Davis v Department of Health (Review and Regulation) [2024] VCAT 707

1. Under section 51A(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') the application for review is the respondent's decision of 24 February 2022.

1. Under section 51(2)(c) of the VCAT Act the decision to exempt Document 34 is set aside and substituted for a decision that the document is to be released.

1. Under section 51(2)(a) of the VCAT Act, the decision under review for Documents 7, 11, 13, 21, 22, 23, 30, 31, 33, 37, 44, 46, 53, 61 is affirmed.

1. This case is about a Freedom of Information application by the Honourable Mr David Davis MLC about the Covid -19 curfew imposed on 2 August 2020. The scope of his request has been refined and is now a dispute with the Department of Health ('Department') about 15 documents. The background is as follows.
2. Following Mr Davis' access request on 10 September 2020, by letter dated 4 December 2020, and confirmed on 28 January 2021, the Department denied the request under section 25A(1)(a) of the Freedom of Information Act 1982 (Vic) ('FOI Act'), asserting that the 'work involved in processing the request...would substantially and unreasonably divert the resources of the agency from its other operations.'
3. On 6 April 2021, Mr Davis sought a review of this decision at the Tribunal and on 16 July 2021 by consent the Tribunal ordered under section 51A(1) of the Victorian Civil and Administrative Act 1998 (Vic) ('VCAT Act') that the Department reconsider the decision. Mr Davis had amended his request as follows:

Documents relied on by the authorised officer (as authorised to exercise emergency powers by the Chief Health Officer under s 199(2)(a) of the Public Health and Wellbeing Act 2008) on 2 August 2020 in making the Stay at Home Directions (Restricted Areas) No 7 that came into effect on 2 August 2020, excluding all information relating to the personal affairs of any person as defined in s 33(9) of the Freedom of Information Act 1982 as it relates to junior staff.[1]

1. On 24 February 2022 the Department decided the revised request (the Decision) and located 67 documents (596 pages) and granted access in part to those documents. The Department withheld various documents relying on three exemptions, legal professional privilege, internal working documents and cabinet in confidence.
2. The Department and Mr Davis then narrowed the documents in dispute and the withheld 15 documents are the subject of this dispute.[2] The Department's decision dated 24 February 2022 is the decision under review.[3]

1. The FOI Act provides under section 3(1) that the object of the Act is to 'extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes...'
2. Section 3(2) states it is the intention of Parliament that the provisions of the Act be interpreted to further the object set out in (1), and that discretions be exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Section 13 provides that documents in the possession of the government and government agencies are to be disclosed unless they are exempt.
4. Section 16(1) and (2) provide that Ministers and agencies shall administer the FOI Act with a view to maximising the amount of government information promptly and inexpensively available to the public.
5. These sections impose a presumption that any person has the right to obtain documents from government subject only to the exceptions and exemptions set out in the Act.

1. Section 55(2) of the Act provides the agency or Minister to which the request was made normally bears the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
2. In Re Moloney and Department of Human Services[4] Davey J stated: 'the agency claiming exemption for a document or class of documents under s 30(1) of the FOI Act must carry the onus of proof by satisfying the Tribunal that the release would be contrary to the public interest...'.[5]

1. The 15 documents in dispute (identified by the numbering when the Decision was made) and as described in the Schedule[6] are as follows:

Document 7 - Internal email re timing of announcements, 2 August 2020 (partially exempt)

Document 11 - Single Source of Truth - Attachment to document 10

Document 13 - Single Source of Truth - Attachment to document 12 (partially exempt)

Document 21 - Draft Single Source of Truth document - Attachment to document 20 (partially exempt)

• . Document 22 - Internal email chain, 2 August 2020 (partially exempt)

Document 23 - Draft direction - Attachment to document 22

Document 30 - Internal email re Curfew, 2 August 2020

Document 33 - Draft Single Source of Truth document - Attached to document 32 (partially exempt)

Document 34 - Email chain between Public Health Commander and Chief Health Officer, 2 August 2020

Document 44 - Internal email chain re key messages and CHO updated, 2 August 2020 (partially exempt)

Document 46 - Internal email chain re 3rd set of documents, 2 August 2020 (partially exempt)

Document 61 - Attachment D - COVID Additional Directions, 2 August 2020 (partially exempt - one line in dispute)

Categories of documents and grounds of exemption

1. The fifteen documents have been divided by the Department into four categories and exemption is claimed on the following grounds:
   • The Single Source of Truth ('SSOT') documents are claimed to be exempt under section 32, legal professional privilege or client legal privilege, and under section 30 as internal working documents (documents 11, 13, 21 and 33);
   • The draft public health directions, drafts of Directions 6 and 7, are claimed to be exempt under section 32, legal professional privilege, and under section 30 as internal working documents (documents 23, 31, 37 and 53);
   • Emails in relation to draft directions are claimed to be exempt under section 30 as internal working documents, and some are also claimed exempt under section 32 legal professional privilege (documents 7, 22, 30, 34, 44 and 46); and
   • Decisions of the Crisis Council of Cabinet ('CCC') are claimed to be exempt under section 28(1)(d) as involving disclosure of any deliberation or decision of Cabinet other than a document by which a decision of the Cabinet was officially published (documents 23, 34 and 61).
2. Documents 23 and 34 fall into two categories and are claimed to be exempt under section 30 as internal working documents and under section 28(1)(d) as disclosing any deliberation or decision of Cabinet.

1. The matter was heard on 26 and 27 March 2024. The Department called Nicole Brady, Deputy Secretary, Reform and Planning at the Health Department.
2. The Department (and the Tribunal) has seen the contents of the disputed documents. This gives the Department an advantage regarding specific submissions.
3. Mr Davis's submissions are more general and broader in nature.
4. As I consider the disputed documents individually below, I have referred to Mr Davis' submissions as they applied to the broad categories of exemptions relied on by the Department.

1. In a chronology provided at hearing, Mr Pizer SC outlined the context of this case. It began with the advice by the Chief Health Officer ('CHO') dated 15 March 2020 to the Minister for Health ('Minister') regarding a serious and potentially catastrophic risk to public health arising from Covid-19 throughout Victoria.
2. On 16 March 2020 the Minister declared a State of Emergency under section 198 of the Public Health and Wellbeing Act 2008 (Vic) (_'_PHW Act') which was published in the Government Gazette. The State of Emergency was extended on various occasions and was in force at the times relevant to the disputed documents in this proceeding.
3. The chronology noted the CHO has the power under section 199 of the PHW Act to authorise certain people to exercise emergency powers as 'authorised officers', one of which was Dr Finn Romanes, the then Public Health Commander.
4. When making a direction under section 200, the authorised officer has regard to the guiding principles in Part 2 of the Act, namely evidence-based decision making and collaboration.
5. Section 198(1) of the PHW Act provides:

(1) The Minister may, on the advice of the Chief Health Officer and after consultation with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013, declare a state of emergency arising out of any circumstances causing a serious risk to public health.

1. Under s 199(1), if a state of emergency exists under section 198 and the CHO believes it is reasonably necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health, the CHO may authorise authorised officers to exercise emergency powers set out in section 200.
2. Section 200(1)(b) is the power to restrict the movement of any person or group of persons within the emergency area. Section 200(1)(d) is the power to give any other direction that the authorised officer considers is reasonably necessary to protect public health.
3. Mr Pizer SC submitted that to capture the information coming from a variety of sources, the Department devised a document known as a Single Source of Truth ('SSOT'). This was an iterative document which was updated and developed as new information came to light. It was created as instructions to lawyers in the Department, COVID-19 Legal, as a single source of instructions for them to provide legal advice on matters including public health directions.[7]
4. The authorised officer would make a public health direction under section 200.
5. In July 2020, there was a significant increase in reporting of COVID-19 cases in Victoria. On 30 July 2020 at 11.59pm, Stay at Home Directions (No 5) started operation.
6. On 2 August 2020 at 6.00pm, Stay at Home Directions (No. 6) started operation, revoking direction number 5.
7. On 2 August 2020 at 7.59pm, Stay at Home Directions (No. 7) started operation, revoking direction number 6.
8. In submissions, the Department cautioned the Tribunal that this hearing is not a Royal Commission into the state's response to the COVID-19 pandemic or Stay at Home Direction (No. 7) and referred to Vice President Judge Bowman and Deputy President Macnamara's case commentaries about the role of the Tribunal in FOI matters.[8]
9. Further, the Department submitted Mr Davis' contention that the PHW Act powers were used in a manner inconsistent with the objectives of that Act is irrelevant to the questions for determination by the Tribunal under the FOI Act.[9] It was also submitted that Mr Davis' submission that authorised officers exceeded their powers under the PHW Act is also an irrelevant consideration.[10] The Tribunal's role is confined to determining whether the correct or preferable decision is to grant or refuse access to the 15 documents in dispute.

