//
[2005] VCAT 2083
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2005-10-06
Ms J
Original judgment source is linked above.
General List- Freedom of Information - Mitcham Frankston Freeway project - Public Sector Comparator and earlier documents relating to Scoresby Freeway Project - correspondence between Ministers - Freedom of Information Act 1982, ss 28, 30, 34, 36
1 The decision under review in respect of disputed documents 1, 2, 4 and 5 is affirmed.
2 The decision under review in respect of disputed document 3 is set aside, and there is substituted for it a decision releasing document 3 to the applicant.
3 Costs reserved.
4 This order is stayed for 28 days from the date of the order.
Mr Douglas Meagher QC, Mr Stuart Wood & Mr Nik Dragojlovic instructed by Carlo Furletti, solicitor
Mr Peter Hanks QC & Ms J Macdonnell instructed by Maddocks, solicitors
1 This is an application to review a decision of the respondent under the Freedom of Information Act 1982 ("the Act"), refusing to release parts or all of 5 documents relating to the Mitcham Frankston Freeway project.
2 On 13 December 2004, the applicant sought access to:
A copy of the 'Public Sector Comparator' and correspondence entered into regarding the development of the 'Public Sector Comparator' for the Public Private Partnership project of Mitcham-Frankston-Freeway (or its predecessor projects of Eastern Freeway and Scoresby Freeway), together with any Ministerial Briefing Notes completed which discussed the results of the Tender.
3 By letter dated 31 January 2005, the respondent's Freedom of Information Officer notified the applicant that she had located five documents relevant to his request ("the disputed documents"), and had decided to grant access to two of the disputed documents in part, but to deny access to three of the disputed documents in full. Access was denied to the three disputed documents in reliance upon section 28(1)(b),(c) or (d) of the Act and, in respect of one of the disputed documents, section 34(4)(a)(ii) of the Act.
4 By letter dated 10 February 2005, the applicant sought internal review of the Officer's decision. By letter dated 28 February 2005, the respondent's Review Officer confirmed the decision concerning the exemptions, for the reasons relied upon by the Officer, and informed the applicant that no further documents would be released to him. On 29 April 2005, the applicant filed an application for review.
5 At the hearing before me, the respondent claimed exemption for each of the disputed documents under section 28(1)(d) and section 30(1) of the Act. Exemption was also claimed for documents 1 and 2 under sections 28(1)(b) and (ba) of the Act; for document 3 under section 34(4)(a)(ii) of the Act; and for documents 1, 2 and 3 under section 36(1)(b) of the Act.
6 In 2001 and 2002, the Victorian Government was considering the extension of the Eastern Freeway from Springvale Road to the Ringwood Bypass ("the Eastern Freeway Extension Project**"**). The government also considered the viability of constructing a freeway link between the Eastern Freeway Extension/Ringwood Bypass and the Frankston Freeway ("the Scoresby Freeway Project").
7 Since mid 2001, the Department of Treasury and Finance has required all asset proposals (including those to be conducted through the Partnerships Victoria policy) likely to cost more than $5 million to be evaluated in compliance with its "Investment Evaluation: Policy and Guidelines", published in 1996. According to the Guidelines, such new investment projects must be accompanied by a Business Case and, where relevant, an asset proposal template. Each project is then submitted to the Expenditure Review Committee ("ERC") of Cabinet for approval.
8 In deciding whether to approve a project, the ERC is guided by the Business Case, the asset proposal template and any comments or recommendations by the Treasurer.
9 In June 2002, a seven-volume draft version of the Business Case for the Scoresby Freeway Project was completed. On 21 August 2002, there was a meeting of the ERC of Cabinet to consider the Scoresby Freeway Project and Eastern Freeway Extension Project proposals. The 7-volume final version of the Scoresby Freeway project Business Case was available at the ERC meeting to the ERC members. At the meeting, the ERC considered a written submission on behalf of the Minister for Transport. There was debate and discussion by ERC members of the merits of each proposal.
10 Following that meeting, the Victorian Government announced that the two proposals would be combined into a single project - the Mitcham Frankston Freeway Project, under the Partnerships Victoria policy. A Ministerial media release to this effect was issued on 23 September 2002.
11 The final version of the Business Case for the Scoresby Freeway project was completed in August 2002. It incorporated the material being prepared until then for the Eastern Freeway Extension project Business Case.
12 Partnerships Victoria is a policy launched by the Victorian Government in 2000 which aimed to establish collaborative relationships between the Government and the private sector for the provision of public infrastructure and related ancillary services. These relationships would usually involve a private sector entity agreeing to construct and maintain a significant item of physical infrastructure in return for the right (known as a concession) to operate that infrastructure for a specified term for payment after its construction. Prior to any decision to grant a concession, the government assesses private sector bids against public sector benchmarks to ensure value for money, as compared with the cost to government delivering the project itself. The Public Sector Comparator ("PSC") allows the government to calculate the hypothetical, full, risk-inclusive cost of providing the service over the life of the project. The Government will only deliver a project as a Partnerships Victoria project where those comparisons demonstrate value for money for a project. The government has published a number of documents concerning Partnerships Victoria projects (Exhibits A-G)[1].
13 According to the evidence of Treasurer Brumby to the Public Accounts and Estimates Committee (on 19 May 2004), the Victorian Government decided in around May 2003 that the Mitcham Frankston Freeway project would proceed as a privately funded project rather than as a public/private partnership project
14 The government then publicly invited Expressions of Interest from those interested in submitting proposals to construct and operate the Mitcham Frankston Freeway Project. In July 2003, the government established the South Eastern Integrated Transport Authority (SEITA) to manage the Mitcham Frankston Freeway project.
15 A meeting of the ERC was held on 22 July 2003, and SEITA was instructed by the ERC to finalise a PSC for the Mitcham Frankston Freeway project for a further meeting of the ERC. The final PSC for the Mitcham Frankston Freeway project was produced in February 2004, by Pricewaterhouse Coopers ("PWC").
16 In early October 2003, the government released a Request for Proposals to the ConnectEast and Transurban consortia, which had each expressed interest in submitting proposals to construct and operate the Mitcham Frankston Freeway project. There followed correspondence between the Minister for Transport and the Treasurer concerning progress of the Mitcham Frankston Freeway project and in particular of the preparation of the final PSC. On 25 February 2004, the ERC held a meeting at which it considered a submission "focused" on the final PSC for the Mitcham Frankston Freeway project.
17 In March or April 2004, the ConnectEast and Transurban consortia formally submitted their respective proposals for the construction and operation of the Mitcham Frankston Freeway project and in October 2004, the government awarded the contract for the Mitcham Frankston Freeway project to the ConnectEast consortium.
18 Document 1 is dated 14 June 2002 and is described as " Draft Business Case - Scoresby Integrated Transport Corridor Project (Relevant PSC equivalent sections from Volume 1)", provided by the Department of Infrastructure to the Department of Treasury and Finance.
19 Document 2 is dated 14 June 2002, and is described as "Draft Business Case-Scoresby Integrated Transport Corridor Project (Relevant PSC equivalent sections from Volume Seven)", provided by the Department of Infrastructure to the Department of Treasury and Finance.
