(b) 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;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

(d) 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) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) 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

(ii) in the case of an agency engaged in trade or commerce - information of a business, commercial or financial nature -

that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage;

1. The applicant has applied to the Tribunal for review of the decision of the respondent refusing the request.
2. The documents in dispute with identification of the grounds relied upon in relation to each, are as follows :

Submission marked 'Commercial-in-Confidence' prepared by external consultant and submitted to committee of Cabinet

Submission marked 'Commercial-in-Confidence' prepared by external consultant and submitted to committee of Cabinet

Final draft report marked 'Cabinet-in-Confidence' prepared by external consultant and submitted to committee of Cabinet

Business case marked 'Commercial-in-Confidence' prepared by external consultant

Copy of presentation briefing marked 'Cabinet-in-Confidence' prepared by DSE, Capital Projects Division for Minister and Treasurer and presented to committee of Cabinet

Copy of presentation marked 'Cabinet-in-Confidence' prepared by DSE and presented to committee of Cabinet

1. Email from DSE officer to officers of DTF and DSE attaching six page draft discussion paper.

2. Email response from DSE officer to officers of DTF and DSE in relation to draft discussion paper

1. Email from external consultant to DSE officer and officer of external consultant attaching a one page document in relation to cost estimates.

2. Email response from DSE officers (including Peter Sammut) in relation to costs estimates

1. Peter James Sammut (Sammut) the General Manager, Capital Projects Division of the respondent, gave the following relevant evidence including that in a written statement (Exhibit R1) adopted by him :

He is the responsible executive for managing the delivery of the Victorian Desalination Project on behalf of the Secretary of the respondent nominated as the Facilitating Agent under the Project Development and Construction Management Act 1994.

Capital Projects is a division of the respondent with responsibility for the delivery of the desalination project as well as assisting the respondent in the development and delivery of the capital projects.

As part of its water plan the Victorian Government proposed the development of a desalination plant to be delivered as a public/private partnership. The respondent's Capital Projects Division acts as the proponent for the project. The plant and associated works are to be constructed and operated through the public/private partnership involving a private consortium paid to build and operate the plant for a period eventually handing back control to Government at the end of the contract term.

Later the Government conducted a further financial assessment of the project and different configuration options as part of the further development of the Partnerships Victoria Business Case and the preparation of a public sector comparator (PSC). The different configuration options have an impact upon the cost of the project.

In June 2008 the Government called for expressions of interest in the construction and operation of the project, the submissions being assessed by a project team and a range of experts with a view to selecting two bidders.

In March 2009 the short-listed bidders submitted bids for the project team to evaluate.

AquaSure was the successful bidder. Construction commenced in September 2009.

The Government has established a Committee of Cabinet to make decisions in relation to the water plan including the desalination project. It meets as and when required to discuss water issues including the desalination project. As far as he is aware, he has attended all meetings at which the project has been considered.

The documents in dispute cover the period 1 January 2007 to 30 May 2008 during which period a substantial amount of research and analysis were conducted by Melbourne Water and the respondent. A public sector comparator was created for the project as required under the Partnerships Victoria policy, the public sector comparator being the estimated whole-of-life, risk-adjusted cost of Government delivering the project. It is used to test whether any private investment proposal offers value for money in comparison with the most efficient form of public delivery.

The documents in dispute provide an analysis of how the State would allocate and value the risks associated with the project, such as risk in regard to its design, construction, operation and maintenance. Such information including the estimates of cost, is highly confidential to the State and has major implications for the cost of the project during a live bidding process.

Were such information to be provided to project bidders, they could adjust the allocation of risk and their costs of delivering the project accordingly.

The documents in dispute contain the State's costs estimates for the project together with methodology for arriving at the estimates and assessing risk. Having regard to the size and complexity of the project, the documents are commercially very sensitive.

Although the bidding process is complete, the financial and methodological information in the documents could reveal the Government's detailed valuation of specific risks which could compromise future negotiating positions. Were bidders to become aware of the State's estimated pricing and assessment of individual risks, it could influence their behaviour during a 'live contract'.