1. Mr Davis' submissions dated 8 December 2022 agreed with the Department's chronology, factual outline and legislative regime.
2. He stated he seeks documents related to the Stay at Home Directions (Restricted Areas) (No. 7), namely the 'Curfew direction' dated 2 August 2020, which he submitted introduced 'an unprecedented curfew on the movements of more than 5 million Melbournians.'[11]
3. Mr Davis submitted key stakeholders were not consulted or informed until near the time the curfew was announced:

The genesis of this FOI request...arises not just from the PHWA, but from a desire to see and understand the decision making process of the sole decision maker, the Chief Health Officer or their delegate, in this particular case, the Public Health Commander, Doctor Finn[Romanes].[12]

1. He noted the decision about the curfew came 'out of the blue' and that 'nobody expected the announcement'.[13]
2. Mr Davis submitted the powers under the PHW Act have been used in practice in a way that is inconsistent with the objectives of the Act.[14]
3. With respect to the section 30 working documents exemption, Mr Davis submitted that whilst some of the documents are working documents, the Department also need to satisfy the second limb that it is contrary the public interest to release the documents.
4. With respect to the section 32 legal privilege exemption, Mr Davis' submissions attempt to draw a distinction between legal material (as distinct from advice) '...which is inherently meshed with the actual orders and decision chain for orders...made under the PHWA.'[15]
5. He notes that under the PHW Act the mechanism of decision making is described in detail and requires that there is assessment of potential Charter of Human Rights and Responsibilities Act 2006 (Vic) issues. While he accepts the broad principle that legal professional privilege extends widely, he submitted that communications should only be protected if made for the dominant purpose of obtaining or providing legal advice, and that the Tribunal should consider the question of

...whether a human rights or Charter assessment required effectively under the PHWA and requiring weighting and close policy assessment is the same as "legal advice" or whether it is advice, consistent with the requirements of the Act, that has a clear policy assessment function.[16]

1. Mr Davis submitted that Victoria's management of the COVID-19 pandemic and the responsibility of the Department of Health and the Chief Health Officer under the PHW Act mean '[i]t is in the public interest that these matters be fully scrutinised.'[17]
2. Mr Davis noted the object in section 3 of the FOI Act '...is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria,' which provides a general right of access to government documents. He submitted that section 16 of the FOI Act, which encourages Ministers and agencies to administer the Act with 'a view to making the maximum amount of government informational promptly and inexpensively available to the public' is directly relevant to the objects and principles of the PHW Act and that 'the [FOI Act] should not be used to block material that would, under another Act, have significant public airing, or which another Act contemplates broad involvement of the community or the scientific community beyond the Department.'[18]
3. He noted the documents refer to an email exchange between Dr Romanes and the Chief Health Officer, and 'that is exactly the sort of discussion that...ought to be in the public domain because it would actually inform us to understand...how those points within the Public Health and Wellbeing Act were actioned.'[19]

1. The Department called Nicole Brady, Deputy Secretary, Reform and Medical Research at the Department.
2. She made two statements dated 10 October 2022 and 22 December 2023. Her evidence refers to Directions 6 and 7, which are not described in her statements but are summarised as follows:
3. Direction 6 was the Stay at Home Directions (Restricted Areas) (No. 6) which revoked the Stay at Home Directions (Restricted Areas) (No. 5) at 6pm on 2 August 2020 and was revoked by Stay at Home Directions (Restricted Areas) (No. 7) at 7.59pm on 2 August 2020.
4. Direction 7 was the Stay at Home Directions (Restricted Areas) (No. 7) made by Dr Romanes, Public Health Commander, dated 2 August 2020 which came into operation at 7.59pm and included, at paragraph 5(1AG), the curfew provision providing that a person may not leave their home between 8.00pm and 5.00am.

1. Ms Brady's first statement[20] outlined the legislative regime under section 200 of the PHW Act outlined above, noting that emergency powers include the power to restrict the movement of any person within an emergency area and/or make a direction considered reasonably necessary to protect public health. She explained that the power to make a direction required the authorised officer to be satisfied of various legal criteria before the directions were made, therefore detailed and comprehensive legal advice was obtained from COVID-19 Legal.
2. This advice was described as 'an essential part of the deliberative processes of an authorised officer making a determination to give a direction under s 200 of the PHW Act.'[21]
3. She stated the guiding principles of the PHW Act required officers to make decisions that are the most effective and efficient public health and wellbeing interventions, based on evidence that is relevant and reliable. Further, she noted the PHW Act's guiding principles emphasise that public health and wellbeing can be enhanced through collaboration between all levels of Government and industry, business, communities and individuals.[22]
4. Given the 'time of intense crisis and emergency', Ms Brady detailed that free and frank exchange of information was required in rapid time frames, with the underlying subject matter inherently sensitive. In this context, drafting instructions prepared by Department officers were known as 'the Single Source Of Truth'. These were developed iteratively, updated as drafts of proposed orders were developed and rapid consultation occurred. The development and drafting of proposed directions also included views from the CCC.[23]
5. Ms Brady stated it is crucial that the communication of the kind contained in the exempt documents is able to occur fully and frankly, and noted whenever a public health order was made extensive public material was made available.[24]
6. I refer to her evidence about each disputed document below.

1. On this same theme, Ms Brady referred to evidence given by Professor Sutton in another VCAT hearing and adopted his concerns regarding disclosure.[26]
2. She noted the importance of Departmental officers providing 'frank and fearless advice' containing 'uninhibited opinions, advice or recommendations...in response to a rapidly evolving public health emergency, without concern that such thoughts and advice would be published'.[27] Disclosure may inhibit the CHO or they may be reticent to provide advice or contributions in writing. Further, the disclosure of draft or provisional advice could cause confusion and unnecessary debate, particularly when not reflective of final considered views.

1. Professor Brett Sutton was not called as a witness in this proceeding however Ms Brady attached his statement, dated 2 February 2023 and from another VCAT FOI case, to her statement. Ms Brady made a number of references adopting the contents of Professor Sutton's statement.[28] In cross examination she acknowledged the statement was from a different case concerning different documents.[29]
2. His statement relates to a draft of a health plan: 'COVID-19 Pandemic plan for the Victorian Health Sector' which was finalised on 10 March 2020 and published on the Department website. He stated if the drafts of the Plan had been disclosed, he, and any future CHO, would be inhibited, as he would be reticent to contribute in writing, particularly preliminary or evolving thoughts based on incomplete or uncertain information, as distinct from his final considered advice, in the context of formulation of similar policies and plans for public health emergencies in the future. He was also concerned about drafts prompting unnecessary public confusion or debate.
3. The same observations were made regarding disclosure of his email to the Minister attaching potential Directives, which recorded preliminary thoughts on social distancing measures in Victoria, with Professor Sutton contending that its disclosure would affect the provision of uninhibited opinions, advice or recommendations by the CHO or any other governmental officer.
4. I note that Professor Sutton's statement was tendered when he gave evidence in the proceeding Davis v Department of Health (Review and Regulation) [2023] VCAT 493. That case was heard by Senior Member Dea on 3 February 2023. SM Dea quotes from paragraphs [18] to [21] of that statement, in paragraph [37] of her reasons. Senior Member Dea accepted Professor Sutton's evidence, but it was clear from her reasons her acceptance of his evidence was confined to his evidence about the Draft Plans namely, the disputed documents in that case.
5. Professor Sutton did not make a statement or give evidence in this case. His evidence and observations appear to be of specific relevance to the disputed documents in that case. I note the general point he makes that the disclosure of draft documents would have an inhibiting effect on his and other CHO's contributions to draft documents in the future.

Internal working documents

(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

(b) would be contrary to the public interest.

• (1A) Subsection (1) applies in relation to a council as if for "Minister" there were substituted "member of the council".

