1. Under s 55K of the Freedom of Information Act 1982 ('FOI Act'), I affirm the revised decision of 7 October 2024 made under s 55G of the FOI Act[1].

1. This Information Commissioner review ('IC review') decision considers the application of s 47C (deliberative matter) to documents concerning the decision-making process of a presiding member of the former Administrative Appeals Tribunal (AAT). The IC review discusses the application of s 47C of the FOI Act and relevant parts of the Guidelines[2] to the documents which include draft decisions.

1. On 24 June 2021, the applicant applied to the AAT under the FOI Act for:

access to all documents created on or after 31 March 2021 relating to the decision [being a decision on 9 February 2021 of a presiding member of the AAT], or the making of the decision, or my application in respect of which the decision was made.

1. The AAT initially identified two documents within the scope of the request and decided on 26 July 2021 ('the original decision') to grant partial access to one document and to refuse access to one document. The original decision was affirmed by the AAT on 3 September 2021, on internal review requested by the applicant ('the internal review decision').
2. On 9 September 2021, the applicant applied for an IC review of the internal review decision. On 12 September 2024, during the course of the IC review and pursuant to s 55V of the FOI Act, the Office of the Australian Information Commissioner ('OAIC') required the AAT to conduct further searches for documents within scope.
3. On 7 October 2024, after the AAT conducted the further searches referred to at paragraph [5] above, it made a revised decision under s 55G of[3]the FOI Act3 ('the revised decision') in relation to twelve additional documents within scope. In the revised decision the AAT granted partial access to seven of the aforementioned documents (marked 'A', 'C', 'E', 'F', 'H', 'J' and 'L') and refused access to five of the aforementioned documents (marked 'B', 'D', 'G', 'I', 'K'), claiming exemptions under

ss 47E(c), 47E(d) and 47C of the FOI Act. 4. In an email to the OAIC on 27 October 2024, the applicant confined the scope of the IC review to the five documents marked 'B', 'C', 'D', 'G', 'I', 'K' that are claimed to be subject to s 47C ('the documents at issue'), stating:

... I wish to continue with the OAIC review on the grounds that the conditional exemptions under section 47C have been improperly claimed (Similar considerations may apply for the redactions under sections 47E(d) and 47E(c) but I am not concerned with that material).

1. The applicant contends that the Administrative Review Tribunal (ART) has no authority to maintain the exemptions claimed by the AAT under s 47C in relation to the access request, as follows:

The Administrative Appeals Tribunal ... ceased to exist on 13 October 2024 with the repeal of the Administrative Appeals Tribunal Act. The new body, the Administrative Review Tribunal, was established [under] the Administrative Review Tribunal Act [and the] repeal of the AAT Act and the enactment of the ART Act means the ART is a different agency, not simply a renamed AAT. There is nothing in the ART Act that provides that the ART is the same agency or entity as the AAT [and] the 'agency' for which any deliberative material may have been "in the course of, or for the purposes of, the deliberative processes involved in the functions of" was the AAT, not the ART ... there is no scope for the ART to use section 47C to redact or withhold documents or parts of documents containing deliberative material "in the course of, or for the purposes of, the deliberative processes involved in the functions of" the AAT, because the AAT is not an agency, because it no longer exists. I understand that an 'agency' within the meaning of the FOI Act does not include a former agency. Subsections 47C(1)(b) and (c) are also not applicable.[4]

1. While the applicant correctly observes that the AAT has been abolished and replaced by the ART[5], it does not follow (as I understand the applicant's contention) that the decision-making actions of the former AAT are correspondingly 'abolished', such that 'there is no scope for the ART to use section 47C to redact or withhold documents or parts of [the documents at issue] containing deliberative material'. In this regard, the provisions of the ART's enabling Acts must be read in conjunction with the operation of s 7(2) of the Acts Interpretation Act 1901 ('s 7(2)'), which provides:

(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; ...

1. In light of the operation of s 7(2) in the present circumstances, it would appear that the applicant has misconceived the effect of the abolition of the AAT. Additionally, under the provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 ('the transitional provisions')[6], the ART is, from 14 October 2024, the proper respondent in this IC review and has authority to maintain the AAT's claim under s 47C.
2. Accordingly, the issue to be decided in this IC review is whether the material in the documents at issue claimed to be conditionally exempt under s 47C of the FOI Act is conditionally exempt under that provision, and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
3. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[7]
4. In making my decision, I have had regard to the following:
   • the revised decision and cognate reasons
   • the documents at issue
   • the FOI Act[8]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[9] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[10] and
   • the parties' submissions.

