evidence to which he has access that Services Australia has failed to adduce the best evidence available but the difficulty for the respondent is that he does not have access to what may be the evidence relied upon by Services Australia to support the claimed exemption. As discussed above, that is the nature of an FOI claim. In that situation, the respondent relies upon the Tribunal to satisfy itself or not that the necessary evidence is contained within the documents in issue.
The respondent also complained[25] that, because he has not been given access to the documents in issue and the confidential affidavits, he is prevented from contesting that, for example, document 9 is a draft of NPP1.[26] The respondent relies upon s 39 of the AAT Act which provides:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
[25] Respondent’s closing submissions (written) at [96].
[26] The same complaint is made with respect to documents 4 and 10.
Mason CJ expressed the principle of natural justice in these terms in Kioa v West:[27]
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.
[27] [1985] HCA 81; (1985) 159 CLR 550 at 585.
In Pochi, at 512, Brennan J said:
...an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’
Section 63(2)(b) of the FOI Act provides:
(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
…(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
In News Corporation Limited v National Companies and Securities Commission,[28] the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Portions of the hearing were held in the absence of the applicant and his representative. The Tribunal subsequently affirmed the decision under review. On appeal, the majority of the Full Federal Court held that there had been no denial of procedural fairness. Fox J said at 96-97:
Section 35(2) of the AAT Act is conditioned by the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s 63(1), that subs (2) applies, among other situations, to the maintenance of privacy in relation to an exempt document. To that end it can exercise the powers in that subsection (see also s 64(1) of the Act). The particular documents to which access was sought were the schedules produced by way of evidence before the Tribunal, for they contained a description of the documents, one by one. It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know. It is not necessary to consider whether the schedules became exempt documents themselves (see s 25(1)).
I am of the view that s 35(2) provided a power which was available to be used, and am not satisfied that there was any error of law affecting its exercise. Section 39, which was relied on, is expressly made subject to s 35. The claim based on denial of natural justice must therefore fail.
[28] (1984) 5 FCR 88.
In this case a confidentiality order has been made under s 35(4) of the AAT Act with respect to NPP1 which is marked as Exhibit SLM-1 to the confidential affidavit of Ms McGregor dated 21 July 2021. The entitlement under s 39(1) of the AAT Act to inspect documents to which the Tribunal proposes to have regard is made expressly subject to s 35 of the AAT Act. Given that an order under s 35 has been made with respect to NPP1, the respondent is not entitled to inspect it.
With respect to document 9, s 64(1) of the FOI Act applies so as to qualify the obligation under s 37 of the AAT Act to lodge relevant documents with the Tribunal in relation to a document claimed to be an exempt document. The procedure with respect to exempt documents is set out in the Tribunal’s Freedom of Information Practice Direction which says:
2.2 Where the decision-maker claims that a document is an exempt document, the decision-maker should not include that document with the documents lodged with the AAT under section 37 of the AAT Act (see section 64 of the FOI Act). It is not appropriate to lodge the documents that are claimed to be exempt and then to request that we make a confidentiality order under section 35 of the AAT Act.
It follows that the respondent has no entitlement to inspect either document 9 or NPP1. Whilst that may put the respondent in a difficult position, it is necessary to avoid the disclosure of sensitive Cabinet material. I note that in OJG Engineering Pty Ltd and Commissioner of Taxation,[29] Deputy President Boyle said that it is common in FOI matters before the Tribunal that an applicant will not have access to the documents that are the subject of the FOI request, but that this “does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application”.
[29] [2019] AATA 4293 at [30].
CONSIDERATION
It is convenient to address Services Australia’s claims under s 34, and then s 47C, by reference to groups of documents:
(a)first, ‘draft’ new policy proposals (NPPs) being documents 4, 9 and 10 - s 34(1)(d) and s 34(3) and s 47C;
(b)second, costing spreadsheets being documents 1, 2 and 3 – s 34(3) and s 47C;
(c)third, ‘draft’ costing requests being documents 5, 6, 7 and 8 – s 34(3) and s 47C; and
(d)fourth, a document setting out certain costing assumptions being document 12 – s 34(3) and s 47C.
It is also convenient to note at this stage that:
(a)The subject documents relate to a number of welfare payment compliance measures that were proposed between 2015 and 2017 in three main iterations.
(b)Documents 1, 9 and 11 relate to the first iteration of welfare compliance measures delivered under the 2015-16 Budget.
(c)Documents 2, 4 and 8 relate to the second iteration of welfare compliance measures in the 2015-16 Mid-Year Economic and Fiscal Outlook
(d)Documents 3, 10 and 12 also relate to the second iteration of welfare compliance measures
(e)Documents 5, 6 and 7 relate to the third iteration of welfare payment compliance measures and are draft internal costing requests seeking formal costings from the DHS Costing Team.
CABINET EXEMPTION
The Interpretation of s 34(1)(d) – draft Cabinet documents
Section 34 provides:
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5) A document by which a decision of the Cabinet is officially published is not an exempt document.
(6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
The Full Court of the Federal Court in Fisse said in relation to s 34:
[100] The established convention as to Cabinet confidentiality and those common law principles relevant to determining a claim for public interest immunity in respect to Cabinet deliberations, it is considered, may inform the legislative objective sought to be achieved — particularly in relation to s 34 of the 1982 Act. The legislative objective in passing s 34 was self-evidently to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet. The Second Reading Speech of 18 August 1981 thus records in part:
… Only in some cases are the exempt documents defined by reference to the nature of the document itself, such as Cabinet and Executive Council documents. It is of the essence of Cabinet government that the deliberations of Cabinet and of the Executive Council should be protected from mandatory disclosure. Of course, the tenor of many Cabinet decisions, as well as various Executive Council decisions are published. The documents which make these decisions public are not, of course, exempt documents under the Bill.
[101] It nevertheless remains the task of the Tribunal, and of this Court on appeal, to apply the terms of the 1982 Act to the facts as found. That Act attempts to incorporate (not only in s 34 but also in sections such as ss 37 and 42) claims for withholding information which would have been withheld at common law; it is also an Act which more fundamentally confers a right of access, subject only to those exemptions defined by those statutory provisions in Pt IV. Given the legislative objective of ensuring openness in government, it is of fundamental importance that the terms of the 1982 Act providing for exemptions are construed according to their terms.