20 Document 3 is dated February 2004 and is described as "Mitcham-Frankston Freeway Project- Final Public Sector Comparator Report", provided by Pricewaterhouse Coopers to the Department of Treasury and Finance.
21 Document 4 is dated 23 October 2003 and is described as a "Letter re: Mitcham-Frankston Freeway Project", sent by the Minister for Transport to the Treasurer. The respondent contends that paragraph 1 of the letter is exempt, and that paragraph 3 is outside the terms of the request.
22 Document 5 is dated 25 November 2003 and is described as a "Letter re: Mitcham-Frankston Freeway Project", sent by the Treasurer to the Minister for Transport. The respondent contends that paragraphs 2 and 5 of the letter are exempt and that the remainder of the letter is outside the terms of the request.
23 The Act is an important part of our democratic framework, promoting knowledge about the affairs of government and about governance practices: Re Minogue v Department of Justice[1]. It is therefore appropriate to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information: Victorian Public Service Board v Wright[2]; Ryder v Booth[3]. Section 3(2) of the Act makes clear Parliament's intention that the provisions of the Act are to be interpreted so as to further the object of extending, as far as possible, the right of the community to access information in the possession of the Victorian Government, limited only by exemptions necessary for the protection of essential public interest and private and business affairs. Accordingly, for a document to come within the Cabinet document exemption, it "must fit squarely within one of the four exceptions" in section 28(1) of the Act: Birnbauer v Department of Industry Technology and Resources[4] and Ryan v Department of Infrastructure[5].
24 Section 28(1) of the Act relevantly provides:
(a) the official record of any deliberation or decision of the Cabinet;
(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;
(c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or
(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.
(3) Sub-section (1) does not apply to a document referred to in a paragraph of that sub-section to the extent that the document 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.
(a) "Cabinet" includes a committee or sub-committee of Cabinet;
25 The "public interest override" in section 50(4) does not apply to exemptions made out under section 28 of the Act. However, the fact that a claim for exemption under section 28 fails does not preclude a claim for exemption on other grounds of documents which have the flavour of a Cabinet document: Re Birrell and Department of Premier and Cabinet (No 3)[6].
26 Given the potential for the exemption to be claimed in a way that substantially affects the availability of politically sensitive documents, it is important that section 28(1) be interpreted by reference to the purpose of the Act and the purpose of the exemption: Ryan v Department of Infrastructure[7].
27 Section 30(1) of the Act provides:
(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
28 Section 34(4)(a)(ii) provides that a document of an agency engaged in trade or commerce is exempt if it is "information of a business, commercial or financial nature that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage".
29 Section 36(1)(b) provides that a document is exempt if
....its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the Crown or of an agency.
30 The following principles have emerged concerning the exemptions in paragraphs (b),(ba) and (d) of section 28(1), section 28 (3), section 30(1), section 34(4)(a)(ii) and section 36(1)(b) of the Act:
• A document will only be exempt if the sole purpose, or one of the substantial purposes for which the document was prepared, was an exempt purpose: Re Mildenhall and Department of Premier and Cabinet (No 1)[8]; Re Herald & Weekly Times and Victorian Curriculum & Assessment Authority[9].
• "For consideration by the Cabinet" means a step in the deliberative process, and suggests that the purpose of the preparation of the document must be for submission for consideration by the Cabinet; Ryan[10]; Re Olexander and Department of Premier and Cabinet[11]; Peter Bayne, Freedom of Information[12].
• The exemption does not cover documents created to assist the preparation of a submission: Bayne[13]; nor does it cover all documents merely circulated to every Minister "for information": Re Olexander[14].
• Nor does it necessarily cover documents which, although physically submitted to Cabinet, were not created for the purpose of being considered by Cabinet, but for the purpose of preparing another document or documents to be considered by Cabinet: Ryan[15].
• A draft document which was not intended to be submitted to Cabinet and which was subsequently revised does not attract the exemption under this head: Re Wilson and Department of Premier and Cabinet[16].
• A document does not lose its exempt status if it is summarised, and the summary is submitted to Cabinet, with the document being made available if Cabinet members wanted to read it: Re Olexander[17].
• However, if the document is in fact a newly created document containing analysis based upon primary facts contained in other documents, then it is not a summary, and the original document will not be exempt: Ryan[18].
• Given the remedial character of the Act, Parliament would not have intended that virtually any document prepared by a department could be made exempt by simply placing it before Cabinet or a minister, or by forming an intention when it was prepared to place it before Cabinet or a minister: Ryan[19].
•
The document must be prepared for the purpose of instructing or informing the Minister, in advance, whether orally or in writing in relation to issues to be considered by the Cabinet: Re Cole and Department of Justice[20].
•
It is not enough that the document was prepared for the purpose of being placed before a minister, and is a document in relation to issues to be considered by the Cabinet; it is necessary that it be prepared for the purpose of briefing the minister: Ryan[21]. However, that need not be its sole purpose: Re Mildenhall[22]; Re Herald & Weekly Times[23].
•
The exemption should be limited to documents that have the character of briefing material, which they will do if they contain information and advice and are prepared for the purpose of being read by, and explained to, a minister: Ryan[24].
•
The word "briefing" means a short, accurate summary of the details of a plan or operation: Ryan[25].
•
The exemption is made out whether or not the document was in fact used to brief the Minister: Re Pullen and Alpine Resorts Commission[26].
•
"To be considered" requires an intention and expectation that a particular issue will be considered in the Cabinet and the exemption will be made out even if the issue is ultimately not considered by the Cabinet: Re Batchelor and Department of Premier and Cabinet[27]; Re Hulls and Department of Treasury and Finance (No 2)[28].
•
The mere fact that a matter is ultimately considered by Cabinet does not ex-post facto clothe a briefing paper with an exemption; nor does mere knowledge that the issue might arise in Cabinet at some stage in the future: Re Thwaites and Department of Health and Community Services[29].
•
It has yet to be determined whether a request by a Minister for a briefing in relation to a matter to be discussed by Cabinet is covered by this exemption as being prepared for the purpose of eliciting a briefing or whether the exemption applies only to documents forming part of the briefing: Re Pullen[30].
•
Covering letters and covering facsimile sheets may not fall within the exemption as being prepared for the purpose of briefing the Minister, whereas the attached documents may be found to have been prepared for that purpose: Re Hulls and Department of Treasury and Finance (No 2)[31].
•
Given the character of the Act as remedial legislation, Parliament would not have intended that virtually any document prepared by a department could be made exempt by simply placing it before a Cabinet or a minister, or by forming an intention when it was prepared to place it before Cabinet or a minister: Ryan[32].
Section 28(1)(d)
• Whether the documents were prepared before or after the meeting of Cabinet at which deliberations occurred is not determinative of the issue: Re Toomer[33]; Ryan[34].
• "Deliberation" means more than mere receipt of information in the Cabinet room, and connotes careful consideration with a view to the making of a decision: Re Birrell and Department of the Premier and Cabinet (No 3)[35].
• "Deliberation" also includes mere disclosure of a subject matter that would reveal what the Ministers in Cabinet "had on their minds": Re Mildenhall (No 1)[36]; including, for example, a document recording a Departmental Secretary's "key policy and operational variables": Re Asher and Department of State and Regional Development_[37]; Re Toomer and the Department of Agriculture, Fisheries, Forestry[38]_.
