The Victorian Information Commissioner's decision dated 5 June 2020 is varied to provide that the document in dispute (document 12) is an exempt document under section 28(1)(ba) of the Freedom of Information Act 1982 (Vic).

1. In June 2019, Mr James Newbury, a member of the Victorian Legislative Assembly for the Brighton electorate, submitted a freedom of information (FOI) request to the Department of Premier and Cabinet (Department) for over 30 briefs prepared by the Department between 1 November 2018 and 31 January 2019 on a range of topics.[1]
2. Initially, the Department indicated an intention to refuse to process the request given there were anticipated to be over 1,000 pages of relevant material.[2] Mr Newbury agreed to focus on 15 briefs (excluding any attachments to those briefs).[3] This included brief 'B19/172, Initiatives to secure the viability of Victoria's TAFEs' (TAFE Brief), being a document of two pages.
3. On 18 November 2019, the Department issued its decision regarding the FOI request, granting partial access to nine documents and refusing access (in full) to nine documents, including the TAFE Brief.
4. Mr Newbury sought review of the Department's decision by the Victorian Information Commissioner (Information Commissioner) insofar as it related to the nine briefs to which access was denied. On 5 June 2020, after considering submissions from both parties, the Information Commissioner determined that some of the briefs were exempt under section 28 of the Freedom of Information Act 1982 (Vic) (FOI Act) (known as the cabinet documents exemption), but was not satisfied that any of the briefs (including the TAFE Brief) were exempt under section 30(1) of the FOI Act (known as the working documents exemption).[4]
5. On 19 June 2020, the Department applied for review of the Information Commissioner's decision under section 50(3D) of the FOI Act.[5] In its submissions filed on 7 September 2020 (Applicant's Submissions),[6] the Department clarified that it only sought review of the Information Commissioner's decision insofar as it relates to the TAFE Brief, which it (now) contends is exempt under the cabinet documents exemption.[7]
6. The Department relies on the evidence of Mr Tom Speirs, Director of the Education Branch within the Department, who was responsible for the preparation of the TAFE Brief. Mr Speirs made a witness statement,[8] which he adopted, and was cross-examined on, at the hearing.

1. Mr Speirs indicated that the purpose of the TAFE Brief was to seek approval from the Premier of Victoria (being the relevant Minister) to proceed with the development of a formal cabinet submission concerning initiatives to secure the viability of Victoria's TAFEs. However, an adviser within the Office of the Premier subsequently advised him that the 'actions proposed by [the Department] in the [TAFE Brief] had been overtaken by another process'.[9] As such, a cabinet submission has yet to be prepared, although initiatives to secure the viability of Victoria's TAFEs 'remains under development'.[10]
2. Broadly, the issue in this proceeding is whether the cabinet documents exemption is apt to apply to a briefing document prepared for a Minister to approve the future development of a cabinet submission where that does not in fact proceed.
3. Having regard to the authorities to which I was referred by the Department, and for the reasons set out below, I find that the cabinet documents exemption applies and vary the Information Commissioner's decision accordingly.
4. For completeness, it is noted that Mr Newbury's submissions raised concerns with respect to 'bad faith' or 'incompetence' on the part of the Department in only raising the cabinet documents exemption after the Information Commissioner's rejection of the working documents exemption.[11] However, as indicated in Chopra v Department of Education and Training, it is both 'common and acceptable' for an agency to change its reasons or grounds of refusal.[12] This reflects the fact that the Tribunal is considering the matter afresh (or de novo), and the parties are not limited to the grounds relied upon at earlier stages of the FOI process.[13]

1. Section 28 of the FOI Act provides that a document is an exempt document if it is:

(a) the official record of any deliberation or decision of the Cabinet;

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

(c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or

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

1. The exemption from the FOI Act of cabinet documents is clearly quite broad and extends to documents beyond those that are actually produced to and considered by Cabinet, including its committees.[14]
2. Relevantly to this proceeding, section 28(1)(ba) extends the exemption to include briefs prepared by departments and agencies for Ministers in respect of matters to be considered by Cabinet (or its committees). When section 28(1)(ba) was introduced, the then Attorney-General said in her second reading speech that:[15]

Under accepted principles of [Westminster] Government it is vital that the decision making processes of Cabinet be able to operate freely and without fear of premature or irresponsible disclosure.

In terms of freedom of information that means it must be absolutely beyond doubt that any Cabinet document exemption will provide complete protection from release of all documents connected with the deliberations of Cabinet.

