promoting critical and free enquiry, informed intellectual discourse and public debate within the University and in the wider society;

1. Contravened the Equal Opportunity Act 2010, by discriminating against him related to his religious belief or activity; and/or

1. Acted improperly in the situation that held an honorary position, with some remuneration and remunerative possibilities; an issue with implications for all Monash University employees.

1. Dr Cowen pointed to what he describes as his previous experience of abridgement of academic freedom at Monash in 2012. At the time he was an honorary associate. He published in the Journal of the Family Association of Australia, of which he is a patron, an article critiquing the Safe Schools Program, which, in his words, incurred the extreme displeasure of an external activist. Monash published a public dis-association of it from his views. Dr Cowen says, supported by correspondence of the time, that when he complained, the then Vice-Chancellor apologised for the distress caused to him by Monash's actions, reaffirmed the principle of academic freedom and promoted him to a senior honorary adjunct position.
2. He contrasts that distressing but quickly resolved response in 2012 to his 2015/2016 experience.
3. With reference to the documents provided to him, Dr Cowen submitted:

Prima facie, the [documents released to him] seems to suggest that two external political activists contacted the office of the Vice-Chancellor. Their opposition to my views on the marriage debate coincided with [the] view of the Vice-Chancellor (with which she had disturbingly sought to align University as a whole) whose Office then instructed the Dean to revoke my position at Monash. Even upon my request from the Vice-Chancellor, in a matter as serious as the dismissal of an academic staff member, there was ostensibly no attempt made to read and evaluate the material I had contributed to the marriage debate other than to accept the slanderous and defamatory description by [the Complainant] as "homophobic" and "bigoted". It is absolutely extraordinary that an institution with the rationale of promoting free and critical discussion on matters of public debate should ostensibly refuse even to examine the material in question before dismissing an academic.[9]

1. Dr Cowen submitted the grounds for his dismissal as stated by Monash were spurious and mere camouflage for the real intent of Monash to constrict free public debate. He further submitted, as this was in the context that the Vice-Chancellor's, "conduct in putting Monash University behind one side of the public debate on marriage is surprising to say the least". In his view in the context of academic freedom, Monash should have taken no position on the topic but rather been a venue for discussion of opinions on matters of public debate.
2. On the issue of the Monash environment concerning freedom of expression for those who hold religious beliefs contrary to marriage equality, Dr Cowen called Fr Geoff Harvey, Orthodox Chaplain Monash University Religious Centre to give evidence.
3. Fr Harvey expressed his opinion, also on behalf of four colleagues who are chaplains, that Monash University's support for expression of same-sex sexuality has created an atmosphere of fear amongst students and others who hold contrary religious belief's leading to adverse consequences for those holding those religious beliefs. In his written statement he said in part Monash's:

... driving of a position advocating same-sex marriage, with global emails and information seminars pushed onto University staff and students which carried this message, created real inhibitions of debate and free speech within the broad sections of religious students and staff who form our constituency. A politicisation of the University and a single view - against that of many members of the University community - made them uncomfortable, frustrated, resentful and inhibited about expressing their own feelings and values. ...

1. Turning to authorities concerning the application of s 30(1), in Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889, Hampel J summarised the considerations that might arise under s 30(1)(b) of the Act:[10]
   • (a) The nature of the information and the nature of the document. The more sensitive or contentious the issues involved in the communication, the more likely it is that the communication should not be disclosed;
   • (b) Draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release, particularly when the final version of the document has been made public;
   • (c) It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill-informed debate, to give a spurious standing to such documents or promote pointless and captious debate about what might have happened rather than what did;
   • (d) Decision-makers should be judged on the final decision and their reasons for it, not on what might have been considered or recommended by others in preliminary or draft internal working documents;
   • (e) It is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of a decision-making, investigative or other process;
   • (f) Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process; and
   • (g) Public interest concerns the interest of the public as distinct from the interest of individuals.
2. Turning from general principles to decisions more focused on the nature of Document 3, in Yarra City Council v Roads Corporation [2009] VCAT 2646, VCAT said:

There is a long line of authority in this Tribunal and its predecessor, the Administrative Appeals Tribunal of Victoria to the effect that draft and incomplete documents which form part of the deliberative process are not appropriate for release. The rationale for that is that to release a draft implicitly attributed to a Government agency or perhaps a Minister or the Government as a whole of views or policies or determinations which were ultimately not taken at all or held at all or were taken or held only in a materially amended form. Hence in the case of a draft which is found to fall within Section 30(1)(a) of the Freedom of Information Act in terms of Section 30(1)(b), the public interest will generally come down against release and in favour of holding the document exempt.