The Tribunal considered the scope of the exemption in s 34(1)(a)(i) in Secretary, Department of Prime Minister and Cabinet and Anor v Sanderson (Sanderson):[30]
[30] Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361 (Sanderson) at [52] to [56].
[52] Section 34 describes three classes of documents that are exempt documents. The first class, described in s 34(1), provides for four sub-classes of documents, all of which are exempt documents. The Commonwealth Parties’ submissions have focused on the class prescribed by s 34(1)(a). To come within that class, two criteria have to be met. The first, set out in s 34(1)(a)(i), is that the document has been “submitted to Cabinet for its consideration, or is, or was, proposed by a Minister to be so submitted” The words “submit” and “consideration” require examination.
[53] The word “submit” has various shades of meaning. The shade relevant to this case is:
“... 3a to offer, suggest or present (eg a proposal) for formal consideration by others; b to hand in (eg an essay or other piece of written work) for marking, correction, etc. He submitted the essay late. ...”
That would seem to be the meaning in which the word is used in s 34(1)(a)(i). The document must either have been presented to the Cabinet for its consideration or proposed by the Minister to be presented to it. Lodgement of a document with the Cabinet Secretariat does not equate with its submission to Cabinet. On the basis of the evidence given by Mr Taloni and the material set out in the Cabinet Handbook, I am satisfied that presenting, and so submitting, a document to the Cabinet Secretariat does not equate with its being submitted to Cabinet for its consideration. The Cabinet Secretariat is the path by which a document travels to the Cabinet and whose hurdles it must clear but it is no more than a path intended to ensure that only those documents in a state appropriate to be considered by Cabinet are considered.
[54] What is meant by “consideration”? Among the ordinary meanings of that word is that of “careful thought”. In the case of Re Toomer and Department of Agriculture, Fisheries and Forestry (Toomer), I said that:
“... The choice of the word ‘consideration’ in s 34(1)(a), rather than the word ‘deliberation’ chosen in s 34(1)(d), suggests that the exemption extends to a document that is prepared simply to inform Cabinet and whose contents are intended to be noted by its Ministers ...”
[55] The substance of s 34(1)(d), to which I referred in Toomer, is now found in s 34(3). As to the meaning of the word “consideration”, I have come to the same conclusion as I did in Toomer but would expand on what I said. The reference in s 34(1)(a)(i) is to submission to Cabinet for its consideration i.e. for its careful thought. A “deliberation” is also defined to mean, among others, “... careful thought. 2 (deliberations) formal and thorough thought and discussion. ...”. It seems to me that s 34(3) has used the word “deliberation” to signify any careful thought and discussion that has actually taken place in Cabinet. By way of contrast, s 34(1)(a)(i) is referring to the purpose for which a document has been submitted. It has been submitted for its consideration but there is no requirement that the consideration has been undertaken or that it be undertaken in a particular form. As I said in Toomer:
“... In the decision-making process, it is to be expected that deliberation precedes a decision but deliberation is no less deliberation for not resulting in a decision and a decision is no less a decision for not being supported by written evidence of deliberation. Regard must be had to all of the circumstances.
By the same token the words ‘deliberation’ and ‘decision’ should not be read down by considerations as to whether, for example, matters deliberated or decided upon are preliminary to another matter or whether they relate to matters that may be categorised as procedural or substantive. The protection of Cabinet documents of the type specified has been seen as the protection of an essential public interest and so all its deliberations and decisions are protected as provided by s. 34(1)(d). Taking its deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed. If a document discloses such deliberations or decisions then, as Deputy President Hall said in Anderson and Department of Special Minister of State No 2 (1986) 11 ALN 239 (at 27)):
It is not necessary that the decision or deliberation should be quoted verbatim. To construe s 34(1)(d) otherwise would be to place a premium upon verbal accuracy and to require precision of expression in government documents that could only frustrate rather than promote the proper and efficient conduct of government. Whether, in a particular case, disclosure of such a document would involve the disclosure of a decision or deliberation of Cabinet is a question of fact to be decided in light of all the circumstances.
...”
[56] It may be that a document complies with all of the procedures of the Cabinet office but, for one reason or another, is not placed before Cabinet. It could not be said that the document had been “submitted to Cabinet for its consideration” but it may be that the evidence is such that it could be said to have been “proposed by a Minister to have been so submitted”. If that is the finding of fact on the evidence, the document will come within the scope of s 34(1)(a)(i).
(footnotes removed)
In order to meet s 34(1)(a)(ii), a document must be a document brought into existence for the dominant purpose of submission for consideration by Cabinet. A “dominant purpose” is a purpose “... which was the ruling, prevailing, or most influential purpose”.[31]
[31] Sanderson at [62].
The use of the word ‘consideration’ rather than ‘deliberation’ indicates that the Cabinet exemption extends to a document prepared simply to inform Cabinet, the contents of which are intended merely to be noted by Cabinet.[32] Whether a document has been prepared for the dominant purpose of submission to cabinet is a question of fact. The relevant time for determining the purpose is the time the document was created.[33]
[32] Office of the Australian Information Commissioner Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth) (FOI Guidelines) at [5.66].
[33] Freedom of Information Guidelines at [5.67] and Fisse v Secretary, Department of Treasury (2008) 172 FCR 513 at [68] and [110].
The application of s 34(1)(d) - Documents 4, 9 and 10 – the draft NPPs
Services Australia contended that documents 4, 9 and 10 fall within s 34(1)(d) because they are drafts of documents that were:
(a)in the case of document 9, submitted to Cabinet for its consideration and brought into existence for the dominant purpose of submission for consideration by Cabinet;
(b)in the case of documents 4 and 10, proposed by a Minister to be submitted to Cabinet and brought into existence for the dominant purpose of submission for consideration by Cabinet.
The respondent contends that the question for the Tribunal is a matter of proof and that the evidence is insufficient to establish that documents 4, 9 and 10 fall within s 34(1)(d).

Documents 4, 9 and 10 are described as draft NPPs.[34] To support the claim that these documents are exempt, Services Australia relies upon the Cabinet Handbook and the evidence of experience from Ms McGregor with respect to the usual practice associated with NPPs and their submission to Cabinet. There was no doubt that Ms McGregor is an experienced public servant currently employed within the Cabinet Division of the Department of Prime Minister and Cabinet, but she was not so employed in the relevant years of 2015 and 2016 and therefore, she had no direct involvement with respect to these documents.
[34] See Exhibit 8, the updated schedule of documents subject to exemption claims.