(2) In the case of a document of the kind referred to in section 8(1), the matter referred to in subsection (1)(a) of this section does not include matter that is provided for the use or guidance of, or is used or may be used for, the purpose of making decisions or recommendations, or enforcing enactments or schemes, referred to in section 8(1).

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

(4) This section does not apply to the record of a final decision, order or ruling given in the exercise of an adjudicative function, and any reason which explains that decision, order or ruling.

(5) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 27 shall state the public interest considerations on which the decision is based.

(6) Subsection (1) shall cease to apply to a document brought into existence after the day of commencement of this section when a period of ten years has elapsed since the last day of the year in which the document came into existence.

1. A document is exempt under section 30(1) if; (a) disclosure of the document would disclose maters in the nature of (i) opinion, advice or recommendation prepared by an officer, or (ii) consultation or deliberation that has taken place between officers; and (b) the opinion, advice recommendation, consultation or deliberation was prepared or took place in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of government; and (c) disclosure would be contrary to the public interest.
2. In Penhalluriack v Department of Labour and Industry,[30] Lazarus J stated:

...the purpose of this provision is to protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and the like decisions to be taken after the frankest possible interchange of views and ideas between officers of the Public Service and between them and their Minister...[31]

1. Noting the breadth of this exemption his Honour also stated:

Such an exemption is very wide indeed, and no doubt the superadded requirement that disclosure would be contrary to the public interest is placed there to cut down the breadth of the application of the exemption so that it extends to protect the public interest, but no further.[32]

1. The deliberative process has been held to include:

...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.'[33]

1. In Corry v Victoria Police[34] Macnamara DP observed 'the deliberative process of a department are no more than its processes of thinking and discussion leading to a decision.'[35]
2. With respect to considering if disclosure would be contrary to the public interest, in Tucker v Commissioner of State Revenue,[36] Justice Quigley set out the relevant principles that apply when considering whether disclosure would be contrary to the public interest:
   1. regard must be had to both the nature of the information and nature of the document;
   2. the more sensitive or contentious issues involved in the communication, the more likely it is that communication should not be disclosed;
   3. draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release. This is particularly so when the final version of the document has been made public;
   4. 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;
   5. decision-makers should be judged on their final decisions and their reasons for them, not on what might have been considered or recommended by others in preliminary or draft internal working documents;
   6. it is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of decision-making investigative or other processes; and
   7. public interest concerns the interest of the public as distinct from the interest of individuals.[37]
3. In Honeywood v Department for Innovation, Industry and Regional Development[38] ('Honeywood') Judge Dove stated, in the context of section 30,:

The respondent must satisfy that disclosure is against the public interest. Of course, information which is innocuous, out-of-date, or already in the public arena, would assist in suggesting that disclosure was not contrary to the public interest. The public interest override is a balancing exercise, between protecting documents containing confidential information on the one hand, and in the public interest in the community having access to documents which are of concern generally to the community.[39]

1. The Department submitted documents 7, 22, 30, 34, 44 and 46, emails regarding draft Public Health Directions, are exempt under section 30 internal working documents. Documents 7, 22, 30 and 46 are also claimed to be exempt under legal professional privilege, section 32. Of these emails, documents 30 and 46 are considered under section 32 in my reasons.
2. Documents 11, 13, 21 and 33, the SSOT documents, are also claimed under section 30 of the FOI Act but are considered under section 32 in my reasons.
3. Further, while each of the documents within the category of Draft Public Health Directions, namely documents 23, 31, 37 and 53 are claimed under section 30, these are considered under section 32 in my reasons.

Document 7 - Internal email re timing of announcements, 2 August 2020 (partially exempt)

1. Document 7 is an email from a Department officer to various other officers described as an internal email regarding the timing of announcements on 2 August 2020 and the commencement of certain measures.
2. Ms Brady referred to the document's footer which read PROTECTED//Cabinet-in Confidence and its subject line which read CIC:PROTECTED, noting:

The document sets out suggestions as to what could occur and when, raises queries about certain matters, but does not necessarily reflect what actually did occur and, to that extent, could be misleading if released. It is clear from the document that it was incomplete at the time it was sent.[40]

1. Ms Brady described this document as a confidential email sent at 10.28am on 2 August 2020. Yellow highlighting shows that aspects have not been finalised and that requests for opinions and input are being sought. She expressed her opinion that disclosure would be contrary to the public interest.
2. Further, she stated it was prepared for the dominant purpose of providing instructions to lawyers in COVID-19 Legal regarding the current state of drafting instructions for Direction 6, that there were unresolved drafting instructions and the timing of announcements for expected directions to come into effect.

1. Mr Pizer SC submitted this document came within the three requirements of section 30 as an internal working document.
2. Firstly, the document discloses an opinion, advice or recommendation prepared by an officer. The document is not finalised, it seeks the input with yellow highlighting notes to 'check', it was sent early in the day and captures consultation or deliberations between officers in relation to decisions being made on 2 August 2020.[41]
3. Secondly, the opinion, advice or recommendation was prepared in the course of or for the purpose of the deliberative processes involved in the functions of an agency or the Government as it was prepared to assist the Public Health Commander to make appropriate directions under the PHW Act and does not contain 'purely factual material.'[42]
4. Thirdly, disclosure is contrary to the public interest. Mr Pizer SC referred to the considerations in his submissions, namely the need for the CHO and other Departmental officers to provide frank and fearless advice and the effect disclosure of such comments and contributions would have on inhibiting the way advice is provided, which he stated equally applied to emails relating to the Public Health Directions.[43]
5. The Department submitted Ms Brady's evidence established that frank and fearless advice on the formulation of documents may be inhibited were advice to be published, including willingness to provide advice in writing. This reticence could seriously impair the Government's response to future emergencies. Further, she noted the disclosure of draft documents is likely to cause confusion and unnecessary debate.
6. Mr Pizer SC submitted the following factors are relevant to assessing if disclosure would be contrary to the public interest:
   • the nature of the information in the documents, being inherently sensitive given the nature and impact of the Public Health Directions;
   • the nature of the document (preliminary or anterior in nature) particularly when the final document has been made public;
   • the seniority of the officers involved;
   • that disclosure of possibilities considered but not adopted would generate unnecessary confusion and debate,
   • that disclosure may have an adverse effect on the integrity or effectiveness of the process of responding to future public health emergencies, and,
   • generalised public interest grounds relied on by the applicant, such as Government transparency and scrutiny of Government decisions, would not be advanced through disclosure as disclosing particular iterations of documents does not enable 'full scrutiny' of the Government's response to COVID-19 or the consequences of adopting that response. [44]

1. Mr Davis submitted section 30(1) requires that both (a) and (b) are satisfied. Section 30(1)(a) is not satisfied given the 'interplay' with the PHW Act under which transparency, accountability, proportionality, and scientific basis is required for decisions and advice.[45]
2. He referenced the Office of the Victorian Information Commissioner ('OVIC') Exemption Practice Note Number 2 and its description of factors relevant to the public interest and 'Factors that are given too much weight', quoting in full the sections on 'Draft documents,' 'Inhibiting frankness and candour' and 'Sensitivity of information.'[46]
3. Mr Davis cited Friends of Mallacoota Inc v Department of Planning and Community Development[47] ('Friends of Mallacoota') and that where final versions of a document have been made public, it is not in the public interest to release the drafts. Drawing a distinction, he submitted in this case the final version of document 7 has not been released and that there was a very limited range of material.[48]
4. Further he cites Lambert v VicRoads[49] which cautioned against disclosing a draft when a final version will be available at a later time. Mr Davis submitted in the present case there is no intention to release a final version of the documents relied on by the authorised officer when making the 2 August 2020 stay at home direction.[50] He also referred to Mildenhall v Department of Planning and Development[51] which referred to preliminary drafts requiring a 'specially pressing' public interest to override privacy and confidentiality of the authors. He submitted the public interest in the present case is 'specially pressing.'[52]
5. Mr Davis referred to the tension between the FOI Act and the principles of the PHW Act, and submitted the Department has not shown that release of the documents sought is contrary to the public interest. He rejected the 'sensitivity' factors raised by the Department against disclosure and contended the wide circulation of material informing and surrounding the Direction, such as preliminary advices and opinions, will improve decision making as contemplated in the objectives of the Act.[53] He rejected claims that disclosure would lead to confusion and ill-informed debate, noting it was in direct tension with the objectives of the PHW Act which favour transparency, accountability and open decision making.[54]
6. Further, he submitted that the claims disclosure will inhibit 'the independence of officers or the making of proper and detailed research and submissions' are absurd. He submitted the best protection is for the Chief Health Officer to follow the guidance of the PHW Act which requires open decision making with a transparent and accountable process.[55]
7. I refer to these submissions in my consideration of Documents 22, 34, and 44.

