Order that the Applicant have access to the Sentencing Review submitted by Prof. Arie Freiberg to the Attorney-General on 19 December 2000.

1. On 6 June 2000 the Attorney-General Mr Robert Hulls proposed a review of sentencing law. On 29 October 2000, he announced that the review would be conducted by Professor Ari Freiberg of the University of Melbourne. In the media release accompanying that announcement the Attorney is quoted as saying:

"We have to ensure that sentencing laws are in line with community expectations."

2. The release went on to say that it was expected that the report would be handed to the Attorney-General by the end of December.

3. It appears that Professor Freiberg carried out work on this review between the date of this announcement and December. On the 19 December he submitted his sentencing review to the Attorney-General. It is this document that is the subject of this application. I shall refer to it as "the review".

4. Mr Denis Hall the Director Legal Policy Division Department of Justice gave evidence before me. He referred to the review as "a draft discussion paper". I have had access to the review. It does not so describe itself. I will return to this topic later in these reasons.

5. According to Mr Hall, following the handing over of the review in December, a member of the Legal Policy Branch, Mr Stephen Farrow, was assigned to assist Professor Freiberg. They had assistance from other members of that branch. Mr Hall claims that this assistance was intended to help Professor Freiberg:

"in his further deliberations including its drafting and its presentation for release for public consultation and advice in relation to Government policy. Thus discussions occurred between Professor Freiberg and officers of the legal policy as to how best to develop the draft for release for public consultation."

6. It appears that part of those discussions was on the question of whether one document or a series of documents based upon the various subjects discussed in the review should be released. Eventually the decision was made that the review should be split into two discussion papers. The first covered sentencing issues generally and was released on 13 August 2001. The second discussion paper dealt specifically with drug courts and was released on 27 August 2001.

7. The intention was that following a period of public consultation, Professor Freiberg would present a final report to the Attorney with recommendations as to sentencing reform in this State. As I understand it, that period of public consultation is taking place at the moment. Professor Freiberg is receiving submissions and conducting public meetings with interested parties.

8. Mr Hall says that in relation to the preparation of the draft and discussion papers, the assistance from the Department was on an interactive basis on technical aspects of the review and policy issues. On 5 April 2001 the applicant Dr Robert Dean MLA, the Shadow Attorney-General, wrote to the Department of Justice requesting access under the Freedom of Information Act 1982 to "a copy of the report of the sentencing review conducted by Professor Ari Freiberg as submitted to the Attorney-General." By letter of 28 May the freedom of information officer of the Department of Justice, Mr Richard Kemp, denied access. In doing so he referred to s30(1) and relied upon the assertion that the document was a draft document the subject matter of which was then under consideration and that it would be contrary to the public interest to disclose its contents.

9. On 20 May 2001 the applicant sought internal review of that decision. This was conducted by Mr Hall. The earlier decision was confirmed upon the same grounds. Accordingly the applicant sought a review of that decision by this Tribunal. In this way the matter came before me.

Again the respondent relied upon s30(1) of the Act. It 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

10. In the course of discussion Dr Dean conceded that Professor Freiberg was an "officer" for the purposes of ss1(a) and that success in his application would "disclose matter in the nature of opinion, advice or recommendation". Thus he concedes that ss1(a) applies to the review. However his contention is that refusal of this application "would be contrary to the public interest" within the meaning of s30(1)(b). Thus the issue before me was the familiar one of an evaluation of the public interest in the release of the document. I will concentrate on this issue.

11. It was common ground that the respondent bears the onus of establishing that disclosure of this document would be "contrary to the public interest". It has provided specific grounds as to why disclosure would be contrary to the public interest and supported those grounds with the evidence of Mr Hall and the submissions of its counsel, Dr Karen Emerton.

12. There is a degree of overlap in the way the claim of public interest has been put before me but I will set out what I understand to be the contentions of the respondent. They are:-

(a) The draft report was prepared for the Attorney-General and Government generally. It was provided for consideration and feedback prior to Professor Freiberg settling the final paper or papers for release for public consultation.

(b) The report was commissioned as part of the Government's ongoing policy development concerning sentencing laws and practice.

(c) this was a preliminary draft report prepared by a professional adviser for the purposes of internal consultation and feedback. It is contrary to the public interest for such a report to be released, particularly now that the final discussion papers have been released and public consultation is taking place. In other words there is really no point in releasing the document when final discussion papers have already been released.

