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

13 In the applicant's legal contentions, the following concession, in my view, is correctly made :

The Applicant concedes that to the extent that the disputed documents are correctly described in the Schedule attached to the section 49 Statement filed herein (which the Respondent must prove to the Tribunal), it consists of 'matter in the nature of opinion, advice or recommendation' and falls within subparagraph (a) of section 30(1) of the Act.

14 Thus, the sole question for me to decide in relation to s 30(1) is whether the release of the document would be contrary to public interest. It is also conceivably possible that I may have to decide questions in relation to s 30(3) as to whether the document contains purely factual material and pursuant to s 50(4) in relation to the public interest override and pursuant to s 25 as to whether any material may be excised from the document if some or part of the exemption is made out.

15 It is clear on the authorities that ascertaining the public interest almost always involves a balancing exercise of competing interests. Judge Fagan summarised this general approach in Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483 at 487-8 when his Honour stated :

There are only two aspects of the public interest which fall to be considered. One is the public interest in persons having access to the documents, including confidential documents, which concern them but which are in the hands of an agency. The second is the public interest in efficiency and economical conduct of a government agency. ...

must prove that the disclosure will be contrary to the public interest after balancing the two considerations.

(See Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 879).

16 In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1977) 189 CLR 520, the High Court, in considering a defamation case, had cause to consider what in fact was the public interest. At pp 570-71, the Court quoted with approval from McHugh J in Stephens v Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211 at 264 :

As McHugh pointed out in Stephens, that has come about in a number of ways :

'In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally'....

Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.

17 Mr Smale, who appeared for the applicant, submitted that the interest the public has in receiving information about why a government function or power has not been exercised has even greater force when the failure to exercise that power or function constitutes the breaking of an unequivocal policy made in an election in which the government came to power. Mr Smale then referred to the policy in relation to an inquiry, which I have referred to above (see paragraph 5), and also referred to a further policy document entitled Australian Labor Party - Community Services - A new partnership with the community - Steve Bracks - A new style of leadership. On p 19 of that document it is stated :

A Victorian Labor government will hold a Parliamentary Inquiry into past Victorian adoption practices, particularly in the period post Word War 2 until the proclamation of the 1984 Adoption Act.

18 Mr Smale then submitted that the public has an even greater interest in circumstances where no credible reason has been given by the government for its failure to implement its policy.

19 In a letter dated 2 October 2003, the Hon Cheryl Garbutt, Minister for Community Services, attempted to explain the reasons for failing to hold an inquiry into past adoption practices. She wrote :

I acknowledge your concerns regarding past adoptions, and your disappointment that an Inquiry will not proceed. The Adoption Legislation Review Committee, which reported in March 1983, was an extensive review of adoption law and practice and the Committee Report included a detailed examination of issues around consent to adoption. This Review acknowledged that the interests of the natural parents had not been protected in the past, and led to the significant reforms of the current Adoption Act 1984.

You have raised issues regarding ARMS meeting with the previous Minister. This meeting was held in May 2002 within the context of the twentieth anniversary of the founding of this organisation. In addition, Origins has met with senior Department of Human Services staff, and with my Chief of Staff to discuss alternatives to an Inquiry.

Adoption is a complex matter, and I am aware that there is a range of views within the adoption community. The Government has decided that an Inquiry is not the best response to the issues you raised, and will not proceed.

20 Mr Smale submitted that the reasons given by Minister Garbutt cannot explain why there has been a change of mind since the government came to power because the facts relied upon in that letter would have been well known to the Labor Party at the time that the policies were written. That is, it would have been known that there was an Adoption Legislation Review Committee which reported in March 1993 and it also would have been known that there was a range of views within the adoption community. He thus concluded that the letter does not explain the government's change of view. He then said that the public has an interest to see all documents which it can in order to try and ascertain what caused that change of view and even if the documents themselves do not show what the change of view was, it would at least to some extent clear the air. While, in my view, the document in question does not really go to the question of why the government did change its view, in fact the release of this document would have some effect clearing the air.

21 Ms Coombs, who appeared for the respondent, correctly stated that the public interest concern is as the public as a whole and not the interests of an individual or group of individuals. (See Pratt v Psychologists Registration Board of Victoria (unreported, AAT Vic Judge Wood P, 28 April 1998). In this particular instance, in my view, the issue of past practices relating to adoption has very wide interest in the community, it is not just an interest relating to particular individuals. Further, the wider community also has an interest in ensuring that wrong past practices (if there were any) are aired.

22 Ms Coombs also stated that the whole of the circumstances must be examined, including the release of many documents which has already taken place and the discussions between the Department and organisations and individuals. She stated that it was very important that the deliberative process be protected. In my view, this submission begs the question. It is already conceded that s 30(1)(a) protects the deliberative process. However, s 30(1)(b) makes it clear that such documents can only be exempt if disclosure of the same would be contrary to public interest. Therefore, to say that these documents should be protected because they are part of the deliberative process is a circular argument that ignores sub-paragraph (b).

