1. The Respondent identified four categories of exemption for the documents in dispute:-
   1. Documents said to have been prepared for the purpose of submission for consideration by a Cabinet Committee - section 28(1)(b).
   2. Memoranda to the Premier not directly related to Cabinet business - the policy blues - section 30(1).
   3. Memoranda to the Premier and Treasurer concerning Cabinet submissions - the policy reds and greens - section 28(1)(ba).
   4. A Cabinet submission review and lodgement advice - document 4 - section 28(1)(ba).
2. The Respondent relied upon various other categories of exemption in respect of the documents in dispute. However, I am persuaded that each of these documents are clearly exempt under the primary categories referred to above, so I will not deal with all of the subsidiary categories on which I heard argument, except for the alternative argument under section 28(1)(d) in respect of the attachments identified below.

1. Counsel for the Applicant drew my attention to various authorities in which the approach of this Tribunal to the interpretation of exemptions generally under the Act has been discussed. In Asher v Secretary to the Department of Infrastructure, (2007) VSCA 272, Buchanan JA said this:-

"Section 3 provides that the object of the Act is to extend as far as possible the right of the community access to information in the possession of the government of Victoria and other bodies constituted under the law of Victoria for certain public purposes. Accordingly it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information."

1. The burden of proof of all elements of each exemption lies on the Respondent.

1. Documents 1-5, 8-11, 15, 16, 18 and 20 were claimed to be exempt under section 28(1)(b) as being:-

"a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet."

1. The definition of Cabinet in the Act includes a Cabinet Committee.
2. I have evidence before me that each of these documents (except for document 3) was put before one of three Cabinet Committees. Barbara Poland ("Poland"), the Director, Cabinet Secretariat, of the Department of Premier and Cabinet, gave this evidence.
3. Throughout the hearing of this case I was asked by the Respondent not to name these three Cabinet Committees, even though the existence of at least two of them seem to me to be a matter of common knowledge in the community.
4. Counsel for the Respondent pointed me to legal authority suggesting that the identity of Cabinet Committees in Victoria is a secret. I cannot fathom why this should be so. At page 146 of the text "The Constitution of Victoria" by Taylor, G. (Federation Press 2006) the confidentiality of Cabinet Committees in Victoria is asserted, with the concluding comment as follows:-

"This is an example of the perceived need for secrecy in the operations of Cabinet exceeding its legitimate place."

1. I agree. At least one of the Committees named in this case has been referred to several times in Court of Appeal decisions, and this Tribunal has on many occasions referred to the names of other Cabinet Committees in Freedom of Information decisions.
2. It is difficult enough to consider these applications where the Applicant has no way of knowing what is in the documents, and so can make only limited submissions on the facts and the law. When not even the name of the Cabinet Committee before whom the exempt document has been placed can be revealed, this already laborious process of considering exemptions becomes even more circuitous. However, I have deferred to the Respondent's request by not identifying the Committees referred to in this case in these reasons.
3. In its Statement of Legal Contentions, the Applicant put the Respondent to proof of the formation of each Cabinet Committee, the constitution of its membership, and its terms of reference. However, I heard evidence establishing each of these elements and on this evidence being given, although the exemption was not conceded, it soon became apparent that there was no real basis for challenge on this ground. I was provided with the original record of the decision of Cabinet to establish each Committee as a Committee of Cabinet, and its terms of reference.
4. It was further conceded by the Applicant that documents which were clearly formal Cabinet submissions were exempt. The Applicant was unable to view the documents to establish which documents could be so described. In my view, having had the opportunity to view each of the documents, the concession is appropriate. Each of the documents I have identified below is clearly, on its face, a Cabinet submission, having no other evident purpose or function and no claim can be contemplated for their production. They are formal documents headed as Cabinet submissions. I have heard evidence that they were placed before Cabinet. I have read each of the submissions and there is no other possible purpose to their creation evident from their wording than for the purpose of being placed before a Cabinet Committee for its submission and consideration.
5. Accordingly, I find that the exemption under section 28(1)(b) for the Cabinet submissions identified in category 5, 9, 10, 15, 17 and 18 made out.
6. I heard evidence that document 3 was not actually submitted to Cabinet. David Downie ("Downie"), who during 2006 was Deputy Secretary, Water Sector Group with the Department of Sustainability and Environment, gave evidence that it was circulated to Cabinet Ministers for their comments before the Cabinet meeting at which it was to be considered, but ultimately not submitted to Cabinet in the form so circulated.
7. In my view the section does not require proof that a document was actually submitted to Cabinet. The focus is on the purpose of preparation of the document, not its trajectory after preparation, although its ultimate destination will, in most cases, assist to illuminate the purpose. I adopt the various Tribunal authorities cited to me of Pullen v Alpine Resorts Commission (unreported) AAT of Vic. 23 August 1996, Wilson v Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455, and Ryan v Department of Infrastructure (2004) VCAT 2346.
8. In my view document 3 is thus similarly exempt under section 28(1)(b).
9. Further, there are four documents claimed as Cabinet submissions which are in Powerpoint form. They are documents 2, 8, 11 and 20. I heard formal evidence that each of these PowerPoint documents was shown to Cabinet at a Cabinet meeting.
10. I have looked at each of these documents.
11. Documents 8, 11 and 20 are headed with the name of Cabinet, or the name of the Cabinet Committee to which they were submitted, and are marked with a particular number. I am told this numbering system denotes that the document has been to the Cabinet or a Cabinet Committee - it is a numbering system used only for Cabinet and Cabinet Committee documents.
12. Document 2 has a Cabinet number, but does not indicate its purpose on the front of the document or in the text.
13. All four Powerpoint documents can be described as plain English explanations of various water strategies.
14. I heard evidence from Downie, that each of the PowerPoint documents, including the document 2 Powerpoint, was devised for submission to Cabinet to explain the Department's Water Strategy to Cabinet members. He said that other PowerPoint documents, similar to document 2, were developed for general use within various Government Departments, but that this particular Powerpoint document was never shown in any place other than in the Cabinet meeting for which it was designed.
15. He said that the PowerPoint documents dealt with the issue of communications strategies targeting water demand, and that proper "demand management" was critical in the formulation of water policy and needed to be well understood by Cabinet in assessing overall water policy strategy.
16. From all of the above I am satisfied that the section 28(1)(b) exemption is made out for all four Powerpoint presentations.