1. I have reviewed the document which is an email containing a table of the sequence for announcements and commencement of directions.
2. I am satisfied it reveals consultation or deliberations between Departmental officers. The consultations are constituted by the process of propositions and responses indicated in the document by yellow highlighted words and phrases, and comments in red text proposing a decision.
3. I am satisfied the contents include deliberations in the course of the functions of the Department which Ms Brady's evidence stipulates was for the purposes of Direction 6, the Public Health Order made by the Public Health Commander. It relates to formulation of content of the proposed Public Health Direction.
4. The second consideration in section 30(1)(b) is whether disclosure be contrary to the public interest. In my view, the answer is yes.
5. Firstly, the draft document shows a number of items that need to be checked and therefore may not reflect the final position. It could be confusing and unhelpful to reveal possible actions that were considered, but then not ultimately adopted.
6. Secondly, this is a consultation process and it is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of that process.
7. Mr Davis makes the submission that the FOI Act is being used to block the principles at the heart of the PHW Act, namely transparency, accountability, scientific involvement and proportionality and the public scrutiny of obligations. Although the State of Emergency and the Stay at Home directions were made under the PHW Act, the legislation relevant to the decisions under review is the FOI Act. It is the provisions of the FOI Act that apply to the release or otherwise of the disputed documents. I am not of the view the PHW Act provisions apply to this decision-making process, and I reject Mr Davis submissions that the objectives of the PHW Act are relevant considerations. This is consistent with the approach taken by SM Dea where, noting the vast range of documents created in the exercise of statutory provisions, stated that the FOI Act 'does not override the exercise of the powers and obligations in those statutory instruments but rather regulates the disclosure of the documents created.'[56]
8. I find Document 7 is an exempt document on the ground it is an internal working document. I do not consider the exemption claimed on the basis of legal privilege.

Document 22 - Internal email chain 2 August 2020 - released in part

1. This is an email chain which follows an initial email dated 2 August 2020 at 12.09pm.[57] This first email was document 10, which has been disclosed. The remaining emails are described as 'confidential exchanges that describe changes that were made to the SSOT document for the purpose of consulting in respect of, and communicating the details of proposals for, the final Directions 6 and 7.'[58] Ms Brady stated a redacted version has been released to Mr Davis, redacting the recipients names and the content in which instructions were given for drafting directions and providing legal advice. She describes the redacted text as capturing consultation between officers which it is contrary to the public interest to disclose.[59]
2. Further, the body of emails are instructions to COVID-19 Legal for the dominant purpose of drafting directions and providing legal advice.

1. The Department submitted what remains in dispute in document 22 comprises confidential exchanges or consultation between officers that describe changes to the SSOT document. The consultation occurred in the context of a rapidly evolving public health emergency. Ms Brady's evidence establishes the consultations between officers capture discussion regarding what the public health directions should contain.
2. The Department submitted that, as the first part of section 30(1) is met, the question is whether disclosure of the redacted parts would be contrary to the public interest.
3. Quoting Ms Brady, Mr Pizer SC stated there is public interest in ensuring the ability of departmental officers to provide advice without fear of later publication. There is also a risk rapidly prepared emails could be taken out of context without the full context of the evolution of the proposed directions.[60]

1. I am satisfied Document 22 contains consultations or deliberations between officers. This is evidenced from the fact the redacted information is updating Departmental officers regarding proposed changes to the SSOT with respect to Stay at Home directions and is in a state of flux, for example, demonstrated by '(TBC)' being noted beside proposed changes. The redacted parts show what has been referred to as the 'thinking processes' of Departmental officers before reaching a decision. The number of email recipients also demonstrates the consultative character of the document.
2. I find the consultations have occurred in the course of the deliberative processes involved in the functions of government. This also evidenced by the fact such consultations are within email trails forwarded to other officers seeking input.
3. The email trails demonstrate the deliberative process, indicative of what was described in Anderton v Medical Practitioners Board[61] as a written process of thinking and discussion that leads to a decision.
4. The second consideration in section 30(1)(b) is whether disclosure be contrary to the public interest. In my view, the answer is yes.
5. It is contrary to the public interest to disclose the deliberations or consultations between officers for the purposes of refining the SSOT within the time frame leading to delivery of Direction 6. I accept the submissions that disclosure may cause confusion in absence of the full context of the evolution of the process, with such emails only providing a part explanation. Further, the release may have an adverse impact on officers providing frank input during pre-decision communications in a rapidly evolving public health crisis if that thinking process were to be disclosed.
6. I find Document 22 is an exempt document on the ground it is an internal working document. I do not consider the exemption claimed on the basis of legal privilege.

Document 34 - Email chain between Public Health Commander and Chief Health Officer, 2 August 2020

1. In her first statement Ms Brady stated Document 34 is an email chain between Dr Romanes and the Chief Health Officer Professor Sutton which involves deliberation and a request for advice relevant to the making of the proposed Direction 7. Ms Brady notes it is communication 'at the highest levels about a very sensitive subject matter that should be permitted to occur without concern about potential disclosure more widely.' Further, she stated it would disclose discussions of Cabinet or matters that were subject to discussion.
2. In her second statement Ms Brady relied on Professor Sutton's statement for disclosure being contrary to the public interest, noting disclosure could inhibit the provision of advice, and discourage consultation and full and frank advice.
3. Further, Ms Brady states that the document would also disclose briefings to the CCC, as well as discussions and decisions of that Cabinet subcommittee.

1. Mr Pizer SC submitted this document contains opinions, advice and recommendations made by Departmental officers as to the contents of a proposed Public Health Direction. He also submitted that the document records consultation or deliberations between officers. The email was sent in the course of assisting Dr Romanes, the Public Health Commander, to make appropriate directions under the PHW Act.
2. Mr Pizer SC submitted disclosure would be against the public interest, noting the evidence of Ms Brady in her second statement at [58]-[59].

1. This document is an email exchange containing communication that involves consultation between the most senior health officers in the State at a highly sensitive time. I accept it falls under the definition of section 30 as a working document, as it comprises deliberation or consultation between officers. It is also in the course of the deliberative process as the time of the emails reflects the exchange of views prior to the issuing of Stay at Home Direction (No 7). I am satisfied it is a document within section 30(1)(a) as it shows the thinking process of departmental officers.
2. The second consideration in section 30(1)(b) is whether disclosure would be contrary to the public interest. I note in Friends of Mallacoota Judge Hampel set out the relevant principles to section 30(1)(b).[62] I take into account the following factors:
   • The more sensitive or contentious the issues involved in the communication the more likely the communication should not be disclosed.
3. The document is an email exchange between the Public Health Commander and the Chief Health Officer. The information in the email is of a sensitive and contentious nature, which weighs against disclosure.
   • Draft internal working documents or preliminary advices and opinions are more generally than not, inappropriate for release. Particularly so when the final version of the document has been made public.
4. The email is not a working document or preliminary advice, where views expressed can be characterised as preliminary, or not representing a final position.
   • 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.
5. It is not the case that the document reflects views regarding differing possibilities that do not reflect the final position, and therefore it is not a document that could lead to confusing and ill-informed debate if disclosed.
   • 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.
6. In this case the document is not a part explanation, which could be misleading and confusing, rather than a complete position.
   • It would be contrary to the public interest if disclosure would have an adverse effect on the integrity or effectiveness of decision-making, investigative or other processes.
7. This has been considered in Conyers v Monash University[63] where the disputed document was a document obtained in confidence during the course of an internal investigation. It was held contrary to the public interest to release it as this would adversely affect the integrity of the investigation process.
8. In Gordon v Commissioner of Corporate Affairs[64] the disputed document was the report of an investigator regarding a complaint. This was also held contrary to the public interest to disclose, to protect the integrity of the decision-making processes. In JCL v Victoria Police[65] this reasoning was also applied to a police investigation.
9. These cases can be distinguished as here there is no investigative process applicable. In this case the document relates to a concern expressed by the Chief Health Commander about a Stay at Home Direction. The disclosure will raise questions about the decision-making processes. This may achieve clarification about the state of information available and provided to the decision makers at the relevant time.
10. This is communication between very senior public officers of a highly sensitive nature. The question is whether disclosure would inhibit frankness and candour in making communications in the future. In the document a genuine question is being raised and answered. It is not a contest of different views but a question and answer.
11. In my view it is unlikely its release will inhibit candour or frankness, as it not a matter of opposing positions, it is a matter of clarification. The process of clarifying information prior to reaching a decision is not one that Departmental officers would be reticent to engage in if there was a possibility of disclosure. In the event of another public health emergency the release of this document will not impact this type of communication between senior officers.
12. This is not about an issue that concerns the interests of individuals or is a matter of curiosity. Rather it concerns the interests of the community at large. This is a matter of high public interest, rather than something 'of interest to the public' and reflects the seriousness of the issue in question.
13. In my view, having balanced the above factors, I do not find disclosure contrary to the public interest. The Department has not discharged its onus on the balance of probabilities that this document is exempt.
14. I do not find Document 34 to be an exempt document under section 30.
15. An exemption for this document is also claimed under section 28(1)(d) which I consider below.