1. The cabinet documents exemption has been considered by the Tribunal on a number of occasions, and it is well understood that there are two limbs to the exemption insofar as it relates to documents briefing a Minister in relation to cabinet matters, being that:
   • the document must be prepared for the purpose of briefing the Minister; and
   • the briefing must relate to an issue that was 'assessed objectively at the time the briefing occurred, an issue that was to be considered by Cabinet'.[16]
2. In relation to the first limb, the Tribunal has indicated that it is insufficient that a document is prepared simply for the purpose of 'placing [it] before a minister'; rather, to constitute a briefing, it should be a 'short, accurate summary of the details of a plan or operation' and which 'contains information or advice' which is to be read by, or explained to, a Minister.[17]

1. In relation to the second limb, the Tribunal has observed that it is the document's purpose at the time of preparation, and 'not its trajectory after preparation', that is relevant.[18] Thus, in Environment Victoria Inc v Department of Primary Industries (Environment Victoria), the Tribunal stated that it is not 'necessarily fatal that no decision has been formally made that [a given] matter would be taken to Cabinet', although recognising there may be cases where briefing documents have been prepared 'too early in the process' and in 'circumstances too uncertain' to fall within the section.[19] Further, in O'Brien v Department of Treasury and Finance - FOI Officer (O'Brien), the Tribunal observed that there is no requirement for a department or agent to prove 'some degree of certainty in the mind of those preparing the briefing that the issue on which the briefing is given will be considered by the Cabinet'.[20]
2. Relevantly, in Marple and Department of Agriculture (Marple), the Tribunal held that a briefing as to the 'means of bringing [an issue] before the Cabinet' relates to that issue, 'even though it does not canvass the substance of that issue'.[21]

1. As already noted, Mr Speirs is the Director of the Education Branch within the Department. In his witness statement, he explains that the TAFE Brief was:[22]

initiated and prepared by [the Department] to seek approval from the Premier for work to commence on developing a submission to Cabinet or a Cabinet Committee on a proposal to secure the viability of Victoria's TAFEs.

1. Mr Speirs goes on to confirm that while the TAFE Brief was 'not considered by the Premier', its content 'remains the subject of Cabinet consideration'.[23] In examination in chief, Mr Speirs confirmed that that continues to be the case.
2. In cross-examination, Mr Speirs clarified that:
   • He is the responsible executive for education policy within the Department and was not directed by anyone to prepare the TAFE Brief, although he 'would have discussed it' with Mr David Atkinson, the Executive Director to whom he reports and who is a co-signatory to the brief.
   • The TAFE Brief was prepared by his policy team.
   • The TAFE Brief envisaged a submission to be considered by the 'Social Policy Committee', which was (at the time) a properly constituted committee of Cabinet.
   • The TAFE Brief was signed off by a Deputy Secretary within the Department.[24]
   • If the TAFE Brief had been approved by the Premier, a further brief would have been prepared to seek the Premier's approval of the Cabinet submission envisaged by the TAFE Brief.
   • While it was 'hypothetically' possible that documents, which Mr Davis (who represented Mr Newbury at the hearing) referred to as 'potential or shadow submissions', could be cloaked with the cabinet documents exemption, that was neither the Department's practice nor the case in respect of the TAFE Brief. Mr Speirs emphasised that the role of the public service is to 'provide advice to government', and this includes recommending that 'matters be considered by Cabinet'.
   • It was 'uncommon' for a proposed Cabinet submission not to go forward, and that he 'cannot recall another case in the last 12 months'.

1. In closing submissions, Ms Symons (who appeared as counsel for the Department) submitted that the evidence establishes that the TAFE Brief was prepared for the Premier to seek approval for the proposals it contained to be put forward as a submission to Cabinet. If it had been approved, then it would have included at least some of the information from the TAFE Brief and would have been presented to the Social Policy Committee in 2019.
2. Ms Symons contends that it is clear from previous decisions of the Tribunal that the fact that the TAFE Brief has not yet resulted in a submission to Cabinet does not provide a basis to deny the exemption.
3. In his closing submissions, Mr Davis contended that 'junior bureaucrats' cannot just develop 'on spec' submissions to Ministers, on their own initiative, and 'attach' the cabinet documents exemption.
4. Mr Davis contends that there was an irregular approach to the production of the TAFE Brief, noting it was prepared without informing the Department Secretary and the Premier (being the relevant Minister) 'did not cause the submission to go to Cabinet'. He submitted that it is a 'bridge too far' to apply the cabinet documents exemption to documents which 'might be' considered by Cabinet (or its committees), and that to find otherwise would leave open the risk that, either 'deliberately' or as a result of bureaucratic 'enthusiasm', large amounts of material would be swept up by the exemption.
5. While recognising that the decision in Marple supports the application of the cabinet documents exemption to briefings about the process for making submissions to Cabinet, Mr Davis contends that the present case is distinguishable because the TAFE Brief was 'self-initiated' and, unlike the document considered in Marple, there was no substantive Cabinet process already underway.
6. In reply, Ms Symons submitted that section 28(1)(b) of the FOI Act is 'not circumscribed' in the manner for which Mr Davis argued. In particular, it does not specify a particular level within the bureaucracy from which Cabinet submissions must emanate.
7. Ms Symons says that Marples is not distinguishable, and the Department relies on that decision in support of the proposition that an extant Cabinet submission is not needed to enliven the exemption in section 28(1)(b). Rather, the cabinet documents exemption extends to a document prepared 'at the first step of the process that would lead to a Cabinet submission'.