1. The Applicant directed most of her attention to several attachments to the Cabinet submissions. They were the attachments to the submissions in documents 3, 5, 9, 10 and 15.
2. I have evidence in this case from Poland that each of these attachments appears in the records of the relevant Cabinet Committee as having been placed before that Cabinet Committee, together with the Cabinet submissions I have identified.
3. The circumstances in which an attachment to a Cabinet submission attracts protection under section 28(1)(b) was addressed in amendments to the Act in 1999. In introducing these changes, the Attorney General said this:-

"The bill narrows the exemption for Cabinet documents by removing the exemption for documents that are merely presented to Cabinet without having the status of a formal Cabinet submission. It is the intention of the bill that documents now prepared for Cabinet should be in the form of a formal Cabinet submission. Any attachments to a Cabinet submission would need to be relevant to that submission and not merely attached to attract an exemption."

1. On its face this statement suggests that, in order for an attachment to be exempt under the legislative changes described by the Attorney, the document must be in a particular format. However, Counsel for the Respondent pointed out that the actual changes made by this legislation did not, as might be supposed from the above quote, mandate any particular form of Cabinet submission.
2. I am required to be satisfied that each attachment "fits squarely" into the exception claimed (Birnbauer v Department of Industry Technology and Resources (1986) 1 VAR 279 at 286).
3. As discussed above, it is not necessary for me to be satisfied that Cabinet actually considered an attachment before the section 28(1)(b) exemption is made out. My enquiry is as to the purpose of preparation of the attachment, not its course through the Cabinet process.
4. Counsel for the Applicant submitted that the person creating the document for which exemption is claimed must do so with the intention that it will be submitted for the consideration of Cabinet. In the words of the Applicant's written submission:-

"nothing else will satisfy the ordinary meaning of the words in the subsection."

1. The Respondent submitted that examination of the purpose of the document does not require the author to be aware of the purpose of the creation of the document - that is, that it was commissioned in order to be submitted to Cabinet.
2. The Respondent relied on Ryan v Department of Infrastructure (2004) VCAT 2346, Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657; (2004) 21 VAR 453.
3. In Honeywood, the Court considered an argument that a report prepared by the Macquarie Bank was not exempt, as there was no evidence that its creators at the Bank knew that it would be submitted to Cabinet. His Honour Judge Dove found that the requisite purpose was established if there was evidence that the person or body who commissioned the report did so with the purpose that it be submitted to Cabinet.
4. This is a relevant consideration in this case, as external consultants have prepared several of the attachments and there is no evidence before me that their creators knew that the document would be submitted to a Cabinet Committee.
5. I propose to follow the authorities cited to me by the Respondent. The "ordinary words of the section" say only that I must be satisfied that the documents were prepared for the purpose of submission for consideration by the Cabinet Committee. The section does not mandate that the purpose must be the purpose of the creator of the document. It is easy to envisage situations in which a document might need to be considered by Cabinet where it would not be appropriate for the author of the document to know that it was to be so considered.
6. I am conscious that the authorities have provided for the Act to be interpreted to allow the free access to information to the greatest extent possible, consistent with the clear words and intention of the Act. However, the authorities to which I have been referred are often cited in applications such as these and provide a consistent line of interpretation. Although I do not regard them as binding, they are of considerable persuasive authority, and no contrary authority was advanced by the Applicant.