Document 44 - internal email chain re key messages and the CHO updated, 2 August 2020 (partially exempt).

1. In her first statement Ms Brady describes document 44 as 'a covering email chain that makes it clear that amendment of the draft occurred (setting out that amendment) and seeking review and approval by Dr Romanes in respect of Document 45.'[66]
2. In her second statement she describes document 44 as 'an email from Dr Romanes to Departmental officers and to a "DHHS Emergency Communications" email address. The body of the email contains a reference to a consultation or deliberation that has taken place between officers as to content of the Directions 6 and 7 that was ultimately made.'[67]
3. Mr Brady referred to Professor Sutton's witness statement paragraphs [17] to [21] and [24] to [28] for the reasons why it would be contrary to the public interest to disclose Document 44.

1. Mr Pizer SC submitted Document 44 has largely been released. All that remains in dispute is the body of an email sent at 6.50pm by Dr Romanes to officers of the Department.[68] It was submitted that the response of 6.50pm comprises consultation or deliberations between officers and it is for the purpose of determining whether to approve a document for public release.
2. Mr Pizer SC relied on his submissions at [66]-[68], detailed in paragraph [95] above, as to why it would be contrary to the public interest to release document 44.

1. I find the email is of a consultative or deliberative nature in the course of a deliberative process. It includes a reference to deliberation as to the content of Direction 7 that was ultimately made.
2. The second consideration in section 30(1)(b) is whether disclosure would be contrary to the public interest. In my view, the answer is yes.
3. The email is between one of the most senior Departmental officers and other Department staff. It is made in the course of developing and finalising policy. It is only one document showing one part of the deliberations and does not reveal the complete process. This is an iterative process at an early stage of the policy development process. The document forms part of an explanation rather than the complete and final version of the policy. Disclosure could inhibit frankness and candour in making of these communications. Disclosure could also lead to confusion or unnecessary debate given the early iterative stage of such communications.
4. For these reasons it is contrary to the public interest to disclose the document.
5. I find Document 44 is an exempt document on the ground it is an internal working document.

Section 32 Documents affecting legal proceedings

Documents affecting legal proceedings

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

(2) A document of the kind referred to in section 8(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1).

1. A document is exempt under section 32 if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or legal client privilege.
2. Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services. Legal client privilege protects confidential communications between a client and a lawyer.
3. A document will be privileged and exempt under section 32(1) if:

(a) it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;

(b) it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

1. it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.[69]

1. Document 46 is claimed as exempt under section 32. It is an email chain submitted to contain legal advice as to why Public Health Direction 6 should be revoked and replaced.
2. Documents 11, 13, 21 and 33, the 'Single Source of Truth' documents are each claimed to fall under this exemption.
3. Documents 23, 31, 37 and 53, the draft Public Health Directions, are also claimed under section 32.

1. Mr Pizer SC submitted '[l]egal professional privilege applies if a document would disclose a confidential communication between the Department and its professional legal advisers that was made for the dominant purpose of obtaining of providing legal advice.'[70] Three considerations apply. Firstly, whether a lawyer/client relationship exists between a government agency and salaried lawyers. Secondly, whether the dominant purpose of obtaining or providing legal advice predominates over other purposes. This is to be objectively determined. Thirdly, that privilege does not just attach to narrow legal advice but can cover providing instructions to a lawyer and a lawyer providing their legal opinion on a draft document.

1. Mr Davis submitted he did not seek access to documents containing 'pure legal advice.' But he did 'draw a distinction between legal material (as distinct from advice) which is inherently 'meshed' with the actual orders and decision chain for orders such as the curfew directions made under the PHW Act.'[71]
2. I refer to this submission in my consideration of Documents 46, 11, 13, 21, 33, 23, 30, 31, 37 and 53.

Document 46 - Internal email chain re 3rd set of documents, 2 August 2020 (partially exempt)

1. In her second statement Ms Brady stated that Document 46 relates to the provision of legal advice by the COVID-19 Legal team in the Department. It comprises emails to and from COVID-19 Legal and senior Department officers, including Professor Sutton and Dr Romanes, with drafts of briefing documents which provided advice ahead of Direction 7. The predominant or sole purpose of these communications was for the provision of legal advice in respect of making the proposed directions.

1. Mr Pizer SC submitted Document 46 is an email chain comprising emails sent on 2 August 2020. He submits the emails disclose legal advice to Dr Romanes as to why Public Health Direction 6 should be revoked and replaced. He submits all the emails in the chain contain opinions, advice and recommendations given by officers of the Department in relation to Public Health Direction 6 or 7.[72]

1. Whether a communication is privileged depends upon the purpose for which it was made. I accept the communications relate to giving or obtaining legal advice and were made for the dominant purpose of obtaining or providing legal advice.
2. The legally privileged nature of the communications is evidenced through following the email trail in the document. The first email in time from a lawyer to Dr Romanes involves the provision of legal services, namely documents for signing and advice. There is then an email requesting a change be made and seeking a response from email recipients including General Counsel. The communications are in regard to clarifications with General Counsel concerning aspects of Direction 7 and include emails from two different senior lawyers confirming legal advice.
3. I find document 46 is an exempt document on the ground of legal professional privilege. I do not consider whether it is exempt as a working document.

1. In her second statement, Ms Brady described the SSOT documents as a 'set of drafting instructions, which set out and captured the detail of the proposed Directions 6 and 7.'[73] She stated that they were created for the purposes of consultation and deliberation between Department officers and COVID-19 Legal about the content of the proposed directions, and therefore subject to legal professional privilege.
2. She stated Document 11 is a SSOT document created for the dominant, if not sole, purpose of providing a set of instructions to COVID-19 Legal to obtain legal advice about proposed directions under the PHW Act. It is a version at a particular point in time.
3. Document 13 is a further version of the SSOT document, sent to a number of Departmental officers and Department of Premier and Cabinet officers for the dominant, if not sole purpose, of ensuring instructions were accurately captured so that COVID-19 Legal could draft directions and provide legal advice.
4. Document 21 is a further version of the SSOT document. It was confidential, sent for the dominant, if not sole, purpose of obtaining legal advice as described above.
5. Document 33 is an updated version of the SSOT document. Again, it was confidential, and sent to Department officers to ensure the accuracy of instructions to COVID-19 Legal for the drafting of directions and provision of legal advice.
6. Ms Brady noted each of the Department lawyers responsible for providing legal advice in relation to Direction 7 was admitted to practice and held practising certificates.

1. Mr Pizer SC submitted each SSOT document is a confidential document prepared by the Department for the dominant purpose of a lawyer providing legal advice to the client in respect of the proposed Public Health Directions.
2. It was submitted the SSOT documents were prepared by Department officers as a set of drafting instructions to be given to lawyers in COVID -19 Legal. It is submitted that relying on instructions in these documents, the lawyers in COVID 19 Legal 'provided comprehensive and detailed legal advice to the authorised officer who was contemplating making a direction under section 200 of the PHW Act.'[74] The submissions note this process was followed for Direction 6 and Direction 7 and as each SSOT was developed, it was provided to COVID-19 Legal and resulted in detailed legal advice being provided.