As set out in the Cabinet Handbook,[35] the Cabinet Division is part of the Government that provides continuity and impartial support for operations at the centre of government. It is located in PM&C and is staffed and managed by officers of PM&C. The Cabinet Division exists to support the Prime Minister, the Cabinet Secretary and the chairs of Cabinet committees in ensuring that Government business is conducted in an effective and timely way and that proper collective consideration takes place. The Cabinet Division also maintains the collection of Cabinet documents for the current Government and preserves the Cabinet records of previous Governments.
[35] Cabinet Handbook 13^th edition at [15] and [16].
The Cabinet Handbook provides at [75] that matters coming forward to Cabinet need to comply with the Cabinet rules and procedures.[36] One of those rules is that only matters with authority can be considered by Cabinet. Authority may be provided in three ways; through agreement in writing from the Prime Minister or Cabinet Secretary, a Cabinet Minute, or being listed on a Cabinet Agenda.[37] Another rule is that any documents conveying substantive material to the Cabinet must be covered by a Submission, Memorandum, Short-Form Cabinet Paper or a Cabinet Presentation.[38] As to the appropriate form of document to bring a matter forward to Cabinet, the general principle is that the form needs to be fit for purpose to support the type of consideration necessary. The Cabinet Handbook at [93] provides that Cabinet submissions are proposals that seek agreement from the Cabinet to take a particular course of action and that those submissions must be sponsored by the Cabinet minister with portfolio responsibility.[39] The only specific reference to NPPs in the Cabinet Handbook is at [91] where an example is given of a complex portfolio issue that might at first be supported by a presentation for discussion which could lead to a second pass consideration at a later meeting supported by a Cabinet submission with detailed costed NPPs for decision.[40]
[36] Cabinet Handbook 13^th edition at [75].
[37] Cabinet Handbook 13^th edition at [76].
[38] Cabinet Handbook 13^th edition at [90].
[39] Cabinet Handbook 13^th edition at [93].
[40] Cabinet Handbook 13^th edition at [91].
Before her current role Ms McGregor had various roles in government including as an Assistant Secretary of the Cabinet Division from May to October 2013. Throughout her 28-year career in the public sector she has been exposed to Cabinet processes particularly since July 2019 when she has had direct responsibility for the operations of the Cabinet, including attending Cabinet meetings and preparing minutes of Cabinet meetings. She has over the course of her career been personally involved in the preparation and drafting of NPPs for government consideration.
Ms McGregor gave evidence in her affidavit of 8 May 2020 as to practice with respect to the submission of NPPs to Cabinet as follows:
(a)Cabinet committees provide the forum for detailed consideration and discussion of issues before full Cabinet consideration. One of the sub-committees of Cabinet is the Expenditure Review Committee which is responsible for advising Cabinet on budget priorities and for examining in detail all spending, revenue and savings proposals for the budget.
(b)A NPP is a proposal for a new policy that has a certain or potential financial impact. NPPs are prepared by a Minister’s department and must be:
(i)provided to the Department of Finance usually in the form of a ‘costing request’;
(ii)approved by the relevant responsible portfolio Minister; and
(iii)brought to the Expenditure Review Committee and the Cabinet for budget approval.
(c)Only a Minister can bring forward an NPP for consideration by the Cabinet.
As set out above, the respondent objected to parts of the affidavit evidence of Ms McGregor.[41] Some of those objections have been resolved by Services Australia not pressing some parts of Ms McGregor’s affidavit evidence. There was no objection to the specific evidence of Ms McGregor set out in the above paragraph but the respondent contends that in this particular case the evidence of usual practice from Ms McGregor is unreliable or “of very little weight” because she did not know how the relationships between the DHS and the Department of Social Services and their two Ministers worked.[42] The respondent points to a lack of evidence before the Tribunal saying in the oral closing address:
You do not have a word of whether or when the Minister for Social Services authorised the preparation of any of the new policy proposals in this case. And you do not have a word about whether or when the Minister for Social Services approved any of the new policy proposals being submitted to Cabinet.[43]
[41] See Annexure A to the Respondent’s Closing Submissions dated 17 December 2021.
[42] Oral closing address of the respondent on 23 December 2021 at Second Transcript page 139 lines 42 to 45.
[43] Oral closing address of the respondent on 23 December 2021 at Second Transcript page 138 lines 6 to 10.
I find that this evidence from Ms McGregor is logically probative and establishes the usual practice with respect to an NPP. Ms McGregor’s experience in the Cabinet Division qualifies her to give evidence as to usual practice and the weight to be given to her evidence is not diminished by any lack of understanding as to how the relationships between the DHS and the Department of Social Services and their two Ministers worked. Further, I note that her evidence is consistent with the procedures set out in the Cabinet Handbook. This evidence as to usual practice establishes a probability that the usual practice will be followed in the particular case.[44]
[44] See Cross on Evidence, eighth Australian edition, at [1130] and the sentence that was approved in Elliott v R (2007) 239 ALR 651 at [28].
I consider below the elements of s 34(1)(d) and it will be apparent that I consider there is logically probative evidence which supports my conclusions.
Document 9
Document 9 will be exempt from disclosure under s 34(1)(d) if Services Australia establishes that:
(a)it was a draft of NPP1;
(b)NPP1 was submitted to Cabinet for its consideration; and
(c)NPP1 was brought into existence for the dominant purpose of submission for consideration by Cabinet.
Is Document 9 a Draft of NPP1?
Ms McGregor deposed in her affidavit of 8 May 2020 that document 9 is a draft version of NPP1. She explained in her evidence in chief on 22 June 2021 that she considered it was a draft NPP because it was in the format of an NPP and that it is the NPP template.[45]
[45] First Transcript page 99 lines 3 to 4.
Ms McGregor then deposed in her affidavit of 21 July 2021 that:
[13] I have subsequently compared NPP1 [omitted] against Document 9. Based on my comparison, I can now say that the contents of Document 9 are nearly identical to those of NPP1 [omitted]. The only differences are: …
[14] Having now undertaken this comparison I can now confirm with great certainty that Document 9 is an extremely well advanced draft version of NPP1…
Ms McGregor was cross-examined further on 2 December 2021 but, not surprisingly, her evidence that document 9 was a draft was not challenged. Indeed, counsel for the respondent accepted in his opening address to the Tribunal that “Document 9 is a draft of a document which has been submitted to Cabinet”.[46]
[46] First Transcript page 24 lines 38 to 39.