1. The first type of attachment are the attachments to documents 3, 5, and 19. These documents are substantially similar. Each represents a slightly different draft of a Central Region Sustainable Water Draft Strategy (CRSWS).
2. Downie gave evidence as to the circumstances of creation of each of these drafts. He has had five years' experience in developing and implementing water policies for Victoria, and he was closely involved with the development of the CRSWS. He said that these attachments were developed by officers of the Department of Sustainability and Environment for the purpose of consideration by Cabinet.
3. He said that each of the drafts is different to the other, and that all are substantially different to the final draft which was released for public consultation.
4. He said that the regional water strategies are designed to outline the Government's decisions and prioritised actions to secure our water future for the people and environment of Victoria over the next 50 years. The CRSWS was the first regional sustainable strategy developed under the Water (Resource Management) Act 2005, and was thus of critical importance. Downie's evidence was that, because of the importance of getting this strategy right, this process was overseen by Cabinet.
5. Section 22B of the Water Act 1989 provides a process whereby the Minister for Water may cause a sustainable water strategy to be prepared for a region of the State. Section 22C provides for detailed contents of such a plan.
6. The Applicant's counsel suggested to Downie that the Strategy was prepared in order to fulfil the Minister's responsibility under the Water Act, rather than prepared in order to be submitted to Cabinet. The Applicant points out that the Water Act deals comprehensively with the formulation of water strategies, and there is nothing in the Act which suggests that the draft of such a strategy should be submitted to Cabinet, or approved by anyone other than the Minister for Water.
7. I heard from Downie that the Minister had required the Draft Strategy to be placed before Cabinet because of the importance of this Strategy, and particularly because it was the first regional strategy devised under the Water (Resource Management) Act. He said Cabinet was intensely concerned with the formulation of water policy, dealing with issues of major public and political importance, having regard to the continuance of the drought and the prospect of long-term climate change in Victoria. The Strategy was to establish water policy for a period of 50 years, and would not be reviewed for another 10 years.
8. The Respondent's counsel suggested these drafts had the involvement of Cabinet "written all over them".
9. So, were each of these drafts prepared for the purpose of submission for consideration by Cabinet, or for another purpose?
10. In the Applicant's submission, I must be positively satisfied that the maker of the document did so with the intention that it will be submitted for the consideration of the Cabinet Committee. I have indicated above that I consider this unnecessary, but in this case I have clear evidence from Downie that he was personally involved with producing these drafts, and that he did so for the purpose of submitting each draft to Cabinet for its consideration, even though his department also had responsibility under the Water Act for production of the drafts whether they were presented to Cabinet or not.
11. I take it to be law that I am required to be satisfied that at the time the attachment was prepared the sole purpose, or one of the substantial purposes of the creation of the attachment, was its submission to a Cabinet Committee for its consideration. Several cases were relied upon by the Respondent for this proposition, the most recent of which is a decision of the Court of Appeal in Secretary to the Department of Treasury and Finance v Dalla Riva ( 2007) VSCA 11.
12. Therefore, I take the view that the creator of the attachment, or the person or body commissioning its creation, may have had several purposes for the creation of the attachment, as long as one of the substantial purposes is the purpose of submission for consideration by Cabinet.
13. I do not find the argument based on the Minister's responsibilities under the Water Act conclusive as to purpose. I would expect it would be very rare for a statute to mandate submission of a particular document to Cabinet. Cabinet is not a creature of statute. I would expect that there are very many decisions made by Cabinet which relate to areas in which individual Ministers have separate statutory obligations and powers.
14. In any event I have clear evidence from Downie as to purpose. There is ample evidence in this case that a substantial purpose of the preparation of the drafts was to submit the drafts to Cabinet for its consideration.
15. Each of the drafts is in my view exempt under section 28(1)(b).