Documents created by the Capital Projects Division for the bid evaluation purpose are strictly confidential. Access to them was limited to a small number of people in the project team.

Since the commencement of the bidding process, the Capital Projects Division implemented a number of measures to ensure that the content of the documents in dispute and other materials remain confidential. Such measures include the following :

1. Staff and visitors to the division require security passes and permission to enter the division's premises. Some areas may not be accessed by all employees.
2. The IT system for bid evaluation purposes was independent of systems used by other departments.
3. No documents relating to bid evaluation were to be emailed.
4. Those accessing bid-related documents were required to sign a confidentiality agreement; and
5. Cabinet documents are securely stored.

Release of the documents in dispute "in their current form" would cause the State significant financial detriment".

In accordance with Partnerships Victoria Policy, a project summary and relevant contract documents were released on 26 November 2009.

1. In regard to particular documents in dispute, Sammut, in his statement, said:

Documents 1, 6 and 7 were either commissioned or prepared directly by him for the purpose of submissions to the Committee of Cabinet for its consideration. They were submitted to the Committee.

External consultants retained by the respondent were commissioned to prepare document 1 for submission to the Committee for its consideration and deliberation. He attended a meeting of the Committee to which he presented the document. He himself prepared documents 6 and 7 and attended a meeting of the Committee to which he presented them.

He prepared document 5 for the purposes of briefing the Minister for Water and the Treasurer in relation to issues considered by the Committee.

Document 2 was taken by him to a Committee meeting and circulated to members and used by the Committee in making its decision on that day.

Document 8 arose out of concerns raised at a Committee meeting and, if released, would involve disclosure of a deliberation or decision of the Committee.

The Capital Projects Division is engaged in "trade or commerce". It is involved on behalf of Government in managing the contract with AquaSure.

Documents 1, 2, 3, 4, 5, 7, 8 and 9 contain highly sensitive financial and commercial information concerning the project in particular in regard to the State's projected cost estimate analysis. The project is currently in the construction phase and if released the financial and commercially sensitive information would defeat the State's negotiating position going forward. Release of it would expose the State unreasonably to disadvantage in the current contract process and potentially in future bidding processes involving public/private partnerships.

Documents 1, 2, 3, 4, 8 and 9, being in the case of 1, 2 and 3 reports, in the case of document 4 a business case and in the case of documents 8 and 9 emails, contain opinion, advice and recommendations prepared for the purpose of the deliberative process of Government in relation to the project.

Documents 8 and 9 are email chains including attachments between external consultants, Government departments and Capital Projects Division officers and internal emails between these officers and those of another agency. In addition to containing opinion, advice and recommendations, they contain consultation between officers of the Capital Projects Division and those of another agency. They also contain components of the public sector comparator cost estimates.

Their disclosure would be contrary to the public interest because of commercial sensitivity. Although the bidding process is complete, they detail costing and tender analysis methodology likely to be applied in other tender processes. Their release would prejudice those matters.

Release of the contract and the public sector comparator amount (compared to the winning bidder's contracted value), as required by the Partnerships Victoria Policy on public disclosure of contract details, will fulfil the public interest.

1. In his oral evidence to the Tribunal, Sammut confirmed that he attended all meetings of the Committee of Cabinet in the capacity of presenting the project to the Committee. He prepared materials for the Committee and briefed Ministers before meetings.
2. On being shown a document (not one of those in dispute) entitled "Partnership Victoria Public Sector Comparator Technical Note (Exhibit R2), Sammut said that it contained information about the process of private/public partnership and outlined Cabinet's role.
3. He said that the public sector comparator was a quantitative basis for determining value for money. The technical note contains the following statements.
4. At p 69, para 9.2 :

The portfolio Minister needs to seek approval of Cabinet or the relevant committee for any major departures from the approved PSC after the bidding process begins.

Portfolio Minister and Cabinet (or relevant committee) to sign off on the PSC.

Approval by Cabinet or the relevant Cabinet committee must be obtained for funding the Partnerships Victoria project and/or funding a full business case to substantiate the partnership approach.

Primary responsibility for the construction and use of the PSC lies with the relevant portfolio department or agency.