I have carried out the same comparison of document 9 and NPP1. It is apparent to me from looking at the two documents that document 9 is a draft of NPP1. The layout of the two documents is very similar. The same tables are included in both documents with very minor changes to some of the numbers in those tables. As Ms McGregor noted, they both have the same title. I agree with Ms McGregor that document 9 is an extremely well advanced draft version of NPP1. Some additional text is included in NPP1 but most of the text in document 9 is the same as in NPP1.
In addition to Ms McGregor’s evidence as to practice in relation to an NPP, there is more direct evidence from Mr Britton who was employed in the DHS in 2015 and had the role of Branch Manager of the Customer Compliance Branch.[47] He deposed in his 8 May 2020 affidavit that document 9 relates to the first iteration of welfare payment compliance measures, namely the original package of measures called ‘Strengthening the Integrity of Welfare Payments’, which was delivered under the 2015-16 Budget.[48] The document was prepared in the context of seeking Budget expenditure approval in the 2015-16 Budget.[49] It was created in March 2015.[50] Mr Britton described document 9 as an NPP based on his experience and on the directions he was given in regard to the preparation of it.[51] Whilst Mr Britton accepted in cross-examination that he was not the person who created document 9,[52] he was involved in many conversations in regards to the concepts contained within it and provided advice to his managers and supervisors in relation to the development of it.[53] Mr Britton recalled that it was Mr Mark Withnell who was his line manager who told him that document 9 was to be produced and with whom he had many conversations “as part of concept through to finalisation”.[54] The supplementary T documents contain emails to and from Mr Withnell on 10 and 11 March 2015 which show the involvement of officers from the DHS including Mr Britton in the preparation of NPP1. On the afternoon of 10 March 2015, a draft NPP was circulated by email within the DHS.[55]
[47] Exhibit 2, Affidavit of Scott Britton, dated 8 May 2020 at [4] and First Transcript page 75 lines 6 and 7.
[48] Exhibit 2, Affidavit of Scott Britton, dated 8 May 2020 at [9(a)] and [11].
[49] Exhibit 2, Affidavit of Scott Britton, dated 8 May 2020 at [12].
[50] See Exhibit 8, the updated schedule of documents subject to exemption claims and First Transcript page 85 lines 42 to 45.
[51] First Transcript page 66 lines 41 to 46.
[52] First Transcript page 139 at line 18.
[53] Examination-in-chief of Scott Britton, First Transcript page 67 lines 3 to 9.
[54] First Transcript page 86 lines 10 to 26.
[55] Exhibit 10, ST Documents, ST29, internal DHS email to Withnell and Golightly copied to Britton dated 10 March 2015.
It is apparent from the evidence that NPP1 underwent various iterations as it was progressively developed. Document 9 was the draft version created as at 22 March 2015.[56]
Was NPP1 Submitted to Cabinet?
[56] See Exhibit 8, document 9 in the updated schedule of documents subject to exemption claims.
As to whether NPP1 was submitted to Cabinet for its consideration, Ms McGregor gave evidence that NPP1 was considered by the Expenditure Review Committee.[57] Cabinet includes a committee of Cabinet and therefore includes the Expenditure Review Committee. It was not challenged that NPP1 was submitted to Cabinet for its consideration and I find that it is so. Section 34(1)(a)(i) is satisfied.
Was NPP1 Brought into Existence for the Dominant Purpose of Submission for Consideration by Cabinet?
[57] First Transcript page 126 line 40: XXN of Ms McGregor.
The respondent contends in relation to document 9 that Services Australia has failed to prove that NPP1 was brought into existence for the dominant purpose of submission for consideration by Cabinet. The respondent says that there is no evidence that the portfolio Minister (the Minister for Social Services) gave authority for NPP1 to be developed.
I have found above that document 9 is a draft of NPP1 and that NPP1 was considered by Cabinet (as defined in s 4(1) of the FOI Act). The controversy relates to the purpose for which the document was brought into existence.
The time at which the document was brought into existence is the time at which the purpose must be ascertained: Fisse.[58]
The effect of Services Australia’s submission[59] as to dominant purpose is that the very nature of an NPP as deposed to by Ms McGregor in her affidavits and confirmed in her oral evidence is that it is a document created for the dominant purpose of submission for consideration by the Cabinet.
[59] Applicant’s Closing Submissions at [13].
When considering this issue as to dominant purpose I rely upon the evidence from Ms McGregor and the Cabinet Handbook with respect to the Cabinet process together with the direct evidence from Mr Britton. The evidence from Ms McGregor read together with the Cabinet Handbook with respect to the Cabinet process establishes that an NPP:
(a)is a proposal that seeks agreement from the Cabinet for a new policy which has a potential financial impact;
(b)must always include costings and is assessed as part of the Budget process;
(c)is a particular Cabinet submission that is subject to the rules and procedures in section 5 of the Cabinet Handbook;
(d)is brought to the Expenditure Review Committee and the Cabinet for their consideration and approval;
(e)is not prepared for any purpose other than to inform Cabinet’s deliberations and decisions; and
(f)is not considered outside of the Budget process.
The direct evidence from Mr Britton is that document 9 (which was a well advanced draft of NPP1) was prepared in the context of seeking Budget expenditure approval in the 2015-16 Budget.[60] Mr Britton gave evidence under re-examination[61] about his conversations with his line manager in 2015 with respect to “the development of NPPs which would then be considered” and the level of confidentiality applied “in the context of the material being potentially or actually Cabinet-in-Confidence”. Services Australia relied upon various internal emails[62] of the DHS on 9 and 10 March 2015 which related to the finalisation of costings in relation to NPP1 before the costings were sent to the Department of Finance as part of the formal costing process. Mr Britton was copied into some of those emails. The email of 9 March 2015 attaches costings “for your clearance” and says that the “costing needs to be sent to Finance tonight if at all possible”. Clearance for the costings to go to the Department of Finance is provided later that day. On the afternoon of 10 March 2015, the draft NPP is circulated within the DHS. Mr Britton gave evidence that these emails were talking about costings for NPPs and the engagement with specific stakeholders.[63]
[60] Exhibit 2, Affidavit of Scott Britton, dated 8 May 2020 at [12].
[61] Second Transcript page 92 lines 27 to 37.
[62] Exhibit 10, ST Documents, ST 29, internal DHS email dated 10 March 2015.