1. A document is conditionally exempt under s 47C if its disclosure would disclose matter ('deliberative matter') in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or a Minister or the Government of the Commonwealth.
2. Deputy President Forgie explained in Wood; Secretary, Department of Prime Minister and Cabinet (Freedom of information) [2015] AATA 945 ('Wood')[11] that the words 'opinion', 'advice', and 'recommendations' in s 47C(1) of the FOI Act all involve consideration, followed by the formation of a view either about a certain subject or a course of action, and the subsequent transmission of that view. Similarly, the words 'consultation' and 'deliberation' both involve the notion of consideration but may not necessarily lead to the formation of an opinion, advice, or recommendation.
3. The revised decision noted:

Documents B, D, G, I and K are draft decisions which were attached to emails between the presiding member and the Legal and Proofreading sections. These documents were provided for review and checking purposes. At this stage, the documents were in draft form and were not finalised until the member considered any suggested considerations by the Legal section or proofreading corrections picked up by the proof-reader. Therefore, it remained open to the member to alter her decision up until it was finalised. For that reason I find that documents B, D, G, I and K are only draft or interim decisions and conditionally exempt as deliberative matter for the purposes of section 47C.

Document C is an email from a Senior Legal Services officer containing an opinion prepared for the purposes of consideration of facts in the matter of 2021/M157987. It is for the member to decide whether she agrees with this opinion in the deliberation of the case. I am satisfied that this opinion is deliberative matter within the definition of section 47C of the FOI Act.[12]

1. As set out at paragraph [8] above, the applicant has provided submissions focussing on their view of the effect of the abolition of the AAT.
2. I have reviewed unedited copies of the documents at issue. I am of the view that the description of the documents at issue set out at paragraph [16] above is correct. As pointed out in th[13]Guidelines13, s 47C is characterised by a three-stage decision making process. Applying this process:
   • I am satisfied that the documents at issue are deliberative because they comprise advice, opinions and draft documents provided for review and checking purposes.
   • I am satisfied that the material was recorded in the course of the deliberative process of the presiding member making a review decision. This deliberative process continued until the decision was finalised.
   • I am satisfied that the deliberative process is central to the review function exercised at the time by the AAT. As set out above at paragraph [10] the abolition of the AAT and its replacement with the ART does not affect the operation of the AAT's functions at the time.

1. I find that the documents at issue are conditionally exempt under s 47C of the FOI Act.

Whether access would be contrary to the public interest (s 11A(5))

1. Having found the documents at issue to be conditionally exempt under s 47C of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[14] In considering the public interest, I have had regard to the parties' submissions which are set out below.
2. In regard to the abovementioned public interest, the applicant contends the following:

The FOI Act does not otherwise evince an intention to protect the working of former but no longer existing government agencies. The right of access granted by section 11 is balanced by a number of exemptions and conditional exemptions, many of which exist to protect the proper functioning of government, but that purpose is not served by extending the operation of the exemptions to defunct agencies which no longer function and so do not in fact contribute in any way to the functioning of government.[15]

1. In regard to the abovementioned public interest, the revised decision states:

One factor for disclosure is increased openness and accountability for the decision- making process. I give this some weight. However, the release of the document would not assist in informing public debate on a matter of public importance, promote effective oversight of public expenditure or allow you access to [the applicant's] own personal information because the final decision was provided to [the applicant] at finalisation.

However, there is a public interest in members being able to consider their decisions and the wording of their decisions, up to the point at which they are satisfied the decision is final. The release of earlier versions of a member's deliberations would impinge on the independence and quality of their work by inhibiting members' ability to revise and reconsider circumstances until they are satisfied that they have made the final decision. This deliberative function is at the core of the administrative review function of the Tribunal and is the primary role of statutorily appointed Tribunal members.[16]

1. Taking into account the submissions of the parties, I note the general public interest in making information held by the Government accessible to the public favours disclosure of the conditionally exempt material. However, I consider that this public interest consideration carries little weight in this case. Disclosure of the documents would not reveal information about the Government's operations, or the reasons for a decision since that final decision has been provided. Nor would it enhance the scrutiny of government decision-making in any meaningful way or enable effective oversight of public expenditure.
2. Further, I regard the object of openness and accountability for the decision-making process in this present matter as being satisfied by two factors; namely, the general legal obligation to provide procedural fairness during the course of the hearing before the presiding member and the presiding member's decision being appellable on its face. I consider these well-established legal protections to be persuasive factors.
3. By extension of the above considerations, in circumstances where there is no evidence before me of a public interest in what might be described as 'going behind' the presiding member's decision, I accept that there is a public interest in members being able to consider their decisions up until they are finalised. I consider that release of draft decisions would impinge the ability of members to revise decisions, seek advice and reconsider circumstances and therefore impact the quality of their work.

1. On balance, at this time, I consider that the public interest factors against disclosure, to which I have given significant weight, outweigh the factors favouring disclosure.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

Section 47C(2) of the FOI Act declares that deliberative matter does not include operational information (defined in section 8A of the FOI Act) or purely factual material.

(3) This section does not apply to any of the following:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency;

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

As discussed in the FOI Guidelines, a decision maker must be satisfied of 3 requirements for this conditional exemption to apply:

Firstly, the decision maker must be satisfied that information within the scope of the request includes deliberative matter. Secondly, if the decision maker is satisfied, they are then required to be satisfied that the deliberative matter was obtained, prepared or recorded in the course of, or for the purposes of, deliberative processes. Thirdly, the decision maker must be satisfied that the deliberative processes were involved in the functions exercised by or intended to be exercised by an Australian Government agency or minister.[17]

Deliberative matter is content that is in the nature of, or relating to either:

• an opinion, advice or recommendation that has been obtained, prepared or recorded or

• a consultation or deliberation that has taken place, in the course of, or for the purposes of, a deliberative process of the government, an agency or minister (s 47C(1)).