The portfolio Minister is also required to sign-off on the finalised PSC and is responsible for obtaining formal approval of Cabinet or the appropriate committee before the bidding process commences.

1. By orders in Council dated 18 December 2007, the Governor in Council nominated the Desalination project as a project to which The Project Development and Construction Management Act 1994 (the PD & CM Act) applies, nominated the Minister for Water as the responsible Minister and the Secretary of the Department of Sustainability and Environment as the facilitating agency and declared the provisions of the act which are applicable.
2. In cross-examination by counsel for the applicant, Sammut conceded that he had not had any powers formally delegated to him by the Secretary of the respondent and that the Secretary was the facilitating agency.
3. Sections 12 and 13 of the PD & CM Act are set out as follows :

(1) The responsible Minister may give a facilitating agency written directions in relation to a nominated project.

(2) A facilitating agency must comply with any directions under this section in carrying out its functions under this Act in relation to the nominated project.

(3) An agreement or arrangement or contract entered into under this Act in contravention of subsection (2) is not void only because of that contravention.

(1) The Treasurer may give a facilitating agency written directions in relation to any matter relating to the financing of a nominated project if the Treasurer is of the opinion that that matter may involve any direct or indirect or contingent liability to the State.

(2) A facilitating agency must comply with any directions under this section in carrying out its functions under this Act in relation to a nominated project.

(3) An agreement or arrangement or contract entered into under this Act in contravention of subsection (2) is not void only because of that contravention.

1. Sammut was unaware as to whether the Secretary had been given any written directions by the Minister for Water or the Treasurer pursuant to these measures.
2. When counsel for the applicant put it to Sammut that Cabinet cannot interfere with the statutory power given to the Secretary, he replied that that is not how it works adding that contracts are entered into by the Crown not the facilitator.
3. Sammut conceded that projects such as the desalination project were of great public interest.
4. Sammut said that the bottom line number has been released to the public and that thereby the public interest has been served asserting that it was not in the public interest to disclose all of the detailed workings.
5. Sammut said that the release of Document 7, said to be "only a graph", would disclose deliberations of Cabinet.
6. He said that to disclose document 9 would reveal the contents of document 2. His reply, in effect, was that while document 2 if released would reveal data relating to costs estimates, document 9 if released would disclose a summary.
7. I turn now to the submission of counsel for the applicant that, in this case, none of the documents is able to be characterised as a Cabinet document because the facilitating agency has been statutorily determined to be the Secretary of the Department of the respondent who has not delegated power to the Minister and that thereby, Cabinet was not entitled to consider, deliberate upon or decide matters such that a document is able to be said to fall within the s 28 categories of exempt documents.
8. Cabinet which is not given legislative recognition in regard to its establishment or function may be said to be, as a matter of convention, the inner circle of ministers of the Crown constituting the major political force. Cabinet meets regularly to conduct the business of Government.
9. Ministers by oath of office have a responsibility to serve the Crown. They have the responsibility for administering statutes governing the operation of their departments. In my opinion, that responsibility is not displaced by virtue of a legislative measure appointing a particular departmental secretary as a facilitating agency nor does such measure preclude the Cabinet from consideration of the business of Government touching a particular department. Indeed, ss 12 and 13 of the PD & CM Act give recognition to the departmental supremacy of Ministers.
10. In support of her request for access to the documents in dispute, the applicant relies upon s 94H of the Constitution Act 1975 which is 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. It is expressly acknowledged in the provision that disclosure is to be limited 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".
2. The Freedom of Information Act 1982 meets constitutional requirement expressing as it does the object of extending as far as possible the right of the community to access information. Furthermore, it meets the specified limitations in its exemption provisions.

1. In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 V.R. 63 at 75 the Court said:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".