(d) Such a situation where discussion papers have been released into the public domain has the potential for mischief and the undermining of considered judgment. In normal circumstances an author is entitled to expect that only the discussion papers and his final reports would be released.

(e) Professor Freiberg does not support the release of the draft report.

(f) The release of a draft report may inhibit frankness and candour in the preparation of other reports.

(g) The release of this draft report would generate speculation as to why particular changes were made between the draft and the publicly released discussion papers. This would be unfruitful and potentially create mischief as there is the risk of mischievous interpretation.

(h) it might lead to confusion or unnecessary debate having regard to the possibilities of the foregoing.

(i) As a consequence of the above it might undermine confidence in the final report.

(j) Dr Emerton also put to me that the draft report contains statements that might be misconstrued as criticism of the judiciary. The point was that it was not helpful to have that potential for misconstruction.

13. To a greater or lesser extent Dr Dean responded to these points. He also made some of his own suggesting that there were sound reasons why it was in the public interest for this particular document to be in the public domain. In so far as I have found them helpful I will incorporate those responses in my own reaction to the points set out above.

14. Before doing so however I should refer to some of the authorities which have discussed the extent to which the release of draft documents or policy documents is inconsistent with the public interest. Obviously the issue of public interest in the context of this case has to be considered in the light of the exemption contemplated by s30(1).

15. I was referred to many of the decisions on this section. I wish to refer to one only It is Brog v Department of Premier and Cabinet; a decision of Deputy President Galvin 3 July 1989. In considering a similar submission to that made in this case at page 209 Galvin DP said:-

"he (Mr O'Bryan counsel for the respondent) maintains that the relevant cases support a conclusion that preliminary draft reports which are ultimately published in final form are exempt under s30 because they threaten to undermine public confidence in the final report and open the way for mischievous selective resort to material by the media and others...I do not take the cases cited to be authority for the proposition that a draft is necessarily exempt because all drafts of their nature are exempt. The Tribunal must look at every document individually in order to assess its exempt status. It is reasonable to conclude no more from the authorities than that there is a likelihood of exemption in such cases....Mr Tracey (counsel for the applicant) maintains that it is a matter of public interest that certain changes in the final report from the disputed draft are without explanation. However, it is not necessarily the case that the reasons for a particular change ought to be disclosed in the published document. A final report for public consumption is not necessarily a document appropriate for explanations as to the verification and alteration of material in drafts which preceded it. There being no evidence as to the reasons for most of the variations in this case, it is not appropriate for the Tribunal to speculate upon them and to assume the likelihood of inappropriate reasons. It is in the nature of preliminary drafts that they are reviewed and polished - corrected by alteration substitution and addition. That is not necessarily a cause for public concern. It may be so if the changes appear to be unjustified or perverse."

16. I understand the attitude set out in these passages. Under the head of "internal working documents" s30 gives specific consideration to the disclosure of documents that come into the existence for the purpose of providing "opinion advice or recommendation" to 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".

17. In many instances such documents will be of the type referred to by Galvin DP. They come into existence as a working document which is intended to be a basis for review and reflection. They may not reflect a concluded opinion, even a tentative concluded opinion. They may be intended to do no more than promote discussion. However, once a final form is achieved then such documents could no longer be described as "internal working documents". Nor would they then still have the protection envisaged by s30(1).

18. As I have stated the document currently in issue came into existence when the Attorney sought the assistance of an acknowledged expert in the field who is an academic with an appointment at Melbourne University. The contention that the report that he provided in December 2000 was to be no more than a "draft discussion paper" as claimed by Mr Hall in his witness statement is not apparent from the media release of the Attorney at the time of Professor Freiberg's engagement in October 2000. Nor it is apparent from the report itself. I have of course had access to the report and my views on its category or classification have been influenced by my perusal of it and a comparison of its contents with those of the discussion papers released in August.

19. There is simply nothing about the document submitted by Professor Freiberg in December 2000 that is consistent with the claim now being made of it. That claim is that it is no more than a draft discussion paper that was intended to be the subject of advice, representation and revision prior to being released for public consultation some months later. On the introductory page of the review Professor Freiberg said "this document is put forward as a discussion paper for the purposes of consultation." Later he said "any person or organisation wishing to make a submission to the review on this document or the terms of reference generally are encouraged to do so."

20. In my opinion it is reasonably clear that Professor Freiberg assumed that the document he was submitting in December 2000 would be released for the purposes of discussion. Accordingly it does not readily fit into the category of documents that were expected to be "reviewed and polished - corrected by alteration substitution and addition" to employ the words used by Galvin DP in Brog. Clearly Professor Freiberg anticipated that his proposals would be widely discussed but he did not then anticipate that the review itself would be recast before being released for public discussion.