1. In Graze v Commissioner of State Revenue [2013] VCAT 869 at [57], VCAT said:

The outcome of the deliberative process of which this was part is to be found in the letter which the Commissioner wrote to the Grazes. What is important, therefore, is the outcome of the deliberative process. It would be confusing and inappropriate to make public something which is merely a step along the way to a final determination which has, so far as these applicants are concerned, already been made known.

1. In Coulson v Freedom of Information Commissioner (Review and Regulation) [2016] VCAT 1521, I discussed the text redacted from the email chain under s 30(1) being two officer's opinions as to the content of correspondence to be sent to Mr Coulson. I said:

... It is difficult to imagine a world where officers could not collaborate via email toward a final version of a document, without being concerned about the release of the email. That said, the position could be different if the email contained some form of inappropriate content, such that releasing it would not be contrary the public interest.

1. Similarly here, it is difficult to imagine a world where Monash officers could not reasonably communicate without being concerned about release of deliberative emails, the purpose of leading to a final response to an issue raised, which will represent the decision in the matter. As discussed in Graze, what is important is the outcome of the deliberative process, here known to Dr Cowen through the content of the Dean's and the Vice-Chancellors decision discussed above.
2. That said, the situation could arise where disclosure of the content of an email in the context of this case was appropriate because that content showed form of inappropriate content concerning the eventual decision, not disclosed to a person in Dr Cowen's position.
3. Concerning Document 3 and s 30(1)(a), the relevant text is mix of opinion, advice and/or recommendation prepared by an officer or consultation or deliberation that has taken place between officers which took place in the course of, or for the purpose of, the Monash's deliberative processes.
4. This was in the context of the early stages of formulating a response to the Complaint and Notification.
5. Concerning Document 3 and s 30(1)(b), in my view, release would be contrary to the public interest.

1. In the context of having read the documents in dispute, in my view there is nothing in to indicate improper motive on the part of Monash as it responded to the Complaint and the Notification. This is consistent with Mr Calder's evidence.
2. In saying the above, I do not form an opinion as to the merit of the decision in terms of the judgement as to whether Dr Cowen breached Monash email policy or the extent to whether his conduct had the potential to mislead concerning support by Monash for his position. Those are matters for Monash and not to be decided in an FOI proceeding.
3. Concerning freedom of academic expression and Monash's obligations not to discriminate on the basis of religious belief or activity, Dr Cowen is able to pursue any concerns he has on those matters on the basis of the information already provided to him.
4. Therefore, in my view the substance of Document 3 it is exempt under s 30(1).

1. This 11 December 2015 email starts with the Notification from the other councillor to a Monash officer, who forwards the email to an officer at Monash, who forwards the email to another officer.
2. With Dr Cowen not seeking the name of the notifier, noting he has assumed who this person is, Monash's decision to exempt that information does not arise for decision in this proceeding.
3. Concerning redaction under s 33(1), one officer, the recipient of an email dated 11 December 2015 at 5:23 pm, has indicated in the course of this proceeding that he consents to the release of his personal information. Therefore, I have varied Monash's decision to release that personal affairs information in Document 4 and wherever else that offices personal affairs information occurs in other documents in dispute.
4. Concerning the other officers, who have indicated no position concerning release, drawing on the reasons given above, the personal affairs information related to those officers is exempt under s 33(1). It is unreasonable to create the risk that for no good purpose they could be drawn into debate about the issues in question.
5. The text of the emails shows nothing more than these offices starting the process of a response to the notification. For the reasons given concerning Document 3 that text is exempt under s 30(1).
6. As Document 4 appears repeatedly in email chains discussed below. This decision applies to that text wherever it appears. Similarly, text decided to be exempt in a particular document is also decided to be exempt wherever it appears in other documents in dispute.