1. The Tribunal accepts that the availability of water is a matter of serious interest and concern to the public.
2. The applicant contends that denial of access to the information sought is not necessary for the protection of essential public interests or the private and business affairs of any persons and further that the availability of water outweighs other alleged public interests.
3. In this case, apart from the evidence of Sammut, the documents themselves and the exhibits, including the Attorney-General's report, there was no evidence to assist the Tribunal in the task of balancing public interests or as to the consequences of disclosure in regard to unreasonable disadvantage to the agency. Sammut was the only witness called.
4. The respondent submitted that release of the documents in dispute would not benefit the community as a whole but merely satisfy the curiosity of the applicant and that in this case, there is no evidence of impropriety militating in favour of release. It was further submitted that disclosure of cost estimates and risk adjustment information would give insight to future bidders with the likely consequence of adjusted bids to the disadvantage of Government.
5. It was further submitted that to release the information which would disclose the analysis of how the State allocates risks would involve the disclosure of commercially sensitive information. Furthermore, that to release information relating to cost estimates and risk adjustment which is now out of date would have the potential to mislead the public.
6. I turn now to a consideration of each of the documents in dispute.

1. Document 1 marked "commercial in confidence" prepared by an external consultant is claimed to be exempt pursuant to ss 28(1)(b), 28(1)(d), 34(4)(a)(ii) and 30(1).
2. The evidence was that Sammut commissioned it for submission to the Committee of Cabinet for its consideration. That appears to have been the sole and substantial purpose of the document. Sammut, in doing so, was acting in his capacity as the responsible executive for managing the delivery of the desalination project on behalf of the Secretary of the respondent.
3. I accept Sammut's evidence that document 1 contains highly sensitive financial and commercial information which appears to me to go beyond what might be described as "purely statistical, technical or scientific material" and thereby be excluded by operation of s 28(3) of the Act from the application s 28(1) of the Act.
4. In my opinion, document 1 is properly characterised as falling within the category contemplated by s 28(1)(b) being a document which fits "squarely within one of the four exemptions in s 28(1) ..." (Re Birnbauer and Department of Industry, Technology and Resources (1986) 1 VAR 279 at 286) and is exempt from disclosure pursuant to that measure.
5. This document differs from what was considered by the Court in Secretary to the Department of Infrastructure v Asher [2007] VSCA 272 where the documents were found to have been prepared not for the purpose of submission for consideration by Cabinet but rather to enable the creation of another "quite separate" document to be submitted for Cabinet consideration and thereby fell outside the s 28(1)(b) exemption..
6. The evidence was that the document was submitted to a meeting of the Committee of Cabinet for its consideration and that Sammut presented it to the Committee. I accept the view expressed in Re Birrell and Department of Premier and Cabinet [Nos 1 and 2] (1986) 1 VAR 230 at 239 that -

" 'deliberation' encompasses more than the mere receipt of information in the Cabinet Room for digestion by Cabinet Members then or later. The word 'deliberation' connotes careful consideration with a view to the making of a decision".

It is unclear from the evidence as to how Cabinet dealt with the document and as to whether it is able to be concluded that Cabinet actually deliberated or made any decision sufficient to find that the document is exempt pursuant to s 28(1)(d). Exemption under s 28(1)(d) has not been made out.

1. I find upon the undisputed evidence that the respondent is engaged in trade or commerce. The evidence of Sammut was that document 1 contains highly sensitive financial and commercial information and in particular information relating to the State's projected cost estimate analysis. He was in no doubt that to release it would expose the State unreasonably to disadvantage both in the current contract process and potentially in future bidding processes involving private/public partnerships. There was no evidence to the contrary.
2. I accept Mr Sammut's evidence and find that document 1 is also exempt from disclosure pursuant to s 34(4(a)(ii).
3. Finally, document 1 is claimed to be exempt pursuant to s 30(1). It was prepared by an external consultant and contains opinion and advice. The consultant appears to satisfy the definition of "officer" in the Act as a person employed by or for the respondent and it is clear enough that the opinion and advice was in the course of the deliberative processes involved in the functions of the respondent and, upon the uncontradicted evidence of Sammut, to release it would disclose information of a commercially sensitive nature.
4. From the evidence of Sammut and the contents of the document, it is apparent that the information contained in the document is of a commercially sensitive nature consisting of policy advice to the Premier, being of a confidential nature and of a preliminary nature, release of which would not disclose a final determination and be likely to inhibit frankness and candour.
5. Weighing the competing public interests viz that in protection of the deliberative processes of Government and that in the public's right to access to documents, I find, having regard to Sammut's evidence and to the document itself, that the public interest in protection of the deliberative processes of Government has the greater weight. Document 1 is thereby exempt from disclosure pursuant to s 30(1) of the Act.