1. The documents were attached to emails (documents 10, 12, 22 and 32) with documents 10, 12 and 32 either no longer sought or having been disclosed, either in whole or in part. Only the undisclosed parts of Document 22 remain in dispute. I have confirmed the exemption of the remaining emails in Document 22 as an internal working document, with the chain described as 'confidential exchanges that describe changes that were made to the SSOT document for the purpose of consulting in respect of, and communicating the detail of proposals for, the final Directions 6 and 7.'[75]
2. The SSOT documents themselves are in table form with two appendices.[76] Each document is headed SSOT - Announcements to be made on 2 August - Stage 4 for metropolitan Melbourne and Stage 3 for regional Victoria.
3. The column of the table labelled as 'Current Stage 3', which lists measures already in place, is not claimed to be privileged. Appendix 1 is also not claimed to be privilege, which is a table of Metropolitan Melbourne LGAs.
4. The rest of the SSOT documents, including appendix 2, have notations such as 'TBC,' as well as yellow highlighting, added words in red and underlined, and passages marked with strike outs through them.
5. I accept Ms Brady's evidence, and all parts of the documents where legal professional privilege is claimed contain confidential communications between client and lawyers within the Department for the dominant, if not sole, purpose of obtaining legal information and either requesting or confirming advice.
6. I find documents 11, 13, 21 and 33 are exempt documents on the ground of legal professional privilege, I do not consider whether they are exempt as internal working documents.

Draft Public Health Directions Documents 23, 30,31, 37 and 53

1. In her first statement, Ms Brady described these documents as drafts of Public Health Direction 7.[77]
2. In her first statement she noted all the lawyers in the COVID-19 Legal team are admitted to practice and hold practising certificates.[78]
3. Ms Brady described Document 23 as a draft of Direction 7 which is confidential in that it has multiple contributors, including legal officers. The comments contained therein seek to test whether COVID-19 Legal properly translated the SSOT, as well as request and provide legal advice. Ms Brady relied on Professor Sutton's witness statement as setting out reasons for disclosure being contrary to the public interest. Further, she noted it would be contrary to public interest to undermine the client legal privilege.
4. Ms Brady described Document 31 as a draft of Direction 6, which appears to be a final or near final draft. It was attached to Document 30.
5. In her first statement Ms Brady stated Document 30 is an email chain in relation to the making of directions, particularly the proposed Directions 6 and 7 and the iterative process involved in drafting. She noted:

There are suggestions for amendment, earlier drafts of passages 'for comment', all in the context of COVID-19 Legal seeking instructions to assist in drafting documents relevant to the making of proposed Directions 6 and 7. This is apparent from the senders and recipients of the emails in the email chain.[79]

Document 30 is an email chain between officers from the Department, officers of the Department of Premier and Cabinet, officers of the Department of Justice and Community Safety and the Director, Legal Services for the Department. The email chain relates specifically to drafting by COVID-19 Legal of aspects of Directions 6 and 7 in accordance with their instructions and feedback in relation to the drafting.[80]

1. She stated Document 30 contains opinions, advice and recommendations of Departmental officers as to the drafting of parts of Direction 6. She also notes Document 30 was a confidential communication between the Department and its lawyers that was made for the sole purpose of providing legal advice in respect of Document 31 which is a draft Direction. She noted disclosure would disclose confidential communications between the Department and its lawyers for the sole purpose of providing legal advice.
2. Ms Brady described Document 37 as a draft of Direction 6 which has confidential communications between the Department and its lawyers for the sole purpose of legal advice. It also includes Department officers' opinions, advice and recommendations. Ms Brady relies on Professor Sutton's views as disclosure being against the public interest and is subject to legal professional privilege.
3. Ms Brady described Document 53 as a draft version of Direction 7, attached to Document 36. Document 36 was an email chain containing two emails from Ed Bryden, Director, Legal Services to Dr Romanes. This has now been released with irrelevant information redacted.[81]

1. Mr Pizer SC submitted Documents 23, 31 and 37 are drafts of Public Health Direction 6, whereas Document 53 is a draft of Public Health Direction 7. Each of these documents is claimed to be exempt under section 30(1) internal working documents and under section 32(1) on the grounds of legal professional privilege.[82]
2. He submitted Ms Brady's evidence establishes, firstly, each document is a confidential document that was prepared by lawyers in COVID -19 Legal. Secondly, the documents impliedly carry legal advice as to the appropriate form at a particular time of the draft Public Health Directions, and thirdly, Document 23 includes comments from multiple contributors that (a) test whether COVID 19 Legal was properly translating the SSOT instructions, (b) request legal advice and (c) provide legal advice.[83]

1. I accept the evidence of Ms Brady and, from examining the document myself, see that Document 23 has multiple contributors including legal officers. The document has multiple comments throughout, and I accept the comments reflect requests for advice and the proffering of legal advice about the contents of Stay-at-Home Direction 6. The document itself contains highlighting, comments, and strike throughs.
2. I find this is a document that contains confidential communications in connection with giving or obtaining legal advice.
3. I find Document 23 is an exempt document on the ground of legal professional privilege. I do not consider whether it is exempt as an internal working document.

1. Document 31 is a draft of Stay at Home Direction 6. It does not have any notations such as Document 23 to indicate that the dominant purpose of the document was to obtain legal advice.
2. As Document 30 is the email trail that attached Document 31, it is logical to consider them together.
3. The email chain is between officers at the Department of Justice, Department of Premier and Cabinet and the Department of Health. One refers to a 'first rough cut' and 'urgent feedback please' which suggests the requesting of and provision of legal advice. The authors of the emails are the most senior lawyers in the Department of Health and Human Services and the Department of Premier and Cabinet.
4. I am satisfied Document 30 is a confidential communication between a client and its lawyers for the dominant purpose of obtaining and receiving legal advice.
5. I find Document 30 is an exempt document on the ground of legal professional privilege.
6. I refer to Ms Brady's evidence regarding Document 31, the Department's submissions and I have examined the document itself.
7. Document 30, which is the email chain considered above which attached Document 31, refers to the document as a 'clean final version.' The email chain provides the context that this was a confidential document prepared as a result of legal instructions and advice.
8. In the context of the covering email and the number of drafts being circulated for legal advice, I can impliedly find within the Document the legal advice being provided that the draft Public Health Direction Number 6 was in an appropriate form at that particular time.
9. I find Document 31 is an exempt document on the ground of legal professional privilege.

1. Document 37 is not marked as a draft, nor does it contain any of the notations that are on Document 23. I do not have the context of Document 36 which was the covering email, as this has been disclosed.
2. Document 37 does not contain any note or record of the 'opinions, advice and recommendations as to drafting parts of Direction 6' referred to by Ms Brady.
3. Nevertheless, I accept the submission from Mr Pizer SC I can imply legal advice to the 'effect that the draft Public Health Direction was in an appropriate form at that particular point in time.'[84]
4. I can imply this from the context of the number of iterations and emails reflecting the legal advice and drafting that was taking place at the time on 2 August 2020 and also from the fact this version is described by Ms Brady as 'a final or near final draft.'[85]
5. I find Document 37 is an exempt document on the ground of legal professional privilege.

1. I take into account Ms Brady's evidence, and I have examined the document.
2. The same considerations as applied for Documents 31 and 37 are relevant, although this Document is a draft of Stay at Home Direction 7.
3. In the same circumstances I am satisfied the document was a confidential communication between a client and lawyers for the dominant purpose of obtaining and providing legal advice.
4. I find Document 53 is an exempt document on the ground of legal professional privilege.

Section 50(4) the public interest override - section 30 and section 32

1. Part VI, Division 3 of the FOI Act deals with review by the Tribunal. Section 50(4) provides that:

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), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. Section 50(4), known as the 'public interest override', gives the Tribunal power to grant access to certain exempt documents where the public interest requires it, however this section does not apply to documents found to be exempt under section 28(1)(d). Section 50(4) is only engaged if the Tribunal forms to view the public interest requires access should be granted under the FOI Act.
2. The High Court in Osland v Secretary to the Department of Justice[86] stated:

...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.[87]

1. This is a question of fact. For documents 7, 22, 34 and 44, whereby exemption was sought under section 30(1), except for document 34, I have found them to be exempt. Section 50(4) only applies if the consideration of public interest is so strong so as to override those factors that confer the exemption in the first place.
2. There are no factors which outweigh my finding them exempt in the first place. In my view, following consideration of the documents, there is no imperative which requires disclosure of documents 7, 22 and 44 under section 50(4).
3. The public interest required to overcome the exempt status of documents under section 32, documents affecting legal proceedings, must be of the highest order.[88] Section 50(4) is only engaged if the Tribunal forms the view the public interest requires access should be granted under the FOI Act. As has been expressed by the High Court, 'legal professional privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.'[89]
4. I have found documents 46, 11, 13, 21, 33, 23, 31, 37 and 53 under section 32 to be exempt from release. There are no factors which outweigh my finding them exempt in the first place. There is no imperative nor public interest advanced requiring disclosure under section 50(4).