1. Document 5, related to the Notification, is an 11 December 2015 email chain picking up content of Document 4 with further emails later in time. Concerning the fresh material, Monash claims exemptions under s 33(1).
2. The version of Document 5 released to Dr Cowen shows a Monash officer asking another officer to put Dr Cowen's planned promotion on hold pending further notice, with no explanation. There is also a reference in that version to an officer saying "I'll put something together and forward for your comment".
3. For the reasons given above, the personal affairs information related to the officers is exempt under s 33(1).

1. Document 6, related to the Notification, is an 11 December 2015 email chain picking up content of Document 5 with a further email later in time. Concerning the fresh material, Monash claims exemption under s 30(1) and s 33(1).
2. For the reasons given above, the personal affairs information is exempt under s 33(1).
3. The substance of the email is deliberative material between two offices about the appropriate action to take concerning the Notification. For the reasons given concerning Document 3, this text is exempt under s 30(1).

1. Document 7 is simply an out of office notification in reply to one of the emails, which names officers. Those officers are not involved in the conversations in the documents in question. One of the officers, not holding an executive position (I am not aware of the status of the other officer), objected to disclosure.
2. For the reasons given above, the personal affairs information is exempt under s 33(1).

1. Document 8, related to the Notification, is an 12 December 2015 email chain picking up content of Document 5 and saying, in text released to Dr Cowen, that his promotion would be put on hold. Concerning the fresh material, Monash claims exemptions under s 33(1).
2. For the reasons given above, the personal affairs information is exempt under s 33(1).

1. Document 9, related to the Notification, is related to Document 8 with the new email (12 December 2015) saying, in text released to Dr Cowen, that his promotion, "will need to be put on hold".
2. To the extent that there is any fresh text claimed exempt under s 30(1) - it is a little difficult to tell when dealing with hard copies of email chains - I agree it is so exempt.
3. For the reasons given above, the personal affairs information is exempt under s 33(1).

1. Document 10 is an email chain picking up content of Document 6 with a new email dated 14 December 2015 expressing opinion by one Monash officer to another Monash officer concerning Dr Cowen's use of his Monash email related to this proceeding and appropriate options that Monash may take.
2. Monash claims the document is exempt under s 30(1) and s 33(1) of the FOI Act.
3. For reasons given above, exemptions apply with respect to Document 10 as decided by Monash.

1. Document 11 continues the email chain from Document 10, with a very brief email (14 December 2015) comment that a proposal put to the receiver, "sounds reasonable to me" (that text released).
2. For the reasons given above the redacted text is exempt under s 33(1).

1. Here I speak elliptically to convey my decision that the redacted text in this 15 December 2015 email (4:22 pm) from a Monash officer to a person is not exempt under s 33(1). That is necessary to preserve the status quo until it is known whether either the addressee or Monash contest that decision (see below).
2. It is reasonably obvious from the text that is disclosed to Dr Cowen to whom the email is addressed. In my view, that person is unlikely to be troubled by the disclosure.
3. The Monash officer sending it is of sufficient seniority such that there is no basis for exemption under s 33(1).
4. The name of the less senior person which appears in Document 12, is exempt under s 33(1).

1. For some reason, Document 13 is simply a differently formatted version of Document 12. I repeat my decision concerning Document 12.

1. As is apparent from the substance released to Dr Cowen, these 16 December 2015 emails relate to the decision to withdraw the offer of an associate position to Dr Cowen and the drafting of an email to advise him of that decision and that his ability to use Monash email would end on 31 December 2015.
2. For the reasons given above the redacted text is exempt under s 33(1).

1. Document 15 is a previously undiscussed email chain. On 21 December 2015, Dr Cowen responded to the Dean's advice that she was withdrawing her recent offer of associate appointment at Monash, ending his access to the Monash email, making alternative arrangements for Monash library access.
2. The email chain includes a copy of the Dean's email advising Dr Cowen of the decision, also dated 21 December and other discussion between the Dean and Dr Cowen, including the detail of arranging ongoing access to the Monash library. The email exchange is cordial.
3. I mentioned this for completeness. As far as I understand while, surprisingly, at one point Monash had redacted personal affairs information relating to the Dean, given the email exchange was between Dr Cowen and the Dean, by the time I was hearing this dispute, that information had been released to Dr Cowen. Therefore, Document 15 was no longer in dispute between the parties.