[63] Second Transcript page 94 lines 5 to 7.
These emails provide evidence consistent with the practice deposed to by Ms McGregor in paragraph 33(c) of her affidavit of 8 May 2020 that NPPs are prepared by a Minister’s department and must be:
(a)provided to the Department of Finance usually in the form of a ‘costing request’;
(b)approved by the relevant responsible portfolio Minister; and
(c)brought to the Expenditure Review Committee and the Cabinet for budget approval.
I am satisfied on the evidence that NPP1 was brought into existence for the dominant purpose of submission for consideration by the Cabinet. This is the very purpose for which any NPP is created. An NPP is a Cabinet submission that seeks agreement from the Cabinet for a new policy which has a potential financial impact. NPP1 is such a document. I am satisfied that, consistent with that purpose, a draft of NPP1 was in fact submitted to and considered by the Expenditure Review Committee.
I have had the opportunity of reading document 9 and NPP1.[64] Without disclosing their contents, I can say that included in NPP1 is a clear statement as to the source of the authority for the NPP, which authority complies with the procedure set out in [76] of the Cabinet Handbook. It is apparent from my reading of NPP1 that it is a proposal that seeks agreement from the Cabinet for a new policy which has a potential financial impact and that it is a document which was brought into existence for the dominant purpose of submission for consideration by Cabinet.
[64] Section 58E(2) provides for inspection by the Tribunal.
I note that Ms McGregor deposes in her 8 May 2020 affidavit at paragraph 49(a) that “as an NPP, NPP1 would have been brought into existence for the dominant purpose of submission for consideration by the Cabinet”. It is hardly surprising that Ms McGregor held such an opinion given her experience and understanding of NPPs. I have reached that same conclusion without relying upon this particular statement in her affidavit. Ms McGregor’s opinion about the very matter that the Tribunal has to decide, namely as to dominant purpose, should not be regarded as evidence providing support for that conclusion and it should not be relied upon.[65] I raise this because there was an objection made with respect to this evidence from Ms McGregor.[66]
[65] See Fisse v Secretary, Department of Treasury (2008) 172 FCR 513 per Buchanan J at 535 [71] and per Flick J at 550 [130].
[66] See Annexure A to the respondent’s closing submissions dated 17 December 2021.
During her examination-in-chief,[67] Ms McGregor explained her affidavit evidence[68] as to whether an NPP would have been brought into existence for the dominant purpose of submission for consideration by the cabinet:
I say that because that is the reason for NPP’s being prepared. That an NPP is prepared, firstly, with authority. It doesn’t get prepared without authority to be prepared. And also, that document contains relevant information in terms of what you would include in an NPP.
[67] First Transcript page 99 lines 6 to 12.
[68] Exhibit 3A, Open Affidavit of Leonie McGregor dated 8 May 2020 at paragraph 49(a).
There was no objection[69] raised with respect to paragraph 33(c) of Ms McGregor’s affidavit as to the nature of NPPs and the practice with respect to them as part of the Budget process. That practice is consistent with the actual process evidenced by the emails on 9 and 10 March 2015. Whilst Ms McGregor had no direct involvement in the preparation of NPP1 and in that sense had no direct knowledge of the purpose for which this particular NPP was created, she does have substantial experience about Cabinet and Budget processes and practice associated with NPPs. I have accepted that evidence as to practice from Ms McGregor and her knowledge as to the nature of an NPP. That evidence, together with the evidence from Mr Britton and the March 2015 emails, provides the foundation for my finding as to dominant purpose.
[69] See Annexure A to the respondent’s closing submissions dated 17 December 2021.
Conclusion as to Document 9
Having considered the evidence from Mr Britton and Ms McGregor and having inspected document 9 itself, I am satisfied that document 9 is an exempt document under s 34(1)(d) because it is a draft of NPP1 which was submitted to Cabinet for its consideration and because it was brought into existence for the dominant purpose of submission for consideration by Cabinet.
Documents 4 and 10
Documents 4 and 10 are both dated 18 November 2015.[70] It is convenient to deal with them together.
[70] Exhibit 8, the updated schedule of documents subject to exemption claims.

It is apparent that there is a significant amount of information available in public about the operation of Robodebt and related events such as the Federal Court action. This information would include and reflect the decisions made by Government but the documents the subject of this application are deliberative documents that preceded any decisions of government later made and implemented. I have compared the information upon which there was deliberation by Cabinet with the information before the Tribunal as a result of official disclosure of the Robodebt policy. It is apparent to me from that comparison that there are significant and real differences between, for example, the estimates of financial implications of the Robodebt policy disclosed in the budget statements and the estimates of financial implications that went before Cabinet in the NPPs.
It is apparent that there was a process of iterative change including the deliberation before Cabinet which resulted in a finalised policy at the time of the announcement through the budget statements. I emphasize that there was a process of iterative change because it reflects the ongoing deliberation and establishes that the proposals in the form that they were put to Cabinet in the NPPs were not officially disclosed. For that reason, I reject the respondent’s contention that the NPPs were simply adopted and then officially announced. That is not what happened.
The publicly available information does not disclose the deliberations which were the subject of the NPPs. Those NPPs did not contain details of the decisions of government which were later announced and implemented and which were the subject of the significant information that was disclosed about Robodebt. An NPP proposes a policy for deliberation by Cabinet. There is some overlap between the information contained in the NPPs and the information that was officially disclosed because they both deal with the same subject matter but it was the outcome of the deliberations which was disclosed and not the deliberations themselves. I accept the evidence from Ms McGregor that portfolio budget statements and any MYEFO updates publish only the agreed budget measures and appropriations.[156] The letter from the Minister for Social Services[157] submitting the portfolio budget statements for the 2015/16 budget said:
These statements have been developed, and are submitted to Parliament, as a statement on the outcomes for the portfolio.
(emphasis added)
[156] Exhibit 3A, Open Affidavit of Leonie McGregor dated 8 May 2020, at [40].
[157] Exhibit 6, Respondent’s Bundle of Documents, page 3 of R1.
There was no disclosure of the deliberative process by which the budget measures and appropriations were considered. The budget statements and other announcements did not disclose that Cabinet considered the particular information contained in documents 1 to 10 and 12. The government through numerous avenues disclosed the decisions it had made by way of policy announcements. Those announcements related to finalised policies as opposed to proposed policies.