• A document or memorandum that disclosed the subject matter of deliberation in Cabinet and what was on the Cabinet agenda in a particular week is exempt under section 28(1)(d) of the Act: Re Wilson and Department of Premier and Cabinet[39].
• Letters expressing a desire to raise matters in Cabinet, if circulated and discussed at a Cabinet meeting, may reveal what would in the ordinary course be discussed by Cabinet: Commonwealth of Australia v Construction, Forestry, Mining and Energy Union[40]
• "Decision" means any conclusions as to the courses of action that Cabinet adopts whether they are conclusions as to final strategy on a matter or conclusions as to the manner in which a matter is to proceed": Toomer and Department of Agriculture, Fisheries and Forestry and Ors[41].
• A briefing paper would not disclose a deliberation or decision if it was in the nature of an explication to the Premier of matters referred to in a table that was submitted to a Cabinet sub- committee: Re Bachelor and Department of Premier and Cabinet[42].
• The whole of the evidence, including the documents, must be examined in order to determine the question whether they in fact disclosed deliberations or decisions of Cabinet: Re Toomer[43]; Ryan[44].
Section 28(3)
• This section withdraws the exemption, provided that the document contains "purely statistical, technical or scientific material", and, disclosure of the document would not involve the disclosure of any deliberation or decision of the Cabinet. Hence, if documents are exempt by reason of section 28(1)(d) of the Act, section 28(3) of the Act has no effective operation.
• A document which has any features other than statistical, technical or scientific material will not be removed from exemption by section 28(3): Re Mildenhall and Department of Premier and Cabinet[45].
Section 30(1)
• The opinion, advice or recommendation need not be by an officer of the agency whose deliberative processes are protected; it is sufficient that the opinion is prepared by some officer of some agency. Similarly, it is sufficient if consultation or deliberation occurs between officers in the course or for the purpose of the deliberative processes of an agency even if those officers are officers of some other agency: Re Brog and Department of the Premier and Cabinet[46]; Re Moloney and Department of Human Services[47].
• The term "deliberative processes" has a wide meaning, including, as was said in _Re Waterford and Department of Treasur_y (No 2)[48]:
any of the processes of deliberation or consideration involved in the functions of an agency...in short, its thinking processes - the processes of reflection, for example, upon the wisdom and experience of a proposal, a particular decision or a course of action.
• Draft documents forwarded to other officers in the department for their opinion and comment, have been held to form part of the "consultative process between officers of the Department": Re Moloney and Department of Human Services[49].
• In determining whether release of the documents would be contrary to the public interest, the Tribunal must weigh the competing interests -on the one hand the interest to which the Act gives rise in the public having access to documents, and on the other the public interest in protecting the deliberative processes of government, and the applicant must prove that, after such a balancing, disclosure would be contrary to the public interest: Ryder v Booth[50].
• However, a number of factors will be relevant to the question of the public interest, including consideration whether disclosure will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered: Re Howard and the Treasurer of the Commonwealth[51]; re Moloney[52].
• It has been held that draft internal working documents, or documents calculated to contribute to or lead to a final determination are generally inappropriate for publication so as not to impede or discourage the effective operation of deliberative processes. Each document must, however, be examined individually: Re Western Mining Corp and Department of Conservation Forests & Lands[53]; re Brog[54]; re City Parking Pty Ltd and City of Melbourne[55];
• Current relevance and sensitivity of the information to be disclosed are relevant considerations as to whether disclosure would be likely to expose the agency unreasonably to disadvantage: Re McCulloch and University of Melbourne[56]; Re Stewart and Department of Tourism, Sport and the Commonwealth Games[57].
• It is not sufficient to establish the likelihood of disadvantage; rather, the disadvantage must be found to be unreasonable: Re Byrne and Swan Hill Rural City Council[58].
• Reports containing recommendations for the consideration of a Steering Committee to make policy decisions have been held not to constitute instructions or guidance on procedures for officers of any agency: Re Kosky and Department of Human Services[59].
31 The documents disclose that they are drafts in the sense of being revisions of earlier documents. Document 1 is described by the respondent as "Draft Business Case for the Scoresby Integrated Transport Corridor Project (Relevant PSC equivalent sections from Volume One). It consists of a number of pages, each of which is marked "Cabinet-In-Confidence". The front page of Volume One states that the Draft Business Case was strictly confidential within the Department of Infrastructure which prepared it, and that each copy had a control number. Document 2, which is described as "Draft Business Case - Scoresby Integrated Transport Corridor Project (Relevant PSC equivalent sections from Volume Seven)", has similar indications of confidentiality on its front page. However, the remaining pages of document 2 are not marked "Cabinet-In-Confidence".
32 Peter James Sammut has been the Director, Engineering and Operations (Scoresby) of SEITA of two years. His evidence was that these documents are part of Volumes 1 and 7 of the Draft Business Case for the Scoresby Freeway project, and that documents 1 and 2 "contain analyses and data for the PSC".
33 In paragraph 3 of his statement, Mr Sammut described the purpose for which the Business Case was developed:
Prior to the establishment of SEITA, a project team within the Department of Infrastructure (DOI) was set up to work on the Scoresby Freeway project including the development of a Business Case for the purpose of submission to Cabinet, or at least the Expenditure Review Committee (ERC), in support of a request for funding the project.
34 At paragraph 4 of his statement, Mr Sammut said the Draft Business Case was prepared in June 2002, "for review by key officers in DOI and the Departments of Treasury and Finance and of Premier and Cabinet, and others".
35 At paragraph 6 of his statement, Mr Sammut said:
The Business Case was also prepared for the purpose of briefing the Minister for Transport in relation to issues of benefits, risks and costs to be considered by the ERC in the course of its consideration as to whether, and how, the proposals should proceed. I am able to say that Business Case information was presented to the Minister as part of an oral briefing prior to the meeting of the ERC on 21 August 2002. I am able to say this because I was involved in the briefing.
36 At paragraph 8 of his statement, Mr Sammut described the use made of the Business Case for the Scoresby Freeway:
On 21 August 2002, the ERC convened to consider both the Scoresby Freeway and the Eastern Freeway extension proposals. I was present throughout the ERC meeting. I recall the seven volumes of the final Business Case relating to the Scoresby Freeway proposal being in the meeting room so that they could be referred to by members of the ERC.
37 John Patrick Fitzgerald is the Director, Commercial and Infrastructure Risk Management Group, of the Department of Treasury and Finance. At paragraphs 12 and 14 of his statement, Mr Fitzgerald said:
In deciding whether to approve a project, the ERC is guided by the Business Case, the asset proposal template and any comments or recommendations by the Treasurer. Specific directions are regularly given to officials by either the Treasurer or the responsible Minister regarding information required by the ERC for its consideration in the course of its decision-making.
On 21 August 2002, the ERC met to consider both the Scoresby Freeway and Eastern Freeway Extension proposals. A written submission on behalf of the Minister for Transport was presented for the consideration of the meeting and that written submission was substantially based on the Business Case. I was present at the ERC meeting. I am able to say that the seven volumes of the final version of the Business Case for the Scoresby Freeway Project were also submitted to and available to members of ERC throughout the meeting. The Committee debated and discussed the merits of each proposal with references being made by the members of the ERC to what was revealed by the Business Case for the Scoresby Freeway Project.