1. While I appreciate the concern raised in Mr Newbury's submissions regarding the potential for abuse of the cabinet documents exemption if it could be applied to any briefing prepared by any departmental officer for a Minister, it does not warrant reading down the breadth of the exemption in section 28(1)(b) of the FOI Act in the manner for which he contends.
2. Consistent with the decision in Marple, I consider that the exemption can extend to a document, like the TAFE Brief, which is intended to brief a Minister as to the process for having an issue brought before Cabinet (or its committees).
3. I also agree, for the reasons discussed in Environment Victoria, that the failure to bring a document before Cabinet is not necessarily fatal.
4. When these principles are considered together, it is apparent the real issue is the purpose for which a given document was created, as assessed at the time of its creation. Further, that purpose is to be determined objectively, rather than by reference to the subjective purpose of its author.
5. If the evidence establishes that a document was prepared for the purpose of briefing a Minister in relation to issues to be considered by Cabinet, then the exemption applies, irrespective of what may subsequently transpire.
6. Conversely, if the evidence establishes that a document was prepared for some other purpose, the exemption would not apply. This might well be the case for any so-called 'shadow submission'.

1. In Environment Victoria, the relevant documents were found not to be exempt under section 28(1)(b). In that case, the briefing material was provided to a newly elected government which did not have an established policy on the relevant issue (coal allocation).[25] Although it seems that some of that material ultimately found its way into a Cabinet submission,[26] the documents themselves were prepared for a meeting with the Minister in circumstances where there was too much uncertainty as to the Minister's position on the proposed strategy to attract the exemption.[27]
2. In the present case, it is clear from the evidence of Mr Speirs that the TAFE Brief was prepared for the relevant purpose. I have read the document and it is evident, on its face, that it sought to provide advice to the Premier, in summary form, as to initiatives which could be taken to secure the viability of Victoria's TAFEs and to seek his approval for the development of a submission to be considered by the Social Policy Committee of Cabinet, which was anticipated to occur in 2019.
3. The evidence establishes that the TAFE Brief was prepared by a Departmental officer who was and continues to be responsible for the Department's education policy. The brief was signed off at a senior level, by a Deputy Secretary.
4. Further, although the initiatives that TAFE Brief canvasses have yet to be considered by Cabinet, Mr Speir's evidence makes it clear that the issues remain under active consideration, with a view to being put forward to Cabinet.
5. Having regard to the discussion above, I am satisfied that the cabinet document exemption applies to the TAFE Brief, and that the decision of the Information Commissioner should be varied to this extent. I will so order.

[1] FOI Request Details: Tribunal Book (TB), 8-9.

[2] Letter from the Department to Mr Newbury dated 2 July 2019: TB, 11-12.

[3] Email correspondence between the Department and Mr Newbury's office: TB, 13-16.

[4] Notice of Decision and Reasons for Decision dated 5 June 2020: TB, 50-71.

[5] Application for Review of a Decision dated 19 June 2020: TB, 72-75.

[8] Witness Statement of Tom Speirs dated 7 September 2020 (TSWS): TB, 77-133 (including attachments) (Exhibit A1).

[11] Respondent's Legal Contentions dated 21 September 2020 (RLC) [24].

[12] [2018] VCAT 841 [36].

[13] This can be contrasted to the position that applies in relation to state tax proceedings, where the Tribunal must grant leave for new grounds to be relied upon (Taxation Administration Act 1997 (Vic), s 109).

[14] FOI Act, s 28(7) defines 'Cabinet' to include committees of Cabinet.

[15] Mrs J Wade, as quoted in Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 (Hennessy) [19].

[17] Re Ryan v Department of Infrastructure (2004) 22 VAR 226; [2004] VCAT 2346 [41].

[18] Asher v Department of Premier and Cabinet [2008] VCAT 450 [22].

[19] [2013] VCAT 39 [40].

[20] [2016] VCAT 1282 [101] (Emphasis added).

[21] (1995) VAR 29, 51.

[24] Mr Davis debated whether Mr Speirs gave this evidence, however it is clear from Mr Speir's response to a question from Mr Davis during cross-examination (at 45.55 to 46.05 of the recording), and is supported by the TAFE Brief itself (which has been filed on a confidential basis with the Tribunal, as is usual in freedom of information proceedings).