1. The second type of attachment is the attachment to document 1. Document 1 is a Powerpoint document. The attachment is not in Powerpoint format. It contains text and graphics. It is addressed to the Department of Sustainability and Environment and contains detailed survey results on water related issues.
2. The Applicant relied on the following passage from Secretary to the Department of Infrastructure v Asher:-

"Bearing in mind that the Freedom of Information Act has been accepted as remedial legislation designed to assist in ensuring open and accountable government, I am unpersuaded that the words in section 28(1)(b) should be attributed with anything other than their ordinary meanings and consider they were intended to confine exemption from disclosure to the particular documents which it was contemplated would be placed before Cabinet for their consideration. Preliminary or preparatory material, not constituting a draft or copy, would accordingly not be encompassed."

1. The Applicant says that this passage demonstrates that a document created to assist in the preparation of a submission to Cabinet does not attract an exemption. She suggests that this survey is such a document.
2. Downie says that, on the contrary, the Department commissioned the survey to be presented to Cabinet together with the Powerpoint which was presented at the same time. The Powerpoint was designed to explain key points in the survey to the Cabinet Committee.
3. He said the survey attachment was subsequently circulated to managing directors and communications managers of metropolitan water businesses.
4. I have considered whether the survey attachment is covered by section 28(3) of the Act. That section provides that the exemptions in section 28(1) do not apply if the attachment:-

"contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet."

1. Counsel for the Applicant was shown this attachment on a confidential basis to allow him to assess the possible applicability of section 28(3).
2. The Respondent submitted that the document did not contain "purely" statistical information, but instead necessarily involved opinion and judgment based on interpretation of the data. This issue was considered by the Administrative Appeals Tribunal of Victoria in Mildenhall v DPC (No 1) 8 VAR. The Tribunal there considered a "Victorian Attitudes Monitoring Study" and concluded, after close examination of similar issues to those involved in this case:-

"In my view, taken as a whole this set of adjectives is apt to render the subsection applicable to documents other than those containing policy, opinion, advice or recommendations ... It is necessary to note that the entire set of adjectives is preceded by and modified by the verb "purely". Accordingly a document which has any features other than "statistical, technical or scientific" will not be removed from exemption by the subsection."

1. The above comments appear to apply equally to the case before me.
2. Counsel for the Applicant submitted that any confidentiality attaching to the drafts was lost because they were circulated to heads of water authorities. He could not refer me to any authorities on this issue. In my view, limited circulation of the drafts to the heads of water authorities does not negate the application of the exemption_._
3. For all of the above reasons it is my view that this document is exempt under section 28(1)b of the Act_._

1. The third type of attachment is the attachment to document 9. It is an independent review of one of the draft CRSWS Reports referred to by me in paragraph 42 above. It is addressed to the Department of Sustainability and Environment. It is stamped "Cabinet - In Confidence".
2. Downie said this independent Review was commissioned by the Department from an independent third party to assist Cabinet in deciding whether to endorse the key actions and policy directions in the CRSWS and particularly to note a funding request for funding those key actions.
3. The document closely mirrors the subject matter of the Cabinet submission to which it is attached. It is clearly aimed at reviewing and testing the options contained in that submission, identifying the major risks involved should the submission be adopted, and suggesting ways of ameliorating those risks.
4. I have not heard any evidence from the firm that created the document as to what the creator of the document believed its purpose to be. However, I repeat my view that it is not necessary for there to be evidence of purpose from the creator of the document. It is sufficient that Downie, the person who commissioned the document, gave evidence that he did so for the purpose of placing the document before the Cabinet Committee.
5. Accordingly, it is my view that this document is exempt under section 28(1)b of the Act.

1. The fourth type of attachment is the attachment to document 10. It describes itself as a "business case" and is addressed as a submission to the Departments of Treasury and Finance and Sustainability and Environment. However, in the first paragraph of the introduction of the document proper, the following passage appears:-

"This submission has been prepared ... to seek the approval from the (Cabinet Committee) and both the Minister for Water and the Treasurer for ..."