Section 28(1)(b)
38 It was submitted by the respondent that the documents were part of a 7 volume draft Business Case which was submitted for the purpose of submission for consideration by the ERC. It was also submitted that because a written submission "substantially based on the Business Case" was presented for consideration by the ERC on 21 August 2002, the draft version of the Business Case is also to be treated as a document for the purpose of submission to and consideration by the ERC. In this regard, the respondent relied on the reasoning in Re Olexander[60], to the effect that the use of an executive summary did not make the summarised document (whether present in the room or not) any less a document for consideration by the committee for whom the summary was prepared.
39 It was submitted on behalf of the applicant that the Business Case, while prepared for the purpose of consideration by Cabinet, was not prepared... for the purpose of submission for consideration by Cabinet. Rather, the Business Case was prepared for the purpose of implementation of the Partnerships Victoria policy, namely to enable the preparation of a project brief which was then to be released to potential bidders, and to enable assessment of whether the bids lodged by tenderers provided better value for money for the State than constructing the project as a public sector project.
40 It was also submitted that the various documents published by the Government reveal that Cabinet does not approve the Business Case, but rather considers the submission from the Department of Treasury and Finance, which is based on that department's evaluation of the Business Case. It was submitted that the functions of the Business Case, as outlined in the published documents, are to obtain funding and to provide the foundation for the project brief. Viewed in this way, and consistent with the decision in Ryan[61], while the Business Case is the object of the advice submitted by the Department of Treasury and Finance, it is the advice, and not the Business Case, which would fall within section 28(1)(b) of the Act.
41 Mr Sammut's evidence was that one of the substantial purposes of the preparation of the Business Case was for submission to the ERC in support of a request for funding approval of the Scoresby Freeway project, and that the Business Case in its final form was in the meeting room on 21 August 2002 when the ERC met to consider the Scoresby Freeway and the Eastern Freeway extension proposals. Mr Fitzgerald's evidence was to the effect that the final version of the Business Case was available to members at the meeting, and that discussion of each proposal involved references to what was revealed by the Business Case for the Scoresby Freeway project.
42 On the authorities, particularly Ryan[62], the purpose of the preparation of the document must be for submission for consideration by the Cabinet. It will not be enough if the purpose was merely to place the document before Cabinet. Nor will it be sufficient if the document is created to assist in the preparation of a submission. At its highest, Mr Sammut's evidence does not, in my opinion, establish the purpose of preparation for submission for consideration by the Cabinet. Indeed, his evidence is consistent with the conclusion that the purpose of the preparation of the Business Case was for it to be physically put before Cabinet and relied upon by the Minister for Transport in a submission seeking Cabinet approval for a request for funding for the project.
43 The second basis on which exemption under section 28(1)(b) was claimed is that documents 1 and 2 are drafts of the final version of the Business Case, and that a written submission "substantially based on the Business Case" was presented for the consideration of the ERC on 21 August 2002. This submission relied on Mr Sammut's evidence concerning the purpose of the preparation of the Business Case, combined, this time, with Mr Fitzgerald's evidence concerning the use of the written submission made at the meeting of the ERC. When combined with the reasoning in Re Olexander[63], it was submitted that documents 1 and 2 are to be treated as documents prepared for the purpose of submission to and consideration by the ERC.
44 The difficulty with this submission is that Mr Sammut gave direct evidence as to the purpose of the preparation of documents 1 and 2, which was "for review by key officers in DOI and the Departments of Treasury and Finance and of Premier and Cabinet, and others". This is clearly not sufficient to meet the requirements of section 28(1)(b). More importantly, I have already found that Mr Sammut's evidence as to the purpose of the preparation of the Business Case does not establish that a substantial purpose was that of 'submission for consideration by the Cabinet'. Therefore, the actual use made of the final version of the Business Case, is not relevant, except as a vehicle for founding a backward-looking, impermissible 'deeming' of the substantial purpose of the draft documents, which purpose is the subject of clear, and contrary evidence (from Mr Sammut).
45 In any event, I am also not satisfied that the written submission stands in relation to the final version of the Business Case as an executive summary stands in relation to the summarised document. It was not described as a summary by Mr Fitzgerald, and I think that Mr Sammut's evidence to the effect that the ERC would consider the submission of the Minister of the Department of Treasury and Finance in favour of a request for funding of the proposal also detracts from such a conclusion.
46 For these reasons, the exemption under section 28(1)(b) of the Act is not made out.
47 Mr Sammut's evidence was that one of the purposes for which the Business Case was prepared was for the purpose of briefing the Minister of Transport in relation to the risks and benefits of the project to be considered by the ERC. I am not satisfied on this evidence that a substantial purpose of the preparation of the Business Case was for the purpose of briefing the Minister in relation to the matters to be considered by the Cabinet.
48 Having examined documents 1 and 2, I am not satisfied that they have the quality of briefing material referred to in Ryan[64]. It is therefore unnecessary, on the authorities, to determine or consider the actual use to which such material was put.
49 Accordingly, the exemption under section 28(1)(ba) of the Act is not made out.
50 Exemption under this section is claimed on the basis that disclosure of documents 1 and 2 would involve the disclosure of a deliberation of Cabinet in terms of the information and opinion which was before the ERC, referred to and discussed by the ERC in the course of its meeting on 21 August 2002 when it considered the Scoresby Freeway project. In this regard, the respondent relied on the reasoning in Re Toomer[65], and Re Mildenhall (No 2)[66].
51 The applicant's written and oral submissions did not specifically address this exemption. However, the submissions relied on the concession by Mr Fitzgerald in re-examination that the project brief for the Mitcham Frankston Freeway project included or drew significantly upon the Scoresby Freeway Business Case, and that the project brief was provided to the bidders. It was conceded, however, that Mr Matthews, Director - Commercial and Legal of SEITA, said in his oral evidence before the Tribunal that the project brief for the Mitcham Frankston Freeway project did not include the PSC (raw or final); and that neither the raw PSC nor final PSC was provided to the two prospective tenderers.
52 I am not satisfied on the material before me that this exemption is made out, for a number of reasons. First, there was no evidence before me as to the relationship between the information contained in documents 1 and 2 and that contained in the final version of the Business Case upon which the written submission to the ERC on behalf of the Minister for Transport "was substantially based". Second, it appears on the evidence that the subject of the deliberation at the ERC meeting was the written submission on behalf of the Minister for Transport, or the "various proposals" contained therein, not the final version of the Business Case which was physically present in the room, and not documents 1 and 2.
53 In the light of the conclusion that the exemption under section 28(1) of the Act is not made out, it is not necessary to consider section 28(3) of the Act.
54 I have already referred to the evidence of Mr Sammut concerning the purpose of preparation of the draft Business Case. In his oral evidence at the hearing, Mr Sammut said that a Business Case was prepared for each of the Scoresby Freeway and Eastern Freeway Extension projects, and that PSCs were prepared for each project. However, no project briefs were issued. In September 2002, when the decision was made to combine the projects into the Mitcham Frankston Freeway project, a PSC was prepared for the combined project, but Mr Sammut said that the PSC was not released to bidders in the project brief for the Mitcham Frankston Freeway project. This was confirmed by Mr Matthews, who said that bidders were informed that the PSC would not be released.