1. Apart from the Dean's email of 21 December 2015, already released to Dr Cowen, this 11 January 2016 email exchange between Monash officers (in virtually identical text and format between these three versions of the emails) discusses Dr Cowen's response to the Dean's decision.
2. For the reasons given above, the redacted text, is exempt under s 30(1) and s 33(1).

1. This document continues the document chain from Document 17. The substance of the new email dated 12 January 2016 is exempt under s 30(1) and s 33(1).

1. These 11 and 12 January 2016 emails discuss between various Monash officers, drafts of the Vice-Chancellor's reply to Dr Cowen's request that she review the Dean's decision.
2. These are the archetypal type of drafts which are exempt from release under s 30(1) and 33(1).

1. Having decided personal affairs information is to be disclosed, with those persons having not intervened in this proceeding, s 53A(3) of the FOI Act requires that if practicable they be given notice of my decision. Adapting a procedure previously used by VCAT in similar circumstances,[11] I have directed Monash to give notice to the persons concerned such that they have the opportunity within 28 days to object to release. That scenario seems unlikely.

1. Dr Cowen sought to invoke the public interest override under s 50(4) of the Act to release the documents found exempt under s 30(1). Section 50(4) does not apply to exemption under s 33(1).
2. Section 50(4) says:

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. The High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at [12] to [14]:

Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion.

The FOI Act neither defines nor expressly limits the range of matters relevant to the 'public interest' which may require that access should be granted. As was said in the joint judgment in this Court on the first appeal, "[t]here are obvious difficulties in giving the phrase 'public interest' as it appears in s 50(4) a fixed and precise content". The nature of "public interest" determinations in the exercise of statutory powers was described in O'Sullivan v Farrer:

"the expression 'in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view".

The power to grant access on public interest grounds is not, in terms, vested in the relevant Minister or agency. By virtue of s 16 they retain their freedom to grant access to exempt documents. Rather, it is a power included in the powers conferred on the Tribunal. In this respect it is unique in freedom of information legislation in Australia. It has been called a "significant and exceptional" power and "a most extraordinary provision". These epithets do not justify its characterisation, propounded by the Secretary, as a power to be exercised only in "exceptional circumstances". Those words are not in the statutory text. Their use may misdirect the inquiry required by s 50(4). They may be taken erroneously to limit the range of matters relevant to the public interest. Nor do they sit easily with the proper approach to the construction of the FOI Act, which is to "further, rather than hinder, free access to information" under it.

1. Their Honours continued with the oft quoted statement:

Having said that, it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker.

1. While I accept Dr Cowen's submissions that freedom of academic expression and freedom to hold and practice religious beliefs in a university setting are important public interests, I reject his submission that the public interest requires that access should be given to the documents in contest in this proceeding.
2. As described above, having decided that disclosure of the text in question is contrary to the public interest for the reasons given above, there being nothing of an inappropriate nature in the text, it follows that I am of the view that nothing in the text, if access was given, would advance the public interests Dr Cowen asserts.
3. In late 2015 and early 2016, Dr Cowen was advised of Monash's decision and the reasons for that decision. The various documents provided to him provide further insights. He is free to pursue debate concerning academic and religious freedom as he chooses.
4. To the extent that he seeks the documents to pursue personal interests, s 50(4) does not apply.

[2] With Dr Cowen not seeking the name of the notifier, exemption under s 35 became irrelevant to this proceeding.

[3] For example, see the above-mentioned Marke decision, Page v Metropolitan Transit Authority (1988) VAR 243 and XYZ v Victoria Police [2010] VCAT 255.

[4] Monash information technology use policy - staff and other authorised users, clause 2.1.

[7] If in fact that information has not already been disclosed to Dr Cowen, this detail not completely obvious in the context of the exempt documents that have been provided to me.

[8] Under the s53A (of the FOI Act) process required to be undertaking in a proceeding such as this.

[9] Dr Cowen's submission in this proceeding, pages 5 and 6.

[11] Mond v Department of Justice (General) [2005] VCAT 2817 (22 December 2005)