1. Section 28(1)(d) of the FOI Act (the cabinet documents exemption) relevantly provides that:

Cabinet documents

(1) A document is an exempt document if it is... -

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

1. A document is an exempt document under section 28(1)(d) if its disclosure would involve the disclosure of any deliberation or decision of the Cabinet, other than where such a document would disclose a decision of the Cabinet which was officially published.
2. 'Involve' has been interpreted as 'expanding, rather than narrowing, the reach of the exemption.'[90]
3. Redlich JA stated in Secretary to the Department of Infrastructure v Asher[91] ('Asher'):

The deliberative process involves the weighing up or evaluating of the competing arguments or considerations that may have a bearing upon Cabinet's course of action - its thinking processes - with a view to the making of a decision. It encompasses more than mere receipt of information in the Cabinet room for digestion by Cabinet ministers then or later.[92]

1. The question whether a document would disclose a deliberation of Cabinet depends on the terms of the document in question. In Asher Buchanan JA stated:

At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet's deliberations; the latter might say a great deal.[93]

1. Primary consideration is given to the terms of the document, and extrinsic material may be of assistance drawing a conclusion from the document.[94]
2. The public interest overside in section 50(4) does not have any application to section 28.
3. The Department submitted documents 23, 34 and 61 comprise documents that refer to the decisions of the CCC.

1. Mr Pizer SC noted three points about this exemption. Firstly, whether the disclosure of a document would involve the disclosure of a decision of Cabinet (or a committee or sub-committee) depends on the whole of the evidence, including the terms of the document itself.
2. Secondly, the word 'decision' means any conclusions as to the courses of action that the Cabinet adopts, whether conclusions on final strategy or as to the manner in which a matter is to proceed.
3. Thirdly the provision does not state the exemption applies if the disclosure of the document would itself disclose any decision of the Cabinet, rather it applies if disclosure of the document would involve disclosure of any decision of that kind.[95]
4. The Department submitted documents 23, 34 and 61 are exempt to the extent their disclosure would involve the disclosure of a decision of the Cabinet.
5. The evidence establishes the CCC was a sub-committee of the Cabinet, established on 3 April 2020, to be the core decision-making forum for the Victorian Government on all matters related to the coronavirus emergency including implementing the outcomes of the National Cabinet.
6. The department submitted a review of documents 23, 34 and 61, together with the evidence of Ms Brady, establishes disclosure of parts of those documents would 'involve' the disclosure of a decision of the CCC.

1. With respect to the documents for which the Department claimed the section 28(d) cabinet exemption, he submitted the genuine issue is who made the decision as the CCC does not make decisions under the PHW Act, it is the CHO or authorised officer who make the decisions. As Dr Romanes signed the document, he queried how the documents could relate to a decision of Cabinet when the decision is made by the Public Health Officer and Cabinet is not empowered to give a direction to the CHO.
2. Ms Davis gave the example in the Ombudsman's report which revealed the decision to close the public housing towers was made at very short notice and the Acting Chief Health officer said she was presented with the documents 15 minutes before the press conference. He stated: '... if that's the decision-making process, that is exactly the sort of concerns that motivated my FOI to understand how this decision had been made.'[96]
3. I refer to these submissions in my consideration of Documents 23 and 61.

1. I have already found Document 23 to be an exempt document under section 32 due to legal professional privilege. There are portions of Document 23 that the Department submit are exempt under section 28(d). The relevant parts of the document are comments on sections 7 and 10. These comments refer to decisions of the CCC.
2. I accept the CCC is a sub-committee of Cabinet. Having examined these comments on Document 23, I am satisfied that the commentary at section 7(1)(b)(A), 7(1)(l)(i) and 7(l)(l)(ii) is covered by Section 28(d) as it refers to a Cabinet agreement, which I take to mean a Cabinet decision. I am also satisfied the section 28(d) exemption applies to the commentary at sections 10(1), (e), (g) and (h), which makes mention of a cabinet decision.
3. The second part of section 28(1)(d) refers to 'other than a document by which a decision of the Cabinet was officially published.' There is no evidence that the decision was officially published.
4. I find Document 23 is an exempt document on the ground of being a Cabinet document.

1. Ms Brady in her first statement refers to Document 34 as an email exchange between the Public Health Commander Dr Romanes and the Chief Health Officer.[97] It is a frank and open deliberation and request for advice relevant to the making of Directions 6 and 7. In respect to the exemption under section 28(d) she states: 'The email would disclose discussions of Cabinet or a committee of Cabinet or matters that were the subject such discussions.'[98]
2. In her second statement she added:

In addition, it is clear from the face of Document 34 that its disclosure would disclose the content of briefings to the Crisis Council of Cabinet as well as discussions and a decision of that Cabinet subcommittee. That decision was not the decision to make Direction 6 or Direction 7. Those decisions were made by Dr Romanes and not by the Crisis Council of Cabinet.[99]

1. I note Mr Pizer SC submissions above [215] - [220].

1. As noted earlier, Mr Davis submitted key stakeholders were not consulted or informed until near the time the curfew was announced:

The genesis of this FOI request...arises not just from the [PHW Act], but from a desire to see and understand the decision-making process of the sole decision maker, the Chief Health Officer or their delegate, in this particular case, the Public Health Commander, Doctor Finn Romanes.[100]

1. He specifically noted the documents refer to an email exchange between Dr Romanes and the Chief Health Officer, and 'that is exactly the sort of discussion that... ought to be in the public domain because it would actually inform us to understand... how those points within the Public Health and Wellbeing Act were actioned.'[101]

1. I have previously decided this document was not exempt on the basis of section 30(1)(b) in that its release was not contrary to the public interest.
2. I now consider whether it falls within the exemption in section 28(1)(d).
3. I note Ms Brady states the decision of CCC in Document 34 is 'not the decision to make Direction 6 or Direction 7. Those decisions were made by Dr Romanes and not by the Crisis Council of Cabinet.'[102] Ms Brady also refers to the email disclosing the discussions of Cabinet or matters that were the subject of such discussion and the content of briefings as well as discussions and a decision.
4. On examination, the email from Dr Romanes, in effect, refers to Cabinet's aim, something not contained in material put to Cabinet and Cabinet's determination.
5. I turn to whether the disclosure of the email would involve the disclosure of any deliberation of the Cabinet.
6. In Asher Buchanan J found 'deliberation' refers to Cabinet's treatment of subject matter, and that it 'all depends on the terms of the document'.[103]
7. Whether the documents were prepared before or after the Cabinet meeting at which the deliberation or decision was made was not determinative. In this case the disputed document, the email exchange, was after the Cabinet meeting.
8. In this case the document in question has not been before Cabinet. It is an email exchange after the fact that Cabinet has met and made a decision that has been announced. The email exchange refers to a subject or topic that went before Cabinet and refers to something not contained in a Cabinet briefing. As it refers to a topic and something not in existence, no conclusions can be drawn as to it involving disclosure of a Cabinet deliberation. A reference to something not in a briefing cannot disclose the contents of a briefing. I am not of the view it involves the disclosure of any deliberation of Cabinet.
9. Turning to whether the disclosure of the email would involve the disclosure of a decision of the Cabinet, in my view the above references bring the document within section 28(1)(d) as a document disclosing the decision of the Cabinet that is in the public domain.
10. There are two references in Document 34 to the decision of Cabinet having 'been announced today'.
11. In Honeywood the Tribunal proceeded on the basis that release of a document would not 'disclose' a Cabinet decision if the information in that document has already been made public.[104]
12. In Ryan His Honour went on to state that the decision in that case included the decision that three study areas be identified as possible sites for hazardous waste but, as part of the decision was announced by the Minister for Major Projects on 12 November 2003, 'it can hardly be said that the disclosure of certificates of title concerning such sites or areas would disclose a decision of Cabinet.'[105]
13. It is in the public domain that Premier Andrews made the announcement regarding the curfew.
14. In my view, 28(1)(d) is satisfied in this case as the decision of Cabinet was officially published. The decision regarding the curfew was already made public by the Premier and the disputed document states that cabinet has 'formed the view and announced that view.' The disclosure of document 34 would not disclose a decision of the Cabinet because the decision was already made public.
15. The Department has not discharged its onus on the balance of probabilities that this document is exempt.
16. I find Document 34 is not an exempt document under section 28(1)(d).
17. The decision not to release Document 34 is set aside and substituted with a decision to release Document 34.