55 The contents of the documents and the Partnerships Victoria Practitioners' Guide (Exhibit B, page 23) establish that a Business Case is prepared in the course of, or for the purpose of, the deliberative processes involved in the functions of the government, namely, for evaluation by the Department of Treasury and Finance before formal Cabinet consideration of the project proposal which determines government endorsement and funding approval.
56 It was submitted on behalf of the applicant that there is a public interest in disclosure of these documents, along with document 3. In particular, it was submitted, there was no harm in releasing documents 1 and 2 because the PSC material contained therein relate to a project that did not proceed (the Scoresby Freeway Project), and because the content of the business case is not intended to be kept confidential but to be made known to the bidders.
57 It was submitted on behalf of the respondent that there was evidence that the government had decided not to disclose the PSC in respect of the Mitcham Frankston Freeway project to bidders, and that disclosure of the documents would be contrary to the public interest for the same reasons that disclosure of document 3 would be contrary to the public interest, namely that a decision was taken not to disclose the PSC in respect of the Mitcham Frankston Freeway project to bidders, and that disclosure would disadvantage SEITA in carrying out its statutory function of administering and managing the contract with ConnectEast.
58 Neither party submitted that section 30(3) applies to these documents.
59 I am satisfied that documents 1 and 2 fall within section 30(1)(a) of the Act. Further, I consider that disclosure of documents 1 and 2 would be contrary to the public interest, for a number of reasons.
60 First, the Scoresby Freeway Project did not proceed. Although there was evidence from Mr Fitzgerald in re-examination that the information in documents 1 and 2 was incorporated into the project brief for the Mitcham Frankston Freeway project, it is also clear on the evidence that the Mitcham Frankston Freeway project represents the consolidation of the two earlier proposals - the Scoresby Freeway Project and the Eastern Freeway Extension Proposal. And it is not clear on the evidence of Mr Matthews and Mr Fitzgerald whether, in fact, a Business Case (or draft) was prepared for each of these 2 projects, or indeed for the Mitcham Frankston Freeway project. In this context, I consider that disclosure of documents 1 and 2 would be contrary to the public interest in that it may mislead the public with "PSC-related" information, data or analyses of uncertain relationship to the Mitcham Frankston Freeway project now in place.
61 During the hearing, there was considerable evidence concerning the Victorian Government's policy on disclosure of the raw as opposed to final PSC, and the appropriateness or otherwise of disclosure of the raw PSC in this case. Much of the discussion proceeded on the assumption that documents 1 and 2 bear a relationship to, or indeed constitute, the raw PSC of the Mitcham Frankston Freeway project. However, I am not satisfied on the evidence that this is so. On the contrary, the respondent's witnesses acknowledged that no raw PSC for the Mitcham Frankston Freeway project was provided to the private bidders at the time the project brief was issued by the government. They also gave evidence to the effect that no raw PSC was separately prepared from the final PSC, in relation to the Mitcham Frankston Freeway project.
62 Finally, I note that the existence of a final PSC for the Mitcham Frankston Freeway project is not in doubt, and, if the exemptions claimed in respect of document 3 are not made out, the disclosure of such information would render the disclosure of documents 1 and 2 redundant, and potentially all the more misleading.
63 Document 3 is the final PSC for the Mitcham Frankston Freeway project. According to Mr Matthews, the purpose of the preparation of the PSC was for submission by the Minister of Transport to Cabinet, or the ERC, for its consideration of that project. Mr Matthews also said that PWC were engaged by SEITA to assist in the preparation of the PSC and to prepare the final report for submission to Cabinet, and that each page of the report was marked by PWC as "Cabinet in Confidence".
64 Mr Matthews also said that he and others in SEITA assisted the Minister for Transport and DOI officers in preparing a submission by the Minister on the Mitcham Frankston Freeway project "for a meeting of the ERC" which was held on 25 February 2004, and that the submission "drew extensively from the PSC report". This evidence was not challenged in cross-examination.
65 Mr Fitzgerald's evidence was that:
The substantial purpose of the preparation of a PSC is, according to page 70 of the 'Partnerships Victoria Public Sector Comparator - Technical Note', to provide documentation for the purpose of making and supporting a submission to the Cabinet or the ERC to enable either Cabinet or the ERC to make a decision on the relevant project proposal.
66 Mr Fitzgerald also said that he attended the meeting of the ERC on 25 February 2004 and that the ERC "considered a submission focussed on the PSC". In his oral evidence, Mr Fitzgerald described "several advantages" of the PSC, which were to:
• assist the State in deciding whether private provision of the project was value for money;
• satisfy the Auditor-General that value for money had been achieved in private delivery of the project;
• provide negotiators for the government with information to assist in negotiating the final outcome and to help maintain pressure on the competing parties.
67 It was submitted on behalf of the respondent that paragraph 1 of document 4 (for which exemption is claimed) corroborates Mr Fitzgerald's evidence and is evidence that document 3 was required for the purpose of submission to Cabinet. Further, it was submitted that paragraph 4 of document 4 (which was released) explains the delay in submitting the PSC to the ERC. It was also submitted that paragraphs 2 and 3 of document 3 explained how further work came to be required as a result of a decision of the State. Further, it was submitted, the purpose referred to by Mr Fitzgerald was not negated by a subsequent decision, prior to completion of the final PSC, that the final PSC would not be submitted to Cabinet (because of a decision that the Mitcham Frankston Freeway project would be undertaken by a private entity).
68 Finally, it was submitted on behalf of the respondent that the evidence establishes that a written submission was made to the ERC which drew extensively on, or was focused on the PSC. The respondent relied on the reasoning of Judge Strong in Re Olexander[67] and submitted that the final PSC report still remained a document for consideration by the Committee for whom the submission was prepared.
69 It was submitted on behalf of the applicant that the primary or substantial purpose of the PSC was not for submission to Cabinet for approval, but, according to Exhibit G, and other Partnerships Victoria documents, to provide a "quantitative benchmark" against which to judge value for money of Partnerships Victoria bids. A number of roles of the PSC are identified in Exhibit D, and these include assisting bidders, assisting the Department of Treasury and Finance to evaluate a project, and enabling the government to assess rival bids. According to Mr Matthews, one of the reasons for which the PSC was finalised in this case was to satisfy the Auditor-General.
70 It is clear on the evidence that the PSC was an essential component of the process by which a Partnerships Victoria project came to be proposed and approved. It is also clear that one stage of the approval process involves consideration by the ERC of the project.
71 In Ryan[68], Justice Morris commented on the "carefully crafted, and no doubt settled, statements" made by a witness in his evidence in chief. In my view, Mr Fitzgerald's evidence goes no further than establishing that the preparation of a PSC was a necessary step in the process of getting a Partnerships Victoria or other project worth more than $5 million evaluated and approved by the government.