21. Accordingly, contrary to the contentions of the respondent set out in its claim of public interest, it is far from clear that the review was delivered for the purposes of consideration and feedback prior to Professor Freiberg settling the final discussion paper.

22. Having compared the two documents, I regard the proposition that release has the potential for mischief and the undermining of considered judgment as far fetched. It is claimed that the author is entitled to expect that only the discussion papers and his final report would be released. I am doubtful of that. It is surprising that the only material before me suggesting that Professor Freiberg does not support the release of the review is a claim to that effect set out in the respondent's statement of legal contentions.

23. It is notable that Professor Freiberg did not give evidence and nor did Mr Hall claim that he was aware of Professor Freiberg's state of mind. In the absence of even hearsay evidence, I am not persuaded that Professor Freiberg does not support the release of the review. Accordingly I do not act upon the contention that he would be entitled to expect that only the discussion papers and his final report would be released. I am not persuaded that this is his expectation, or his wish, in this case.

24. It has also been argued that a comparison between the documents would disclose the ways in which legal policy division had an influence on Professor Freiberg. My inspection of the documents is not consistent with this contention. I simply do not accept that a comparison between the two would disclose issues advocated by that division that were not accepted by Professor Freiberg. It was made perfectly clear by Mr Hall that Professor Freiberg was the author of and took responsibility of the documents as released. The Department of Justice had an input into the course of events but what appears in the discussion papers that have been released represent Professor Freiberg's tentative views on the matter. There is nothing in them that he does not support, at least at this stage.

25. As to the claim that there are portions of the December report that might be construed as criticism of the judiciary, all I can say is that this was not apparent to me upon my reading of the review. In any event it would have only marginal effect on the public interest. It is a matter of common knowledge that much of the public discussion of sentencing policy includes criticism of the judiciary. Its existence or otherwise in this report is not in my view a ground for maintaining the exemption. The issue cannot be quarantined from public debate on sentencing policy. It would, in my view, be artificial to attempt to do so.

26. I will discuss some of the other ways in which it has been claimed that the public interest requires refusal of this request. In my opinion there is no reason to think that the release of this document would discourage or inhibit frankness and candour in the preparation of other reports. As long ago as 1985 the then President of the Administrative Appeals Tribunal, Judge Rowlands, held that it would not be contrary to the public interest to disclose a report. On the topic of frankness and candour he quoted from an earlier decision in the Federal Administrative Appeals Tribunal of Murtagh v Federal Commissioner of Taxation [1984] AATA 249; 1984 54 ALR 313 at 326. In that case the Court had said:-

"the candour and frankness argument is not new. It achieved pre-eminence at one time but now has been largely limited to high level decision making and to policy making. No cogent evidence has been given to this Tribunal either in this review, or so far as we are aware, in any other, that the enactment of the FOI Act 1982 has led to an inappropriate lack of candour between officers of the department or to a deterioration in the quality of work performed by officers."

27. Subsequent decisions of this Tribunal including re Marple v Department of Agriculture (1995) 9 VAR 29 and Bracks v Department of State Development 10 September 1996 have been to the same effect. The passage of time since those decisions must underline the point there made, which is to the effect that the concern that frankness and candour will be lost by reason of the risk of disclosure remains unsupported by any evidence. I have already observed that in this case Professor Freiberg clearly anticipated that the review would in its original form would be released for public discussion.

28. Here the position is a little unusual in that a final discussion paper has now been released. It is suggested that there is really no point in releasing the review now that the final discussion paper is already in the public arena. In my opinion this is beside the point. The presumption is that documents will be able to be released unless it is demonstrated that to do so is not in the public interest. The fact that there may be "no point" in releasing the document is not the same thing as saying that it is not in the public interest to release it. Release may achieve nothing but it ought not be refused because of an expectation that nothing will be achieved by it.

29. It may well be that there will be some comparison between the review and the discussion papers. Again it may well be that the applicant will speculate as to why particular changes were made. Perhaps such speculation would be unfruitful but I regard the risk of mischievous interpretation as remote.

30. It follows that in my opinion the reasons advanced for the contention that release of this document would be against the public interest do not have the weight for which Dr Emerton argued. The application for review must be allowed. Dr Dean is entitled to the order that he seeks ie. access to the document set out in his request of 5 April 2001.