1. The respondent relies upon ss 28(1)(d), 34(4)(a)(ii) and 30(1). The document is a report from an external consultant to the respondent. The evidence was that it contains highly sensitive financial and commercial information relating to the desalination project and information relating to the State's projected cost estimate analysis. It stands in a similar position in that regard to document 1 and is exempt from disclosure pursuant to s 30(1).
2. Although document 2 was submitted to a meeting of the Committee of Cabinet in April 2008, it is not apparent from the evidence that its release would involve the disclosure of any deliberation or decision of the Cabinet and it does not satisfy the requirements of s 28(1)(d).
3. For the same reasons as applied to document 1 and upon similar evidence from Sammut, document 2 is also exempt from disclosure pursuant to s 34(4)(a)(ii).

1. Described as a final draft report and marked "Cabinet-in-Confidence", document 3 is also a report from an external consultant containing opinion and advice prepared by "an officer" in the course of the deliberative processes.
2. As to the material which relates to the request, it is of similar character to that in document 1 both according to the evidence of Sammut and as appears to be the case from a perusal of the document. It too is exempt pursuant to s 30(1) of the Act. Upon the evidence, it is also exempt pursuant to s 34(4)(a)(ii).

1. This document is marked "Commercial-in-Confidence" and is a report from an external consultant. Upon Sammut's evidence, it stands in a similar position to the last document in relation to both s 30(1) and s 34(4)(a)(ii). It is exempt from disclosure pursuant to both measures for the same reasons as is document 3.

1. Document 5 is claimed to be exempt pursuant to ss 28(1)(ba) and 34(4)(a)(ii) of the Act. It is a copy of a presentation briefing and is also marked "Cabinet-in-Confidence". Upon the evidence, it was prepared by Sammut for the purpose of briefing the Minister and the Treasurer in relation to issues to be considered by the Committee in April 2008. Its description precisely fits that of documents contemplated by s 28(1)(ba) of the Act as is confirmed by both the evidence of Sammut and an inspection of the document. I accept Sammut's evidence that document 5 contains highly sensitive financial and commercial information which appears to me to go beyond what might be described as "purely statistical, technical or scientific material" and thereby be excluded by operation of s 28(3) of the Act from the application of s 28(1) of the Act. It is exempt from disclosure pursuant to s 28(1)(ba). Sammut's uncontradicted evidence as to disclosure being likely to expose the respondent unreasonably to disadvantage, establishes its exemption under s 34(4)(a)(ii) also.

1. This copy presentation briefing also marked "Cabinet-in-Confidence" was prepared by the respondent and presented to the Committee of Cabinet. It is claimed to be exempt pursuant to ss 28(1)(b) and 28(1)(d) of the Act.
2. The evidence was that it was commissioned or prepared by Sammut for submission to the Committee for its consideration that being a substantial purpose for its preparation. I am satisfied that document 6 contains material which goes beyond what might be described as "purely statistical, technical or scientific material" and thereby be excluded by operation of s 28(3) of the Act from the application of s 28(1) of the Act. It is clearly exempt from disclosure pursuant to s 28(1)(b). However, upon the evidence, I am unable to conclude that its release would involve the disclosure of deliberation or decision of the Cabinet and I do not find it to be proven to be exempt pursuant to s 28(1)(d).

1. Described as a graph in the schedule of documents in dispute, this document is claimed to be exempt pursuant to ss 28(1)(b) and 28(1)(d). Sammut's evidence as to its origins and purpose is similar to that given in regard to documents 1 and 6. I accept Sammut's evidence that document 7 contains highly sensitive financial and commercial information which appears to me to go beyond what might be described as "purely statistical, technical or scientific material" and thereby be excluded by operation of s 28(3) of the Act from the application of s 28(1) of the Act.
2. I find it to be exempt pursuant to s 28(1)(b) and for the same reason given in respect of the last document, I do not find it to be exempt pursuant to s 28(1)(d).