72 On the evidence, however, I am not satisfied that a substantial purpose of the preparation of the final PSC in relation to the Mitcham Frankston Freeway project was for "the purpose of submission for the consideration of Cabinet". It was not the final PSC which was to be submitted for the consideration of Cabinet, but rather the project itself, via, perhaps, the submission of the Minister for Transport in relation to the Mitcham Frankston Freeway project. Accordingly, the exemption claimed under section 28(1)(b) of the Act is not made out.
73 Exemption for document 3 under section 28(1)(ba) of the Act is claimed on the basis of Mr Matthews' evidence that one of the purposes of the preparation of the PSC was that of :
...briefing the Minister for Transport in relation to issues of benefits, risks and costs to be considered by the ERC in the course of considering whether the proposal should proceed.
74 Mr Matthews said the PSC was used as part of an oral briefing to the Minister prior to the meeting of the ERC on 25 February 2004.
75 The respondent submitted that Mr Matthews' evidence was uncontradicted and should be accepted. The applicant submitted that the substantial purpose of the PSC was as outlined in paragraph 74, and that the PSC was not considered by Cabinet which determined the matter without regard to those documents.
76 Again, whilst it is clear that the preparation of the PSC had as one of its functions that of providing the information against which proposals could be evaluated by the government, or used by ministers in the preparation of their submissions to the ERC, I am not satisfied on the evidence that a substantial purpose of the preparation of the PSC was to brief the Minister for Transport on the matters to be considered by the ERC when considering the project.
77 Exemption for document 3 is claimed under section 28(1)(d) of the Act on the basis that disclosure of the PSC would involve the disclosure of a deliberation of Cabinet. The respondent relied in this regard on Mr Matthews' evidence that on 25 February 2004, the ERC "considered a submission focused on the PSC", and that in October 2004, the government accepted the proposal of the ConnectEast consortium to construct and operate the Mitcham Frankston Freeway project.
78 The applicant relied on the evidence in cross-examination of Mr Matthews and Mr Fitzgerald to the effect that the decision to let the project to a private tenderer had been made by the government at least a year before February 2004, and submitted that the release of the PSC does not reveal a decision of Cabinet. Nor, was it submitted, did the evidence establish that the PSC was approved by Cabinet. In addition, it was submitted, in its decision of 7 October 2004, the respondent's FOI officer had not claimed this exemption for document 3.
79 Again, I am not satisfied on the evidence before me that the disclosure of the PSC would disclose any deliberation of the Cabinet on 25 February 2004. Accordingly, the exemption under section 28(1)(d) of the Act is not made out in respect of document 3.
80 As the exemption claimed under section 28(1) of the Act has not been made out, it is not necessary for me to consider the operation of section 28(3) of the Act.
81 The respondent also claims exemption for document 3 under section 30(1) on the basis that the PSC was prepared by an officer for the deliberative processes of government and because disclosure of the document would be contrary to the public interest. In this regard, the respondent relied on the evidence of Mr Matthews that a decision was taken not to disclose the PSC in respect of the Mitcham Frankston Freeway project to bidders, that disclosure in this case was not necessary because the bidders were provided with the reference design and engineering drawings, and that disclosure would place SEITA at a disadvantage in carrying out its statutory function of administering and managing the contract with ConnectEast by giving ConnectEast information which might encourage requests or disputation regarding variations. The respondent also relied on Mr Fitzgerald's evidence that release of the PSC would be contrary to the public interest in that it would disadvantage the Victorian Government. The disadvantage lay in enabling "experienced industry operators to work out exactly how the PSC is constructed", which in turn, would allow future bidders to predict future PSCs.
82 The respondent also relied on Exhibit H (a Commonwealth Government document), which contains a statement to the effect that the disclosed PSC information should only include the PSC's raw cost and competitive neutrality factor, and not include the value of transferable and retained risks.
83 In addition, the respondent relied on the decision of Re Dance and Hume City Council[69] for the submission that since the contract with ConnectEast will operate for more than 20 years, it would be contrary to the public interest to disclose information regarding risks, and so the document should be found exempt under section 30(1).
84 The applicant submitted that disclosure of the PSC would not be contrary to the public interest, and that disclosure of the raw PSC in particular, would simply be consistent with government policy as outlined in the various exhibits. In support of disclosure of the PSC, the applicant's submissions referred to a number of matters including:
i
the size of the Mitcham Frankston Freeway project;
ii
the controversy surrounding it that has featured in the last Federal and State election campaigns;
iii
the public interest in allowing the public to analyse the process by which a major infrastructure project is let, and to assess the value to the community of that process;
iv
the documentation published by the Victorian government provides extensive detail as to how the PSC is to be constructed, and has described the final PSC for one-off projects as "generally meaningless" (Exhibit E, page 5);
v
the PSC preparation process is itself very expensive, and there is a public interest in the question as to whether PSCs are of any value;
vi
the Fitzgerald Report assessed the efficacy of the PSC process, and the author of the report was given access to the PSCs for all the projects examined therein;
vii
there is a strong policy disposition towards disclosure of the PSC, particularly the raw PSC, which is confirmed by the Fitzgerald Report;
viii
the public interest concerns raised by the witnesses are misconceived and unfounded: future projects are unlikely to be affected by this one, and neither are contractual disputes likely to be influenced to any extent by the PSC;
ix
the public interest in favour of disclosure of the raw PSC includes all the above and is even stronger than the arguments relating to the final PSC, because Mr Fitzgerald agreed that the only part of the PSC whose release was of concern to the government is that of the "risk-adjusted" PSC, that is, the final, as opposed to raw PSC. He agreed that the raw PSC is typically provided to prospective tenderers, who would normally also be told the prevailing "discount rate". Mr Sammut agreed that the raw PSC is usually issued to bidders;
x
concerns relating to any genuinely commercially sensitive material within the PSC can be dealt with by an order under section 25 of the Act.
85 The documentation published by the Victorian Government (Exhibits A-G, Exhibit 2) reveals a policy that favours disclosure of the raw PSC. This is consistent with Commonwealth documentation (Exhibit H). In those documents, references to disclosure state that release of PSCs should not include release of the value of transferable and retained risks.
86 In his oral evidence, Mr Fitzgerald agreed that the documents revealed the nature of the PSC, the methodology by which it was compiled, as well as the methodology by which government agencies are to determine the discount rates used to calculate the PSC. He also agreed that the documents included guidelines to the effect that the PSC must be completed before the release of the project brief. He agreed that general government policy is that disclosure of the raw PSC should occur, and that such a policy was expressed in the Overview[70] document and the PSC Technical Note[71]. He agreed that disclosure carries the potential advantages referred in the PSC Technical Note[72]. Mr Fitzgerald agreed that all contractors for the Mitcham Frankston Freeway project would have access to the above documents published by the Victorian Government, and would be likely to have looked at them and been guided by them. He said the raw PSC was a realistic estimate of the cost of the project if undertaken by the Government alone but did not include the component of estimated risks and contingencies which was in the final PSC. He also agreed that the concerns raised in his statement at paragraphs 20 and 21 related only to disclosure of the component of estimated risks and contingencies which was in the final PSC.