23 Ms Coombs said that the document in question is a handwritten document which discusses options. As such, she said that it refers to a ministerial briefing, re-writing the briefing document and possible s 32 options. (As s 32 has not been claimed as an exemption here, I will not discuss the same further). Ms Coombs went on to say that because the document was handwritten, it was clearly informal and a draft for discussion purposes only. She therefore concluded that there could be no public interest in having the document released as it was not government policy and may mislead and be mischievous. On the other hand, Mr Smale submitted that there is no evidence that the document is a draft, and that if it creates a field of discussion, the same could have enormous influence and it is in the public's interest to know what may have influenced the government's decision not to hold an inquiry. He further stated there is no evidence that the applicant or anyone else would be mischievous in the use of the document. I agree with the submission of Mr Smale.

24 Ms Coombs commented that while it is not clear as to where the document fell within the steps of ministerial briefing, it was clearly a step along the process. She stated that there is no place for a document within the chronology of events or other documents where it does not fit clearly into the chronology. She said to release such a document in those circumstances can lead to it being misread and misinterpreted depending on when the document may be placed with other documents or discussions.

25 In my view, the nature of the document is such that it is a document that stands by itself giving various options. Those options are completely predictable. Because the options that are given are predictable, and the document makes sense by itself, the fact whether it was a draft document or not, and only gives options, does not really matter. Under those circumstances, the public interest on this point does not militate against the document being released.

26 Ms Coombs submitted that this document covers a sensitive issue and was written by a senior public officer. She said that sensitive documents should not be released and relied on a number of authorities for the same. (See Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169; Re Hulls and Victorian Casino Gaming Authority (1998) 12 VAR 483; Re Gillespie and Melbourne Parks Waterways (unreported AAT 27 March 1998); and McIntosh and Department of Natural Resources and Environment (2000) 16 VAR 444.)

27 She further stated that the higher the office of the person between whom the communications pass, the more sensitive the issue involved in the communication, the more likely it will be that the communication should not be disclosed : (see Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169).

28 Mr Smale pointed out that the sensitivity to which Ms Coombs referred was a commercial sensitivity not a sensitivity in the sense of emotion that is involved in documents such as this. He stated that the release of this information would not jeopardise commercial or economic interests of the public. He stated the issue here concerns sensitive social issues involving strong and deep human feelings and that hiding the information never reduces the sensitivity of an issue.

29 In my view, Mr Smale is correct when he states that the authorities cited by Ms Coombs do in fact relate to sensitive commercial issues and do not relate to the type of sensitive issues involved in this particular issue. Thus, it necessarily follows that the sensitivity talked about in those cases is not relevant to the present situation.

30 However, it is clear from Howard's case that the higher the office of the persons between whom the communication passed, the more likely it is that it should be protected. While high officers of the Department were involved in the preparation and receipt of this document, in my view, this may be a factor showing the public interest would be better served by the document not being released, but it is certainly not determinative by itself.

31 Ms Coombs stated that the document comments on the drafting in another document and discusses various issues and options. It is a draft which is a step within the decision or deliberative process and therefore, it is not appropriate for release. (See Re Prescott and Department of Conservation and Environment (1991) 5 VAR 54. I am not satisfied whether or not this document is a draft. I am satisfied that it is a document which gives options which can form the basis of future thinking of a government agency or the government itself. Further, I have formed the view that it may be very important for the public to be aware of the genesis of any final decision which it made. Again, this is not a definitive matter but, in this particular instance, it is a factor that militates for the document being in the public interest to be released. Even though I accept what Ms Coombs had to say that releasing draft documents is generally contrary to public interest, (see Re Wyman and Monash University (unreported AAT 20 August 1991); and Batchelor v Department of Premier and Cabinet (AAT Fagan P), each case must be considered on its own merits. In my view, the merits of this present situation militate in favour of the document being released.

32 Ms Coombs stated that this document forms part of the deliberative process which process requires frankness and candour on the part of those involved. She stated that to release such documents would inhibit the frankness and the candour that is required for good government and thus would be against the public interest : (See Re Western Suburbs Legal Service and Victoria Police (unreported AAT 3 June 1998); and Hulls v Victoria Casino and Gaming Authority (1998) 12 VAR 483. While this is a proper consideration to take into account, each document must be looked at on its own merits to decide whether the release of the document in question would inhibit frankness, candour and open communication. Reading the document in question in this particular case, I have come to no such conclusion. It is difficult to imagine how this particular document could affect any future freedom of expression, candour or frankness.

33 Ms Coombs further submitted that disclosure of the document will lead to confusion and unnecessary debate. She further stated that this document will not provide the applicant with the answers which it is seeking, that is, whether some other person or organisation changed the government policy. While I agree with Ms Coombs that the document will not provide the information which the applicant is seeking, that is, whether the government policy was influenced by others, it will have an effect of clearing the air as to the documents which the government holds, and may in fact be part of a jigsaw in relation to other documents which have been released pursuant to the FOI request.

34 In weighing up all the matters discussed above, I have come to the conclusion that disclosure of the document in question would not be contrary to the public interest within the meaning of s 30(1)(b). Therefore, it necessarily follows that the exemption claimed pursuant to s 30 has not been made out and the document in question as well as the documents in its class should all be released.