Even if I were to accept the respondent’s interpretation of the condition in s 34(3), which I do not, I would still find that announcements by the Government as evidenced by material before the Tribunal did not disclose the existence of the deliberations, let alone the deliberations themselves. There was no evidence before the Tribunal of an announcement by Government that there had been deliberations. That is not surprising; the announcements disclosed the decisions made by Government, namely the outcome of the deliberations and not the deliberations themselves.
The application of s 34(6) - purely factual material - documents 1 to 10 and 12
Documents 4, 9 and 10, being draft NPPs that reflect the deliberations of Cabinet, contain deliberative matter as opposed to purely factual material.
The evidence from Mr Britton which I accepted was that the costing spreadsheets (documents 1, 2 and 3) were used to provide the underpinning assumption supporting an NPP for the purposes of costing in relation to departmental and administered costs.[158] The DHS and other agencies contributed to those costings which were then sent to the Department of Finance and ultimately were fed into draft and finalised versions of NPPs.
[158] First Transcript page 67 lines 10 to 31; First Transcript page 69 lines 1 and 2 and First Transcript page 69 line 44 to First Transcript page 70 line 1.
The draft costing requests (documents 5, 6, 7 and 8) were not dissimilar to the costings spreadsheets in that they contained calculations of administered savings.[159]
[159] First Transcript page 69 lines 3 to 6.
With respect to document 12, I have found that this is not an exempt document under s 34(3) and therefore I do not need to consider the exception with respect to document 12. If I am wrong about that, then the question would arise as to whether the exception in s 34(6) applies. I would find that document 12 does not contain purely factual material because it consists of projections relating to the number of staff and the amount of time the staff would spend doing certain activities associated with the NPP. The material in document 12 is not historical data or information. The FOI Guidelines at [5.77] provide that a projection would not usually be considered purely factual.
The costing details in documents 1, 2, 3, 5, 6, 7 and 8 which were fed into the NPPs were assumed projections and narrative relating to the proposed measures as opposed to historical factual material. The Freedom of Information Guidelines at [5.77] provide that a projection or prediction of a future event would not usually be considered purely factual.
I am not satisfied that the information in any of the documents 1 to 10 and 12 consists of purely factual material.
Further, even if I am wrong with respect to the purely factual material, the exception in s 34(6) does not apply to documents 1 to 10 because as I have already found, the disclosure of the information in these documents would reveal cabinet deliberations the existence of which have not been officially disclosed.
PUBLIC INTEREST TEST
Documents 1 to 10 and 12 – section 47C
Section 47C would only have application if I am wrong with respect to my findings pursuant to s 34(1)(d) and s 34(3).
Are the documents conditionally exempt?
Section 47C(1) sets out the general rule prescribing when a document will be conditionally exempt on the basis it will disclose deliberative processes:
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth; or
(d) the Government of Norfolk Island.
The exceptions to the general rule are set out in ss 47C(2):
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
The respondent accepts that documents 1 to 10 are deliberative process documents which are conditionally exempt under s 47C but says that disclosure is in the public interest under s 11A.[160] I am satisfied that documents 1 to 10 are conditionally exempt under s 47C.
[160] Respondent’s oral opening at First Transcript page 29 lines 26 to 46 and the Respondent’s Closing Submissions at [162] to [165].
Documents 4, 9 and 10 are draft NPPs that comprise advice and recommendations about proposed measures prepared for the purposes of obtaining policy and budget approvals relating to the administration of welfare payments under social security law.
Section 47C has a broad application because it exempts (conditionally) documents the disclosure of which would disclose matter relating to opinion, advice or recommendation. Section 47C makes a clear distinction between disclosure of matter in the nature of opinion, advice or recommendation (on the one hand) and the disclosure of matter relating to opinion, advice or recommendation (on the other). This distinction was applied by the Full Court of the Federal Court in Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301 when considering a similarly worded provision at 309:
In failing to consider whether or not disclosure of the documents would disclose matter relating to, as distinct from matter in the nature of, opinion, advice or recommendation or consultation or deliberation as referred to in s 36(1)(a), the Tribunal erred.
The use of the expression ‘relating to’ denotes some connection or relationship. It is an expression of wide and general import[161] which “gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends”.[162] Overall, the position judicially adopted has been that the operation of the expression ‘relating to’ is determined by the statutory context and purpose.[163]
[161] Fountain v Alexander (1982) 150 CLR 615 at 629.
[162] Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 when considering the expression ‘in respect of’.
[163] Oceanic Life Ltd v Chief Commr of Stamp Duties (1999) 168 ALR 211 at 225.
Documents 1, 2, 3, 5, 6, 7 and 8 comprise costing details including narrative and assumed financial projections for the proposed measures. There is a real connection between these projections and the deliberations of Cabinet because the projections were fed into the NPPs. The narrative relates to the proposed measures. I have already found above that the disclosure of information in these documents would reveal Cabinet deliberations.
Document 12 – is it conditionally exempt?
I note that with respect to document 12, the respondent makes no concession but requests the Tribunal to determine if satisfied that it is conditionally exempt and then to consider the public interest test. When considering s 34(3) above I found that document 12 should not be exempt from disclosure because the information contained within it does not reveal the Cabinet deliberations. However, the test in s 47C is not as narrow because ‘relating to’ is an expression of wide import which denotes some connection or relationship.
Ms McGregor deposes in her 8 May 2020 affidavit that document 12 contains information (including costings) relating to NPP3. She gave oral evidence that document 12 incorporates costing assumptions which form part of the deliberative process particularly in relation to the budget.[164] Mr Britton deposes in his affidavit of 8 May 2020 that document 12 is a costing document which relates to document 10 (a draft of NPP3). When asked about document 12 in examination-in-chief, Mr Britton said that he did not “recall this document precisely” but that it “appears to be a supporting document that confirm[s] the assumptions that would potentially inform the preparation of the template”.[165] Under cross-examination, he said that it was an internal working document “identifying our internal thinking as we were preparing that NPP”.[166]
[164] First Transcript page 107 lines 7 to 17.
[165] First Transcript page 70 lines 9 to 13.
[166] First Transcript page 83 lines 12 to 23.
The evidence establishes a connection between the information in document 12 and the deliberations of Cabinet as reflected in NPP3, but it is not strong. Further, as a working document that identifies “our internal thinking”, I find that document 12 relates to the deliberative processes involved in the function of an agency, namely the DHS as it then was. I am prepared to accept the very limited evidence from Ms McGregor and Mr Britton that the costing assumptions have the relationship (required under s 47C) with the deliberative processes of both the DHS and the Cabinet.