87 Mr Matthews said the guidance material published by the government sets "no real framework" and that the primary source of material for a bidder would be project specific information. He said the PSC was not finished before the project brief went out in October 2003 for the Mitcham Frankston Freeway project, but was finalised in February 2004. The two bidders provided initial material in March 2004 and substantial bids in April 2004. He said that around that time, they were told the PSC would not be released. He said that from his earliest involvement in the project, it was his view and that of those around him that the PSC would not be released, and this was his recommendation to the transport minister and his adviser. He said he spoke to the Minister about this in 2003, before the issue of the project brief. He said his attitude to non-disclosure related to both the raw PSC and the final PSC.
88 He agreed that the policy of disclosure of raw PSC in other projects related to the benefit of enabling bidders to scale their response. He said that the bidders in the Mitcham Frankston Freeway project had very detailed engineering drawings about what was required. He agreed that the raw PSC was a "financial manifestation" of the material in those drawings. He said his advice to the Minister was not to release the raw PSC because the bidders did not need to know it, and also because the government's negotiating position in the competition process were best served by not disclosing it. He said that release of the raw PSC would disclose the government's assessment of the price that it might pay for construction of the facility. He agreed that release of the raw PSC would have provided the market with fuller information. He said the bidders had what they needed to determine their own costs, and were not disadvantaged by not receiving the raw PSC. He said that knowing the PSC could lead bidders to raise their price. He said that in his view, in this case, the PSC should not be open and transparent. He said that in this case the government did compare the two bids against the PSC, even though the PSC was finalised after the project brief was released.
89 The applicant did not suggest that document 3 does not fall within the first limb of section 30(1). I find that it does, but I also conclude, having considered all the evidence before me, that I am not satisfied that disclosure of the final PSC would be contrary to the public interest, for a number of reasons.
90 First, the contract in respect of the project was awarded in October 2004. It is therefore no longer relevant to consider any impact on the bidders' state of knowledge.
91 Second, I consider the evidence concerning the adverse impact of disclosure of the final PSC on the government's negotiating capacity with ConnectEast in its contractual relationship to be purely speculative, and I do not accept it. There was no evidence before me to suggest that this particular contractual arrangement is not governed by the usual principles governing such contracts, nor any evidence of adverse financial implications for the Government of disclosure of the Final PSC.
92 Third, to the extent that the Mitcham Frankston Freeway project is a one-off project both in terms of its cost and in terms of the highly theoretical nature of the PSC constructed for it, the disclosure of the final PSC would be of little consequence or relevance in future projects to be considered by the government, or potential bidders.
93 Fourth, the PSC process itself is very expensive, and there is significant public interest in the question as to whether such a process is of value, particularly in the light of the findings of Peter Fitzgerald made in his "Review of Partnerships Victoria Provided Infrastructure- Final Report to the Treasurer" which was published in January 2004 ("the Fitzgerald Report"). At least two of the projects reviewed in the report involved the construction of PSC "where the State had never undertaken such a project and indicated that it wouldn't in those cases" (p 30). One of the conclusions of the review is that the PSC process may not be appropriate or relevant in the case of unique one-off projects, where public provision has not been done in the past and is unlikely to be done in the future. In such cases, the author advocates the analytic comparison being made against a reference case, or a range of benchmarks, rather than against a highly theoretical (and less credible) PSC (page 31). Viewed against these conclusions, public debate as to the usefulness of the final PSC in projects such as the Mitcham Frankston Freeway project may militate in favour of disclosure of the final PSC.
94 The Fitzgerald Report reviewed all available documents relating to the eight Partnerships Victoria projects for which contracts have been signed, including their PSCs, and specifically reported that, expressed as a percentage of the capital expenditure involved in the projects, "the risk adjustments averaged around 17 per cent" (at page 25). Accordingly, the range of risk-adjustment figures in PSCs the subject of contracts signed as at January 2004 is in the public domain. When combined with the amount of information published by the Government concerning the construction of the PSC, it is difficult to resist the conclusion that much of the information enabling determination of the risk- adjusted PSC in this case is already in the public domain.
95 Fifth, it is always preferable for public debate on an issue to be informed by the facts, and, to the extent that the Mitcham Frankston Freeway project is a one-off or unique project, it is preferable for any debate or consideration of the project to be based on data specifically prepared for it, namely the final PSC, rather than on less reliable data, such as documents 1 and 2. In those circumstances, the public interest may lie squarely in favour of disclosure of document 3.
96 Fifth, although the government's policy (both State and Commonwealth) is generally not to disclose the final PSC, such a policy is not determinative in assessing the public interest in this case. The existence of the policy must be weighed against the public's interest in disclosure in order to allow informed debate concerning the usefulness of the PSC, and concerning an evaluation of the government's assertion (implied by its decision to choose private delivery of the project over a public/private partnership for that purpose) that the chosen vehicle of delivery represents value for money to the community.
97 Finally, I note that during cross-examination, Mr Fitzgerald agreed that since the government had decided in May 2003, well before February 2004 (when Cabinet approved the final PSC), that the project would proceed as a privately funded project, the content of the PSC played no part in that decision. This further undercuts the weight to be attached to concern about any impact of disclosure of the final PSC on the government's negotiating position vis-a- vis ConnectEast during the life of the current project.
98 For these reasons, I consider that the exemption under section 30(1) of the Act is not made out in respect of document 3.
99 Exemption is also claimed for document 3 under section 34(4)(a)(ii) of the Act. It is clear from section 19 of the SEITA Act 2003 that SEITA is engaged in commerce. It is also clear that document 3 contains information of a business, commercial or financial nature.
100 Mr Matthews gave evidence in his statement that disclosure of the PSC would place SEITA at a disadvantage in administering and managing the contract with ConnectEast, and Mr Fitzgerald said in his statement that disclosure of the PSC would enable "experienced industry operators to work out exactly how the PSC is constructed", which, he said, would disadvantage the Victorian Government in its negotiations with contractors under the current contract with ConnectEast, and in future negotiations with bidders on other projects. Disclosure might also mislead the public and potential participants in further projects, he said, because the PSC is only one element of the value for money consideration.
101 I have already indicated why I do not accept the concerns raised by the respondent's witnesses as establishing the likelihood or nature of the disadvantages canvassed by them. The decision to let a private entity construct and operate the Mitcham Frankston Freeway project had been taken well before the finalisation of the PSC, and the contractual negotiations for that project were concluded in October 2004 when ConnectEast was selected by the government to construct and operate the project. In this context, the nature of the figures in the PSC can hardly be said to be current, or relevant, to the contract entered into. The contract itself has been concluded for some time now.
102 The concerns raised by the Fitzgerald Report concerning the value of the PSC as one of the indicia of value for money in a proposed project of the one-off kind, as well as the publication in that report of the range of risk-adjusted PSC's in previous projects, combined with the actual use (or non-use) of the final PSC by the government in its decision whether to invite private construction and operation of the project, suggests that release of the final PSC in this case may inform, rather than mislead the public, and thereby inform any debate concerning the usefulness of the PSC process for projects of this kind.
103 In any event, I consider that even if I accept that some disadvantage might flow to the government and to SEITA from the disclosure of the final PSC, I am not satisfied on the evidence before me that disclosure of the final PSC would be likely to expose the agency unreasonably to disadvantage, as required by the sub-section.