1. Downie said he directed preparation of this document because there was a severe shortage of water and thus water restrictions had been imposed in the city to which it related. There had been intense community discussion in an endeavour to provide solutions to this water crisis, and so he personally asked the relevant authority to prepare a submission to Cabinet on all feasible options to solve the problem. Document 10 is the submission so prepared.
2. Downie described this document as having also been prepared for the purposes of being submitted to a Cabinet Committee to assist its deliberations on funding of key actions in the CRSWS.
3. Downie said that he had been advised by Treasury that, as a standing rule, all business plans over $10 million would be put to Cabinet for approval. He said he was told by the Deputy Premier that the water strategy for the central region was a number one priority, and all issues to do with it would go straight to Cabinet and not be dealt with within the Department. He said the Deputy Premier personally led discussions on the creation and implementation of the draft.
4. Accordingly, he said that he issued instructions to the heads of all water authorities that business plans must be prepared, knowing that they would be placed straight to Cabinet. It was not expected that authorities would create a document that would be used as a foundation for the Cabinet submission. It would be placed directly before Cabinet. It would not be altered before being so submitted.
5. Downie drew a distinction between documents generally concerning a project of over $10 million, and a business case for a project over $10 million. The former were not required to be prepared as if to be submitted to Cabinet. The business case, however, was a very specific document. There are internal specifications on how such a document should be prepared, what should be in it, and its scope. He at first contrasted this with a business plan, which was said to be a quite different document, but then, on noticing that one of the documents for which exemption is claimed was headed "Business Plan", not "Business Case", explained to me that it was wrongly titled and was in fact a "Business Case".
6. Counsel for the Applicant asked me to treat Downie's evidence with caution. He invited me to find that it was contrived to meet the requirements of Asher. I thought Downie was an honest witness. He gave clear evidence that he had directed preparation of the document to be placed before a Cabinet Committee. The document is referred to in detail in the accompanying Cabinet submission, and the submission seeks the endorsement of the Cabinet Committee for the recommendations in the document.
7. In my view, the attachment is clearly protected under section 28(1) (b).

1. The final type of attachment is the attachment to document 15. It describes itself as a "Draft Report". It relates to a subset of issues within the greater CRSWS umbrella. It involves a large and expensive project requiring both State and Federal funding. It refers to having been produced "to provide government with insights" as to the issues to do with the particular project it describes. It does not refer to Cabinet by name.
2. It is a two page document. The Cabinet submission to which it is attached requests the endorsement of Cabinet for approval of the project described in this attachment and the allocation of funds for the project.
3. In my view this attachment is clearly exempt under section 28(1)(b).

AN ALTERNATIVE GROUND OF EXEMPTION - SECTION 28(1)(d)

1. An alternative argument of the Respondent was that even if I was to find that the CRSWS drafts did not attract section 28(1)(b), they were protected under section 28(1)(d).
2. That section provides an exemption for:-

"a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published."

1. The circumstances in which section 28(1)(d) applies was considered late last year in Secretary to the Department of Infrastructure v Louise Asher (2007) VSCA 272. In that case exemption was claimed for quarterly asset investment reports which were prepared for the purpose of providing raw material which might be used in the preparation of another document that was then to be submitted to a Cabinet Committee.
2. The Respondent in that case had argued that exemption under section 28(10)(b) was available for any document which disclosed a subject matter on which Cabinet had deliberated.
3. There were two passages in particular in Asher which were said by the Applicant to have potential relevance to this case before me.
4. At paragraph 5 Buchanan JA said this:-

"In this case the reports could not disclose what, if anything, Cabinet thought of the matters canvassed in the reports or what use, if any, Cabinet made of any part of the reports. The question is whether the word "deliberation" in section 28(1)(d) includes a topic on which Cabinet deliberates or is limited to the manner in which Cabinet deals with a topic ... The word deliberation does not ordinarily connote the subject matter of a debate, but the debate itself."

"I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest."

1. The Respondent in that case was unable to establish that release of the documents in question would disclose the deliberations of Cabinet, as opposed to merely disclosing the subject matter of Cabinet discussions. Buchanan JA noted the policy behind the protection provided for the deliberations of Cabinet as being:-

"justified in order that 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."