'Deliberative matter' does not include operational information or purely factual material (s 47C(2)). 'Operational information' is defined in s 8A and is information that an agency must publish under the Information Publication Scheme (see Part 13 of the FOI Guidelines).[18]

The FOI Guidelines state that the conditional exemption does not apply to:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters (see [6.73] - [6.72] below)

(b) reports of a body or organisation, prescribed by the regulations, that is established within an agency (currently none are prescribed)

(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function (s 47C(3)).[19]

Agencies and ministers should only claim this conditional exemption in clearly applicable circumstances, noting that s 47C is subject to an overriding public interest test that is weighted toward disclosure. Not every document generated or held by a policy area of an agency is 'deliberative' in the sense used in this provision, even if it appears to deal with the development or implementation of a policy. This is reinforced by the language of the FOI Act which describes what does not constitute 'deliberative matter'. A decision maker should ensure that the content of a document strictly conforms with the criteria for identifying 'deliberative matter' prepared or recorded for the purposes of a 'deliberative process' before claiming this conditional exemption (see [6.46] above and [6.59] - [6.58] below).[20]

In relation to assessing 'deliberative matter' the FOI Guidelines explain:

• The presence or absence of particular words or phrases is not a reliable indication of whether a document includes deliberative matter. The agency should assess the substance and content of the document before concluding it includes deliberative matter. Similarly, the format or class of the document, such as a ministerial brief or submission, or the document being a draft version of a later document does not automatically designate the content as deliberative matter.

Material that is not deliberative matter, where not already excluded as operational information, purely factual material or a scientific report, would include: > > • content that is merely descriptive > > • incidental administrative content > > • procedural or day to day content > > • the decision or conclusion reached at the end of the deliberative process > > • matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.[21]

• The FOI Guidelines explain that a deliberative process involves the exercise of judgement in developing and making a selection from different options:

The action of deliberating, in common understanding, involves the weighing up or evaluation of competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. > > It is not enough for the purposes of s 47C(1) that an opinion, advice or recommendation is merely obtained, prepared or recorded; it must be obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of the agency, minister or government. > > The functions of an agency are usually found in the Administrative Arrangements Orders or the instrument or Act that established the agency. For the purposes of the FOI Act, the functions include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, such as code of conduct investigations, may also be deliberative processes. > > ... > > An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process. However, it is not sufficient that an agency or minister merely has a document in its possession that contains information referring to matters for which the agency or minister has responsibility.[22]

In relation to 'purely factual material', the FOI Guidelines explain:

'Purely factual material' does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.

Where a decision maker finds it difficult to separate the purely factual material from the deliberative matter, both the elements may be exempt. If the 2 elements can be separated, the decision maker should consider giving the applicant a copy with deletions under s 22 to provide access to the purely factual material.[23]

Section 11A(5)of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when deciding whether access would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government

(b) access to the document could result in any person misinterpreting or misunderstanding the document

(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made

(d) access to the document could result in confusion or unnecessary debate.

In addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[24]

To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies based on the particular facts at the time the decision is made.[25]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] The Administrative Review Tribunal ( ART') commenced on 14 October 2024 under the Administrative Review Tribunal Act 2024 ('the ART Act') and replaced the Administrative Appeals Tribunal ('AAT') established under the Administrative Appeals Tribunal Act 1975. The ART is the respondent in this IC review and, for the purposes of the IC review, maintains the exemption claims made by the AAT in relation to the access request.

[2] Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act.

[3] Section55G of the FOI Act provides that an agency or Minister may vary (or set aside and substitute) its original decision at any time during an IC review if the variation or substitution would have an effect of: (a) giving access to a document in accordance with the request; or (b) relieving the IC review applicant from liability to pay a charge; or (c) requiring a record of personal information to be amended or annotated in accordance with the application.

[4] The applicant makes additional submissions in support of this contention in an email of 24 November 2024.

[6] See clause 26 of Part 6 ('Other things done by, or in relation to, the AAT') of Schedule 16 to the transitional provisions, which provides_:_

(1) The new law applies in relation to a thing done by, or in relation to, the AAT as if the thing had been done by, or in relation to, the ART.

[8] Sections 11A and 47C as set out in Annexure A.

[9] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s93A of the Freedom of Information Act 1982 (FOI Guidelines).

[11] Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of information) [2015] AATA 945.

[12] Notice of revised decision dated 7 October 2024.

[15] Applicant's submissions of 24 November 2024.

[16] Notice of revised decision dated 7 October 2024.

[21] FOI Guidelines at [6.61] - [6.62] (footnotes omitted).

[22] FOI Guidelines at [6.54] - [6.58] (footnotes omitted)

[23] FOI Guidelines at [6.70] - [6.71] (footnotes omitted).

[24] FOI Guidelines at [6.229] - [6.233].

[25] FOI Guidelines at [6.238] (footnote omitted).