The s 47C(2) exceptions
I turn now to the exceptions in s 47C(2) which provides that deliberative matter does not include operational information and purely factual information.
Documents 1 to 10 and 12 do not comprise ‘operational information’ as defined in s 8A of the FOI Act. They do not comprise ‘purely factual material’ for the reasons I have already found above when considering the exception in s 34(6). Documents 1 to 10 and 12 are conditionally exempt under s 47C.
Factors for and against disclosure
Services Australia must give the applicant access to the conditionally exempt documents pursuant to s 11A(5) unless access would be contrary to the public interest. A decision maker cannot withhold access to a document simply because it is conditionally exempt. Disclosure of conditionally exempt documents is required unless in the particular circumstances and, at the time of the decision, there is, on balance, countervailing harm which offsets the inherent public interest of giving access.[167]
[167] FOI Guidelines at [6.7].
For the purposes of working out whether access would, on balance, be contrary to the public interest, s 11B sets out factors favouring access and factors that are irrelevant and further obliges the decision-maker to have regard to the Freedom of Information Guidelines.
Services Australia contends that there is a public interest in the protection of Cabinet confidentiality which would be undermined if the documents in issue were released. Services Australia contends that the disclosure of the subject documents would prejudice the protection of Cabinet confidentiality by disclosing the substance of matters that were considered by Cabinet or the ERC.
The respondent accepts[168] that the law recognises that the public interest in the confidentiality of Cabinet processes means that there exists a public interest against requiring the Government to disclose documents which form part of those processes. However, that is not the end of the matter; as the High Court said in Commonwealth v Northern Land Council:[169]
Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. But, whatever the position may have been in the past, the immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence.
(footnotes removed)
[168] Respondent’s Closing Submissions dated 17 December 2021 at [172].
[169] (1992) 176 CLR 604 at 616.
It is apparent from the authorities relied upon by the respondent[170] and the terms of Part 6 of the FOI Guidelines that a balancing exercise is required which weighs up the factors favouring disclosure and the factors against disclosure. The balancing exercise takes place after the determination that the documents are ‘deliberative’ and are therefore conditionally exempt under s 47C.[171] The FOI Guidelines provides an example of this process in the context of whether harm arises from disclosure:
6.56 While identifiable harm resulting from disclosure is not a specific factor in determining whether a document may be categorised as ‘deliberative’, it may be relevant subsequently when deciding where the balance of the public interest lies. If, in a particular case, a deliberative document may be released without appreciable harm resulting, this would tend to indicate that it would not be contrary to the public interest to disclose the document and therefore it must be released to the applicant.
[170] For example, Kamasaee v Commonwealth of Australia & Ors (No. 5) [2016) VSC 595 at [22].
[171] FOI Guidelines at [6.7].
The FOI Guidelines consider the interaction between s 47C and the Cabinet exemption in s 34:
6.86 In some cases, a document may contain deliberative matter that relates to Cabinet in some way but is not exempt under the Cabinet exemption in s 34. An example would be a document containing deliberative matter that is marked ‘Cabinet-in-confidence’ but nonetheless does not satisfy any of the exemption criteria in s 34. Disclosing a document of this kind would not necessarily be contrary to the public interest only because of the connection to Cabinet deliberations. For example, disclosure is less likely to be contrary to the public interest if:
·the document contains a deliberative but otherwise non-sensitive matter about a policy development process that has been finalised, and
·the government has announced its decision on the issue.
Document 12 is an example of the type of document referred to in [6.86] of the FOI Guidelines quoted above because it contains deliberative matter that relates to Cabinet in some way, but I have found that it is not exempt under the Cabinet exemption in s 34. Document 12 should therefore be distinguished from documents 1 to 10 which have been found to be Cabinet documents either under s 34(1) or s 34(3). It is an important distinction for the purpose of considering the public interest because I have found that, whilst the information in document 12 has a connection with the deliberations of Cabinet, the disclosure of document 12 would not reveal a Cabinet deliberation.
The FOI Guidelines reflect the respondent’s contention, which I accept, that the public interest in disclosure may prevail even where the documents have a connection to Cabinet deliberations. Nevertheless, it remains the case with respect to documents 1 to 10 that the public interest, within the context of s 47C, in maintaining the principle of Cabinet confidentiality will be given significant weight:
… it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made.[172]
[172] Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615.
Services Australia relied upon a series of cases dealing with public interest immunity to support the argument that the principle of Cabinet confidentiality should be given determinative weight under s 11B when working out whether access should be given to conditionally exempt documents. I accept that these cases provide a helpful analysis with respect to the principle of Cabinet confidentiality, but it is important to remember that the weighing up exercise in the public interest immunity cases requires an analysis of the public interest in the advancement of justice which is not the same as the weighing up exercise required by the FOI Act. It is also important to remember that these cases will not necessarily apply to document 12 because Cabinet confidentiality would not be breached upon its disclosure. With those qualifications in mind, I will now consider those public interest immunity cases relating to Cabinet and its deliberations.
In Lanyon v Commonwealth (Lanyon),[173] Menzies J stated:
… governmental process directed to obtaining a cabinet decision upon a matter of policy and cabinet's decision upon that matter should not, in the public interest, be disclosed by the production of cabinet papers including what I would describe as papers which have been brought into existence within the governmental organization for the purpose of preparing a submission to cabinet. Such papers belong to a class of documents that, in my opinion, are of a nature that ought not to be examined by the Court, except, it may be, in very special circumstances.
[173] (1974) 129 CLR 650 at 653.
This decision of Lanyon was cited by Gibbs ACJ in Sankey v Whitlam[174] as authority for the proposition that “papers brought into existence for the purpose of preparing a submission to Cabinet” belonged to “a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document”. Lanyon was also cited in Sankey v Whitlam (at 57) by Stephen J (with whom Aickin J agreed), and (at 95) by Mason J, without any suggestion that Menzies J had given too wide an ambit to the category of Cabinet papers. Indeed, Mason J said (at 99):
To ensure that the protection given to Cabinet proceedings is effective, documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet must be protected.
[174] (1978) 142 CLR 1 at 39.

In Commonwealth v Northern Land Council[175] the High Court said at 617 to 618:
… the classification of claims for immunity into ‘class’ claims and ‘contents’ claims is indeed often rough and imprecise. In many so-called ‘class’ cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial.