1. In the case before me, evidence relevant to section 28(1) (d) was given by Poland. The main issue raised by the Applicant about her evidence was that her initial witness statement contained passages in relation to each claimed section 28(1)(d) exemption, in which she baldly stated that she "believed" that disclosures of each of the documents she identified would constitute disclosure of deliberations of the relevant Cabinet Committee, without identifying the basis for that belief.
2. When Poland gave evidence before me, she produced and signed a revised witness statement in which those assertions as to "belief" were removed, substituting a paragraph which noted that she had inspected the records of the relevant Cabinet Committee and the documents presented to it and on that basis had formed a view that the Cabinet Committee had "dealt with" each matter.
3. It was suggested to her in cross-examination that she had changed her witness statement knowing of the requirements of Asher, which was handed down in late December 2007, between the time her original and revised statements had been prepared. She rejected that suggestion.
4. It was suggested in argument that I should find Poland's evidence contrived - that she had tailored her evidence to achieve a legal result. She was in no position to know whether or not Cabinet had deliberated on the documents in dispute. All she could say was that they had been presented to the Cabinet Committee, and the Applicant pointed out that this was not sufficient evidence of deliberation in the light of the decision in Asher.
5. However, as I have said, she did give evidence of having made the enquiries and searches I have outlined, and counsel for the Applicant did not wish to suggest to me that the witness was lying. His position seemed to be that I should concentrate on the terms of the documents themselves, and treat her evidence as equivocal.
6. She gave clear evidence that her searches had revealed that the documents she identified had actually been submitted to a Committee of Cabinet and the dates on which each document was submitted. She said she could tell that from looking at the agenda and minutes of the relevant Cabinet Committee meetings.
7. In my view, she is not in a position to say whether or not disclosure of the documents would involve the disclosure of any deliberation or decision of Cabinet. If by "dealt with", she meant deliberated on, she did not appear to have any means of determining that question, other than looking at what was contained in the documents and the records of them being submitted to the relevant Cabinet Committees.
8. The Respondent, however, invited me to find that, in looking at the documents sought to be disclosed, it was evident from their face that the section covered the documents. This was because, if they were disclosed, any person looking at the drafts and comparing them with each other would be able to ascertain easily what Cabinet had decided by looking at the additions to and deletions from the drafts.
9. The Respondent referred me to a passage in Asher which occurs shortly after the passages relied on by the Applicant and reads as follows:-

"I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet has even read the document, let alone how Cabinet dealt with the document, could jeopardise the public interest.

That is not to say that a document supplied to Cabinet for its consideration could never be exempt as disclosing a deliberation of Cabinet. It all depends on the terms of the document. At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet's deliberations - the latter might say a great deal."

1. The Respondent says the drafts are in the latter category referred to in the above passage. The Respondent handed to me a confidential submission. This submission was a summary of the key differences between documents 3, 5 and 9, and an analysis of how the differences could be used to establish what decisions Cabinet had made at the various meetings at which these documents were tabled.
2. Counsel for the Applicant did not have the benefit of looking at this document.
3. I accept and apply the points made in this document. Any well-informed person perusing the various drafts could plainly make an informed guess as to why the various changes to the drafts had been made, and so piece together the deliberations of Cabinet on the subject matter of the changes.
4. Accordingly, the drafts are in my view exempt under section 28(1)(d).
5. I do not find it necessary to finally determine this issue, as I am persuaded that each of the documents identified are properly to be characterised under 28(1)(b) as documents prepared for the purpose of briefing a Minister in relation to issues to be considered by Cabinet, with the exception of the draft reports, which I will deal with separately. I have dealt with this ground of exemption at some length because it assumed some prominence in argument.

1. "Policy blues" are memoranda to the Premier. They were described in the evidence of Adam Fennessy ("Fennessy"), who was the Director of the Resources and Infrastructure Branch of the Department of Premier and Cabinet during 2006.
2. These memoranda are known as "blues" because they are printed on blue paper. They are confidential memos written for the exclusive use of the Premier, and are not provided to any other person or department without the Premier's agreement. Fennessy said that the Department of Premier and Cabinet's role was to give advice to the Premier on proposals from across Government. Thus, these policy blues would often be critical of another department or minister.
3. These memos were often, it was said, written cryptically, in a direct and candid style, and may appear terse as drafted to take into account the Premier's personal state of knowledge of a project.
4. They are documents 6, 7, 14, 19 and 21.
5. These policy blues were said to be exempt under section 30(1).
6. Section 30(1) provides that a document is an exempt document if its release would:-

"disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government and would be contrary to the public interest."

1. The Applicant reminded me that I must be positively satisfied as a matter of fact of each of the elements of the first limb of the section. Thus I must be satisfied that each document was prepared by an officer of an agency, contains matter in the nature of an opinion, advice or recommendation, was prepared in the course of or for the purpose of the deliberative processes of an agency, and that those deliberative processes were involved in the functions of an agency.
2. I have looked at each of these documents. It is clear from the face of the documents that they satisfy all of these conditions. In his witness statement, Fennessy deposes as to each of these policy blues and the circumstances of their creation. It is unnecessary for me to repeat his description, and I accept it as accurate.
3. The only live issue relating to the policy blues is therefore whether or not the second limb also applies to them - that is, whether release of those documents would be contrary to the public interest. I note that the burden of proving this is on the Respondent. It is not necessary for the Applicant to prove under this section that the release would be in the public interest - it is for the Respondent to prove that release would be contrary to the public interest.
4. Fennessy set out the public policy issues relied on by the Respondent as follows:-

"Generally speaking, the release to the public of policy blues is contrary to the public interest because it is likely to have an adverse impact on the Premier's ability to obtain full and candid advice from DPC in the future. Authors of policy blues may become less candid and robust in the expression of views if policy blues were to become publicly available. Policy blues sometimes contain frank opinions about stakeholder groups in the community or other parts of government. Furthermore, the Premier may be inhibited from seeking such written advice if there is a chance that he or she would be criticised for not following the advice. This would constrain decision-making and impede proper policy development in the future."