104 For this reason, the exemption under section 34(4)(a)(ii) of the Act is not made out in relation to document 3.
Documents 1, 2, 3
105 Exemption is also claimed under section 36(1) of the Act. Exemption is claimed under this section in respect of documents 1, 2 and 3, on the basis that disclosure of these documents would disclose instruction provided to agencies for the use or guidance of officers on the financial and commercial criteria to be applied in the assessment of a project under the Partnerships Victoria policy.
106 Having examined each of the documents, I do not consider that disclosure of documents 1, 2 or 3 would disclose instructions provided for the use or guidance of, officers of an agency on the procedures to be followed, or the criteria to be applied... Rather, each of the documents constitutes a report whose subject matter is a proposed venture: the construction and operation of, in the case of documents 1 and 2, the Scoresby Freeway Project, and in relation to document 3, the Mitcham Frankston Freeway project. I therefore consider that the exemption under this section has not been made out in respect of documents 1, 2 and 3.
107 Exemption under section 28(1)(d) of the Act is claimed on the basis that disclosure of document 4 (first paragraph) would involve disclosure of a decision of Cabinet.
108 The uncontradicted evidence of Mr Fitzgerald was that the first paragraph of document 4 discloses a decision taken by the ERC, and that the third paragraph of the letter "does not disclose information regarding the development of the PSC.
109 Having examined document 4, I agree that the third paragraph does not contain information relevant to the request. I find that the first paragraph is exempt on the basis that it discloses a decision taken by the ERC. It is therefore not necessary for me to consider the exemption claimed under section 30(1) of the Act.
110 Exemption under section 28(1)(d) of the Act is claimed on the basis that disclosure of the second and fifth paragraphs of the document would involve the disclosure of a deliberation of Cabinet.
111 Mr Fitzgerald' evidence, which was uncontradicted, was that the second paragraph discloses a decision taken by the ERC; the third and fourth paragraphs of the document "do not contain information regarding the development of the PSC or any discussion of the results of the tender"; and that the fifth (final) paragraph "contains Ministerial instructions regarding the preparation of a further submission to the ERC".
112 It was submitted by the respondent that disclosure of consultation between the Minister for Transport and the Treasurer on the subject of what was to be included in a submission to the ERC, would involve disclosure of the subject on which the ERC was to deliberate.
113 Having examined document 5, I agree that the third and fourth paragraphs do not contain information relevant to the request. I accept the evidence of Mr Fitzgerald and I find that the second paragraph discloses a decision taken by the ERC, and that disclosure of the fifth paragraph would involve disclosure of the subject on which the ERC was to deliberate. Accordingly, the exemption under section 28(1)(d) is made out for the second and fifth paragraphs of document 5. It is therefore not necessary for me to consider the exemption claimed under section 30(1) of the Act.
114 I have found that the exemptions under section 28(1)(d) of the Act are made out in respect of documents 4 and 5, and that the exemption under section 30(1) of the Act is made out in respect of documents 1 and 2. I have found that none of the exemptions is made out in respect of document 3
115 Accordingly, the decision under review is affirmed in respect of documents 1, 2, 4 and 5 of the documents in dispute. However the decision under review in respect of disputed document 3 is set aside and there is to be substituted for it a decision releasing document 3 to the applicant. However, I will also order that the operation of the decision releasing document 3 be stayed for 28 days, in order to avoid any possible appeal being rendered nugatory. I reserve the question of costs.
[1] Partnerships Victoria - Practitioners' Guide dated June 2001; - Partnerships Victoria - Risk Allocation and Contractual Issues dated June 2001; - Partnerships Victoria - Overview dated June 2001; Partnerships Victoria - Public Sector Comparator Technical Note dated June 2001;- Partnerships Victoria - Public Sector Comparator Supplementary Technical Note dated July 2003;- Partnerships Victoria - Use of Discount Rates in the Partnerships Victoria Process dated July 2003; Review of Partnerships Victoria Provided Infrastructure-, Final Report to the Treasurer dated January 2004, by Peter Fitzgerald ("the Fitzgerald Report"); and Public Private Partnerships - Guideline: Commonwealth Policy Principles for the Use of Private Financing dated May 2005, Department of Finance and Administration.
[3] [1985] VicRp 86; [1985] VR 869 at 877
[5] [2004] VCAT 2346, at p.8
[6] (1987) 2 VAR 32 at 37-8
[7] [2004] VCAT 2346 (30 November 2004)
[10] [2004] VCAT 2346 (30 November 2004), at p.8
[11] Unreported, VCAT, Judge Strong VP, 23 May 2002
[12] The Law Book Company, 1984, at p.119
[13] The Law Book Company, 1984, at p.119
[14] Unreported, VCAT, Judge Strong VP, 23 May 2002
[15] [2004] VCAT 2346 (30 November 2004), at p.9
[16] [2001] VCAT 663; (2001) 16 VAR 455 at 463
[17] Unreported, VCAT, Judge Strong VP, 23 May 2002
[18] [2004] VCAT 2346 (30 November 2004), at p.9
[19] [2004] VCAT 2346 (30 November 2004), at p.10
[21] [2004] VCAT 2346 (30 November 2004), at p.10
[22] (1995) 8 VAR 284 at 295
[24] [2004] VCAT 2346 (30 November 2004), at p.10
[25] [2004] VCAT 2346 (30 November 2004), at para 41
[26] (unreported, AAT of Vic, Macnamara DP, 23 August 1996)
[27] (unreported, AAT of Vic, Fagan P and Coghlan M, 29 January 1998)
[29] (unreported, AAT of Vic, Macnamara DP, 4 April 1996)
[30] (unreported, AAT of Vic, Macnamara DP, 23 August 1996)
[32] [2004] VCAT 2346 (30 November 2004), at p.10
[33] [2003] AATA 1301, at para 96
[34] [2004] VCAT 2346 (30 November 2004), at p.10
[35] (1987) 2 VAR 32 at 34
[36] (1995) 8 VAR 284 at 295
[38] [2003] AATA 1301 at 87-88
[42] (unreported, AAT of Vic, Fagan P and Coghlan M, 29 January 1998)
[43] [2003] AATA 1301, at para 96
[44] [2004] VCAT 2346 (30 November 2004), at p.10
[45] (1995) 8 VAR 284 at 295
[48] [1984] AATA 67; (1984) 5 ALD 588 at 606
[51] [1985] AATA 100; (1985) 7 ALD 626 at 635
[56] (unreported, VCAT, Megay SM, 13 March 2001)
[60] Unreported, VCAT, Judge Strong VP, 23 May 2002
[61] [2004] VCAT 2346 (30 November 2004)
[62] [2004] VCAT 2346 (30 November 2004)
[63] Unreported, VCAT, Judge Strong VP, 23 May 2002
[64] [2004] VCAT 2346 (30 November 2004)
[67] Unreported, VCAT, Judge Strong VP, 23 May 2002
[68] [2004] VCAT 2346 (30 November 2004), at p.6
[70] Partnerships Victoria - Overview dated June 2001 at page 21
[71] Public Sector Comparator Technical Note dated June 2001at page 68
[72] Public Sector Comparator Technical Note dated June 2001 at page 68
Dalla Riva
Department of Treasury and Finance
(1986) 64 ALR 206