Where, however, a document clearly falls within a class which attracts immunity, a different approach is called for. Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example. Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. However, as we have said, the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. Nevertheless, where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class. In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations.
[175] (1992) 176 CLR 604.
In Spencer v Commonwealth[176] the Full Court concluded:
[32] … True it is that documents recording deliberations of Cabinet have “a pre-eminent claim to confidentiality”. But other documents including “papers brought into existence for the purpose of preparing a submission to Cabinet” and “documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet” are recognised classes prima facie entitled to protection on the grounds of public interest immunity.
[176] (2012) 206 FCR 309.
Services Australia relies upon the evidence of Ms McGregor to support the contention that there is a public interest in the protection of Cabinet confidentiality which would be undermined if the documents in issue were released. Appropriate weight should be given to her evidence:
In a case where the court has to weigh the competing public interests, it is required, in doing so, to give weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document. In Sankey v Whitlam (at 44) Gibbs ACJ said that the court is “required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest”, and he reiterated the point, using the expression “full respect” (at 46). In the same case, Stephen J quoted (at 59-60) a statement by Lord Pearson to similar effect, and Mason J said (at 96) that the court “will give weight to the Minister's opinion that the documents should not be produced”. Since the public interest on which the immunity is based is concerned with the protection of the inner workings of government, this proposition is inevitable.[177]
[177] New South Wales v Ryan (1998) 101 LGERA 246.
Ms McGregor said in her 8 May 2020 affidavit that it is a long-established principle of responsible government that deliberations of Cabinet are confidential and should be protected. She expresses the view that the release of Cabinet related documents would significantly interfere with the effective operation of Cabinet and therefore decision-making and policy development in Australia. I accept this evidence from Ms McGregor. The public interest in not disclosing Cabinet related documents 1 to 10 is supported by the authorities set out above starting with Lanyon.
There is also a public interest in not disclosing document 12 because it contains projections of a deliberative nature made at the agency level. Members of Government agencies may be dissuaded from engaging in deliberative processes and making appropriate projections if those deliberations or projections could be disclosed to the public. This is a similar argument to the need to create an environment in which persons feel free to speak their mind and make suggestions without concern that those matters may be disclosed at a later time. I give very little weight to this public interest factor against disclosure because the nature of the projections in document 12 are such that if released they would have minimal impact and would not disclose any deliberations that would cause concern for those involved in the agency. I consider that the material in document 12 is non-sensitive matter with an insignificant connection to a policy development process that has been finalised. Further, I note that the Government announced many years ago its decision with respect to the Robodebt policy and therefore disclosure is less likely to be contrary to the public interest.[178]
[178] See FOI Guidelines at [6.86].
Having identified the public interest in not disclosing the documents in question, I must weigh that factor against those factors that favour granting access to the documents. Section 11B(3) provides a non-exhaustive list of factors that favour access:
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
I accept the respondent’s contention that the factors in s 11B(3)(a), (b) and (c) all favour access. Disclosure of the documents would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities.
I consider that disclosure of the documents would inform debate on a matter of public importance. There is a significant public interest in Robodebt particularly because of the adverse impact it had on so many people. Although the documents relate to a period in 2015 to 2017 the public interest was maintained beyond that period as reflected in the class action in the Federal Court commenced in 2019 and resulting in a settlement in 2020. More recently, the Royal Commission into the Robodebt Scheme began which reflects that there is a current public interest in Robodebt.
I consider that disclosure of the documents would promote effective oversight of public expenditure, but I give less weight to this as a factor for document 12 because it does not contain any financial calculations. The savings forecast from the PAYG data matching component of Robodebt were not achieved and there were a significant number of people who received refunds for debts raised.
Balancing the public interest
Whilst accepting that the above factors favour granting access, I give those factors less weight with respect to documents 1 to 10 because they disclose deliberations of Cabinet as opposed to finalised decisions of Government. Indeed, the decisions which implemented the Robodebt policy have been disclosed and, as established by the evidence tendered by the respondent, have been the subject of much discussion and controversy including Court proceedings by way of a class action. There is no doubt that the evidence tendered by the respondent establishes that there is a significant amount of information in the public domain about Robodebt and its shortcomings. However, the evidence of the publicly available information, as I have already found, does not disclose the deliberations of Cabinet.
In terms of weighing up the factors for and against granting access to documents 1 to 10, I give greater weight to the need to maintain confidentiality over Cabinet related documents particularly in circumstances where there is significant material in the public domain relating to Robodebt. I conclude that granting access to documents 1 to 10 would, on balance, be contrary to the public interest.
In terms of weighing up the factors for and against granting access to document 12, I consider that the public interest factors favouring access are significant and that they are not outweighed by the minimal public interest associated with not disclosing material relating to deliberative process of the DHS.
DECISION OF THE TRIBUNAL
With respect to documents 4, 9 and 10, Services Australia has satisfied the onus of establishing that the Tribunal should give a decision adverse to Mr Warren. With respect to documents 1, 2, 3, 5, 6, 7 and 8, Services Australia has satisfied the onus of establishing that the decision of the Information Commissioner is not justified. With respect to document 12, Services Australia has failed to satisfy the onus of establishing that the decision of the Information Commissioner is not justified.
For these reasons, the decision of the Tribunal is to:
(a)affirm the Information Commissioner’s review decision in relation to documents 4, 9, 10 and 12; and
(b)set aside and substitute the Information Commissioner’s review decision in relation to documents 1, 2, 3, 5, 6, 7 and 8 and find that these documents are exempt from disclosure under the FOI Act.

I certify that the preceding 263 (two hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..........................[sgd]..............................................
Associate
Dated: 2 December 2022

Date(s) of hearing:
21, 22 and 23 June 2021, 22 October 2021 and 2 and 23 December 2021

Counsel for the Applicant: A. Berger KC

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondent: T. Brennan SC and H. Cooper

Solicitors for the Respondent: Maurice Blackburn Lawyers

Date(s) of hearing:	21, 22 and 23 June 2021, 22 October 2021 and 2 and 23 December 2021
Counsel for the Applicant:	A. Berger KC
Solicitors for the Applicant:	Minter Ellison
Counsel for the Respondent:	T. Brennan SC and H. Cooper
Solicitors for the Respondent:	Maurice Blackburn Lawyers