1. I also heard evidence from Dr Graeme Hill, Director of the Legal Branch of the Department of Premier and Cabinet, that because of the sensitivity of these memoranda, there is a constitutional convention that policy blues are never released on a change of Government.
2. Dr Hill is the successor to Mr Ian Killey, former Director of the Legal Branch of the Department of Premier and Cabinet, whose evidence as to the sensitivity of policy blues has been relied on in several cases before this Tribunal involving claims for exemption for policy blues.
3. The Respondent has provided me with several authorities in which policy blues have been considered by this Tribunal in the past. In Wells v Department of Premier and Cabinet [2001] VCAT 1800; (2001) 18 VAR 293 at page 303, these public interest issues are analysed in detail. Davis v Department of Premier and Cabinet 2001 (VCAT) 1848 is another case in which Mr Killey's evidence was accepted and the conclusion drawn from it that release of the policy blues would be contrary to the public interest.
4. The Applicant suggests to me that the public interest grounds advanced by the Respondent should be assessed with care, and were exaggerated.
5. The Respondent says that it is contrary to the public interest that policy blues, as a class, be released and that, in relation to each individual document the subject of this application, it is contrary to the public interest that that specific document be released.
6. I am not persuaded that I need to find that a blanket ban on release of policy blues, whatever they contain, will always be in the public interest. Mr Adams invited me to consider that there may be occasions in which release of such a document would not be contrary to the public interest - for instance if it would disclose the commission of a criminal offence. He further suggested that some policy blues might be so innocuous that release of such a document would not be in any way contrary to the public interest.
7. However, in relation to each policy blue before me, I have examined each document and it is plain that each contains potentially sensitive recommendations. None of these documents is without political or governmental controversy. None could be described as innocuous.
8. It is unnecessary to decide in this case whether there may be circumstances in which release of an otherwise innocuous and uncontroversial policy blue, or a policy blue revealing some improper conduct, may be contrary to the public interest.
9. I am aware that the burden of proving the second limb of the section is on the Respondent. Nevertheless, in my view there is ample material from which harm to the public interest could occur by release of the individual documents which I have inspected. Release of documents such as the ones before me carries the clear danger that officers will shrink from giving full and frank advice, or that Premiers will be disinclined to seek such advice on controversial issues.
10. It is my conclusion, therefore, that to release any of documents 6, 7, 14, 19 or 21 would be contrary to the public interest.
11. The exemption is therefore upheld for the policy blues.

1. "Policy reds" are generated by officers of the Department of Premier and Cabinet and are printed on red paper. They are directed to the Premier in his capacity as Chairman of Cabinet and Cabinet Committees. They may cover any matter which the Premier needs to be aware of, or have advice about, in order to properly fulfil his role as Chairman of Cabinet and as Chair of Cabinet Committees. These memoranda are physically taken into the Cabinet room.
2. Document 13 is the policy red in this case. Fennessy gave evidence that it was prepared by officers of the Resources and Infrastructure Branch of the Department of Premier and Cabinet. Exemption is sought for this document under section 28(1)(ba) of the Act. That section protects a document if it is:-

"a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet."

1. I have looked at this document, and it clearly falls within this description. I have evidence from Fennessy as to the circumstances of its creation, and I accept that evidence.
2. The exemption is therefore upheld for this document.
3. "Policy greens" are printed on green paper. They are memoranda prepared by the Treasury and directed to the Premier and Treasurer. They are prepared to provide information to, or make submissions to, the Premier and Treasurer concerning issues to be considered by Cabinet.
4. In this case, documents 12 and 17 are said to be policy greens. Once again, exemption is claimed for these policy greens under section 28(1)(ba) of the Act.
5. I have looked at each of those documents and they appear from their face to be memoranda containing advice on matters before Cabinet. Neither memorandum is specifically addressed to any person, but Fennessy has given evidence that each document was provided by the Department of Premier and Cabinet (or Treasury, in the case of the policy greens) for the purpose of briefing the Premier in relation to issues before a Cabinet Committee. Each certainly appears, by its face, to be so designed.
6. In my view, each of document 12, document 13 and document 17 falls within the section 28(1)(ba) of the Act.