1. This document consists of the text of two emails. It is claimed to be exempt pursuant to ss 28(1)(d), 34(4)(a)(ii) and 30(1).
2. It was Sammut's evidence that the emails arose out of concerns raised at a meeting of the Committee of Cabinet and if released, would involve disclosure of a deliberation or decision of the Committee of Cabinet. Upon reading the document, I accept that evidence and find that the document is exempt from disclosure pursuant to s 28(1)(d), the exclusion from exemption pursuant to s 28(1) of the Act by operation of s 28(3) having no effect.
3. Upon the evidence of Sammut relating to the sensitive nature of the content and the likelihood of release exposing the State unreasonably to disadvantage, I find the document also to be exempt pursuant to s 34(4)(a)(ii).
4. Clearly enough, the document contains opinion and advice of the kind contemplated by s 30(1) of the Act. Upon the evidence, it is of a similar character to Document 1 and upon balance of competing public interests, I make the same finding as in the case of Document 1. The document is therefore also exempt pursuant to s 30(1) of the Act.

1. Document 9 also consists of the text of emails together with an attachment. This document is also claimed to be exempt pursuant to s 34(4)(a)(ii) and s 30(1). The evidence is that the document contains components of the public sector comparator cost estimates and consists of communication between external consultants, Government departments and Capital Projects Division officers and internal emails between these officers and officers of another agency. They contain opinion and advice. Upon the evidence of Sammut, release of the document would have the consequence envisaged by s 34(4)(a)(ii) and s 30(1). As regards balance of competing public interests, I make the same finding as in the case of the last document.
2. Accordingly, I find it to be exempt from release.

1. Although no submission was made in regard to editing, I considered the possibility of editing the documents so as to release some of the content and concluded that the documents did not lend themselves to meaningful or useful editing and that the exercise would have been fruitless.

1. It only remains to consider the application of s 50(4) of the Act which is as follows :

50 (4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. Section 50(4) has no application to cabinet documents but, in this case, may be considered in regard to documents otherwise found to be exempt from disclosure pursuant to s 30(1) and s 34(4)(a)(ii).
2. The application of s 50(4) involves a balancing of public interests (Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 879.
3. In this case, the competing public interests are on the one hand the public interest in access to documents and on the other hand the public interest in protection of the deliberative processes of Government and protecting an agency from unreasonable disadvantage.
4. As earlier stated, the concern is not merely with what may be determined to be interesting to the public but rather with what is for the public good or wellbeing of the public. (Director of Public Prosecution v Smith supra_)_.
5. Furthermore, release of otherwise exempt information must be a matter of requirement not merely preference. In Secretary to the Department of Justice v Osland [2007] VSCA 96 at 123, the Court said :

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. In this case, there was no evidence of public concern as to impropriety or other grave concern nor was there any evidence of need for "clearing of the air". The main concern appears to arise from comment made by the Victorian Auditor-General in his report of April 2008 in which he noted (at para 3.4.3) -

"... the desalination plant costs were based on a significant body of technical work on the project costs and risks. However, the decision was made to publish a lower profitability figure (ie a lower estimate) when a higher profitability figure was available"

"In general, where necessity forces a procuring agency to publish figures of low or variable reliability, it should inform the community that it is doing this".

1. In my opinion, in the absence of evidence of grave concerns or impropriety, the criticism implied in these observations of the Auditor-General does not give rise to a degree of public interest which could be said to outweigh the profound public interest in the protection of the deliberative processes of Government and in the avoidance of unreasonable disadvantage to an agency engaged in trade or commerce.
2. The evidence of Sammut was unreservedly that there was the potential for serious detriment to both the deliberative processes and to the agency should the information in dispute be released. He is well placed because of his role in Government to make that assessment and his views were not contradicted by other evidence. That finding is reinforced by the fact that there has been public release of the relevant content and the public sector comparator amount as required by the Partnership Victoria Policy.
3. In the result, I do not consider that the Tribunal should by resort to s 50(4) of the Act disclose any of the documents found otherwise to be exempt pursuant to s 30(1) or s 34(4)(a)(ii) of the Act.
4. Save as aforesaid, the decision of the respondent is affirmed.