1. In her second statement Ms Brady refers to Document 61 as a document titled 'Attachment D - COVID Additional Directions, 2 August.' Section 28(1)(d) exemption is claimed over the words in a box on page 9 which specifically refer to a decision of the CCC.[106]
2. I have examined the text on page 9 of Document 61. It refers to a decision of the CCC. I am satisfied this meets the requirement of section 28(1)(d) as a decision of the Cabinet. There is no evidence this has been officially published.
3. I am satisfied the disputed text on page 9 in Document 61 is exempt under section 28(1)(d).
4. I find Document 61 is an exempt document on the ground of being a Cabinet document.

[1] Tribunal Order by Member R. Tang dated 16 July 2021.

[2] Respondent's Further Amended Schedule of exempt documents dated 22 December 2023.

[3] Tribunal Order by Senior Member J. Smithers dated 28 February 2022 under section 51A(3) of the VCAT Act.

[4] Re Moloney and Department of Human Services (2001) 18 VAR 238.

[5] Re Moloney and Department of Human Services (2001) 18 VAR 238, 245.

[6] Respondent's Further Amended Schedule of exempt documents dated 22 December 2023.

[7] Respondent's Final Submissions dated 26 March 2024 ('Respondent's Final Submissions') [50] -[56].

[8] Respondent's Legal Contentions in Reply dated 22 December 2023 (Respondent's Legal Contentions in Reply') [3]-[8], referring to Musso v Department of Justice [2004] VCAT 1268 [4]-[5] and Herald and Weekly Times Ltd v Victoria Police (Unreported, Victorian Civil and Administrative Tribunal, Macnamara DP, 15 November 2001).

[9] Respondent's Legal Contentions in Reply [7.2].

[10] Respondent's Legal Contentions in Reply [7.3].

[11] Applicant's Outline of Submissions dated 8 December 2022 [3] ('Applicant's submissions').

[20] Witness Statement of Nicole Susan Brady dated 10 October 2022, TB 22 ('First Witness Statement of Nicole Brady'). This statement includes references to documents which are no longer in dispute. Consequently, I have omitted references in the quotes to any of those documents.

[21] First Witness Statement of Nicole Brady [14], Tribunal Book (TB) 24.

[22] First Witness Statement of Nicole Brady [15], TB 24.

[23] First Witness Statement of Nicole Brady [17]-[20], TB 25.

[24] First Witness Statement of Nicole Brady [23]-[24], TB 25.

[25] Witness Statement of Nicole Susan Brady dated 22 December 2023, TB 55 ('Second Witness Statement of Nicole Brady'). This statement referred to document 36 which is no longer is dispute so reference to it has been omitted.

[26] This was the Witness Statement of Adjunct Clinical Professor Brett Sutton dated 2 February 2023 filed as part of VCAT proceeding Z606/2020.

[27] Second Witness Statement of Nicole Brady [15(a)], TB 59.

[28] Ms Brady adopted paragraphs [17]-[21] and [24]-[28] of the Witness Statement of Adjunct Clinical Professor Brett Sutton dated 2 February 2023.

[30] (County Court of Victoria, Lazarus J, 19 December 1983).

[31] Penhalluriack v Department of Labour and Industry (County Court of Victoria, Lazarus J, 19 December 1983) 29.

[32] Penhalluriack v Department of Labour and Industry (County Court of Victoria, Lazarus J, 19 December 1983) 29.

[33] Waterford v Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588, 606.

[34] FOI/Privacy Division (General) [2010] VCAT 282 ('Corry')

[36] (Review and Regulation) [2019] VCAT 2018.

[37] Tucker v Commissioner of State Revenue (Review and Regulation) [2019] VCAT 2018 [85], applying the principles of Judge Hampel in Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1889 [51]-[53].

[38] [2004] VCAT 1657 ('Honeywood').

[40] Second Witness Statement of Nicole Brady [36], TB 27.

[41] Respondent's Final Submissions [85]-[86].

[42] Respondent's Final Submissions [87]-[88].

[43] Respondent's Final Submissions [89], referring to [66]-[68].

[44] Respondent's Final Submissions [67].

[46] Mr Davis attached this Practice Note to his submissions and was at TB 145. I note the comment of SM Dea in Davis v Department of Health (Review and Regulation) [2023] VCAT 493 at [24] that this Practice Note is not policy which falls within section 57 of the VCAT Act 1998, but that she considered the content as relevant commentary, as do I.

[47] (General) [2011] VCAT 1889 ('Friends of Mallacoota').

[49] (General) [2008] VCAT 850.

[51] (Administrative Appeals Tribunal of Victoria, Member Preuss, 16 August 1995).

[55] Applicant's submissions [44]-[45].

[56] Davis v Department of Health [2023] VCAT 493 [78]

[57] Second Witness Statement of Nicole Brady

[58] Second Witness Statement of Nicole Brady [44]. Ms Brady made amendments to paragraphs [14], [44], [52] and [66] before tendering her statement to ensure both Directions No 6 and No 7 were referred to.

[59] Second Witness Statement of Nicole Brady [45].

[60] Respondent's Final Submissions [100].

[61] Re Anderton v Medical Practitioners Board (Unreported, Administrative Appeals Tribunal of Victoria, Macnamara DP, 14 June 1996).

[62] Friends of Mallacoota [51], quoting submissions Mr Pizer SC made in that case.

[63] [2005] VCAT 2509.

[64] (1985) 1 VAR 114.

[65] [2012] VCAT 1060.

[66] First Witness Statement of Nicole Brady [47], TB 29.

[67] Second Witness Statement of Nicole Brady [66], TB 69.

[68] Respondent's Final Submissions [116].

1. [69] Frugtniet v Legal Services Board (Review and Regulation) [2014] VCAT 1299 [32], referencing Nekvapil's Victorian Administrative Law at 2 - 3253.

[70] Respondent's Final Submissions [5].

[72] Respondent's Final Submissions [125].

[73] Second Witness Statement of Nicole Brady [35], TB 64.

[74] Respondent's Final submissions 26 March 2024 [53]

[75] Second Witness Statement of Nicole Brady [44], TB 65.

[76] Document 13 only has 'Appendix 2'.

[77] First Witness Statement of Nicole Brady [45], TB 28.

[78] First Witness Statement of Nicole Brady [54], TB 30.

[79] First Witness Statement of Nicole Brady [48], TB 29.

[80] Second Witness Statement of Nicole Brady [52], TB 46.

[81] Second Witness Statement of Nicole Brady [61], TB 48.

[82] Respondent's Final submissions [71].

[83] Respondent's Final submissions [73].

[84] Respondent's Final Submissions [73.2].

[85] Second Witness Statement of Nicole Brady [62], TB 48.

[86] [2010] HCA 24 ('Osland').

[88] DPP v Smith [1991] VicRp 6; [1991] 1 VR 63, 70-71.

[89] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 64 [35] (Gleeson CJ, Gaudron and Gummow JJ).

[90] Secretary to the Department of Infrastructure v Asher [2007] VSCA 272 ('Asher') [49].

[92] Asher [58] (footnotes omitted).

[93] Ascher [8] (footnotes omitted).

[94] Thomson Reuters, Victorian Administrative Law (at 6 May 2024) [FOI.28.140].

[95] Respondent's Final Submissions [46], [47], [48].

[97] First Witness Statement of Nicole Brady [49].

[98] First Witness Statement of Nicole Brady [51].

[99] Second Witness Statement of Nicole Brady [60].

[102] Second Witness Statement of Nicole Brady [60].

[106] Second Witness Statement of Nicole Brady [72].