1. This is a document containing advice to the Premier as to the readiness or otherwise of the Cabinet submission regarding the draft CRSWS Report. It also contains co-ordination comments on the draft, in standard form, from the head of every Department of Government.
2. The document is signed by Adam Fennessy, who gave evidence about the circumstances of its creation and its submission to the Premier.
3. Exemption is claimed for this document under section 28(1)(ba) as a:-

"document prepared for the purpose of briefing a Minister in relation to issues to be considered by Cabinet".

1. No argument was, or could be, advanced by the Applicant against the applicability of this section. It clearly applies, and this document is exempt from production.

1. The public interest override is available only to documents 4, 6, 7, 14, 19 and 21 - that is, the policy blues and the submission review and lodgement advice.
2. Having found that all of the documents specified above are exempt by reason of various sections of the Act, the Applicant asks me to find that, notwithstanding this finding, the documents should be released under section 50(4) of the Act because the public interest requires their release.
3. Issues of public interest are slightly different when considered under section 50(4) as contrasted to their application under section 30(1)(b). The burden of proving that the public interest override does not apply still remains with the Respondent. The Applicant does not have the burden of proving that it does. This is because the right to access is enshrined in section 3 of the Act, which states it has been enacted:-

"to extend as far as possible the right of the community to access information."

and the right to access is also provided for in section 94H of the Constitution as follows:-

"There is to be in force at all times as part of the Laws of Victoria an Act, the objectives and functions of which are to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information by creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies."

1. However, when considering public interest issues in the context of the public interest override, it is important to note that there is a the high bar set for the Applicant by the need to demonstrate that the public interest requires release of the documents.
2. In Secretary to the Department of Justice v Osland (2007) VSCA 96 at 92 , Bongiorno AJA observed as follows:-

"if the application of the override requires the Tribunal to determine whether considerations of the "public interest" are so strong as to outweigh or override those factors which make the document exempt, that outweighing or overriding must be compelled by the public interest consideration. It is only if that concept of compulsion is borne in mind that the exercise can be appropriately termed a balancing one."

1. So, I must take into account the public interest factors which have led to the exemption being available, and balance them against the public interest favouring release. But it is not just a matter of me balancing all competing public interest factors and coming down on the strongest side. The result has to be emphatic. There has to be no practical alternative but to allow access. As expressed elsewhere in Osland, my conclusion must be "irresistible".
2. The Applicant has filed a statement of public interest grounds. In that document she submits that the provision of water is basic to the Victorian community, and therefore issues to do with the preservation and conservation of water are of immense public importance. The Applicant notes that water policy is also referred to in the Constitution, as a measure underlining its fundamental importance to our State.
3. The Applicant also relies on various public statements by Government Ministers about the need for accountability and openness of Government, and says that access and accountability are even more important when considering the fundamentally important issue of water, and of restricting access to water.
4. The Applicant also suggested that she, in her position as Shadow Minister for Water, has a duty to bring this application and compel disclosure, so as to hold the Government accountable in respect to the provision of water. It was said I should view her application as being in the nature of a representative application on behalf of the people of Victoria, and not as an application by someone acting in a private capacity. Thus, consideration of the democratic process itself was said to be a factor which should influence me in deciding whether or not the public interest "requires" disclosure of the documents sought.
5. As well as relying on the public interest grounds accepted by me in relation to the policy blues, reds and greens, there were other public interest issues put forward by the Respondent. The Respondent pointed out that all of the documents produced in this case are incomplete. They are linked only by their reference to water. The documents to which the public interest override applies are even more fragmentary. They consist of written responses to some documents which are not to be released, and to issues which are not explained in the documents. If these documents were to be released, they would only confuse, not enlighten, the public.
6. Further, the public draft of the water strategy for the central region has now been published. The comments in these documents will not have taken into account matters in the public document. The documents describe some aspects which have completely changed. They will not fairly disclose reasons for decisions made subsequently.
7. Finally, the Respondent asked me to note carefully that the documents reflect Government decision-making at a very high level. It was observed in Howard v Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169 at page 177, that the higher the office of the persons between whom the communications pass, and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.
8. In my view, each of the Respondent's submission as to the public interest carries great weight. There is nothing in the Applicant's submissions which could be described as making a compelling or irresistible case for disclosure of the documents sought.
9. In the circumstances, I am not of the view that the public interest requires release of these otherwise exempt documents.