Material provided to the Ombudsman by the agency

1. In a review by the Ombudsman the agency has the burden of establishing that its determination was justified.[3] This burden will usually not be satisfied by simply making claims corresponding with the wording in the Schedule. It will often require the agency to provide evidence in support of the factual basis for its claims. This evidence does not have to conform to the requirements of evidence given in courts or tribunals, but it should be clear, complete, accurate and reliably sourced. It may be necessary for evidence to be provided to the Ombudsman on a confidential basis. It may sometimes be helpful for an agency to distinguish between information provided as evidence and consequential submissions that are made based on that evidence.
2. In this case the way in which the agency attempted to justify its claims for exemption in the proceedings before the Ombudsman was initially inadequate. It was not until the agency responded to the RPD that the primary basis of the agency's claim for exemption (under clause 1 of the Schedule) was accurately articulated and relevant information communicated. The Ombudsman was critical of this fact in his determination.
3. The Ombudsman refers to the material provided by DPC under the general heading of "Submissions", but it has already been noted that the correspondence from DPC contained a combination of factual statements and consequential submissions. For example, the final letter from the agency specifically stated:

In support of its claims for exemptions, the Agency would like to bring the following matters to your attention.

1. Various factual matters are then stated, together with some consequential submissions. The letter was signed by an Executive Director of DPC. It would appear obvious that those factual matters were put forward by way of evidence.
2. Some of the factual claims made by the agency appear to be inconsistent with findings that the Ombudsman has made. Unfortunately, the Ombudsman has not indicated the basis upon which he has dealt with that apparent conflict. This is unfortunate. If the Ombudsman has not believed the claims or has not been satisfied by them, he should explain why.

1. It is not necessary to summarise those parts of the Ombudsman's Determination that are not relevant to the current proposed review. I will refer only to those parts of the Determination that are relevant to the clauses of the Schedule now relied upon by the applicant.
2. The Ombudsman made some important findings in paragraph 37 of his Determination:

The documents both appear to pre-date the Cabinet submission by approximately six weeks. Document 1 pre-dates the draft minutes by two days. Although document 2 is dated the same date as the draft minutes, it must have been prepared prior to the task force meeting for the Minister to have relied on it during the meeting.

1. The Ombudsman found that the documents did not fall within clause 1(1)(c) of the Schedule. That finding is not challenged on review.
2. With regard to clause 1(1)(f), the Ombudsman sets out some principles of interpretation in paragraphs [38] to [40] of his determination.
3. At paragraphs [47] to [50] he states as follows:

47. The documents were clearly prepared at a time when much was happening in the South Australian energy market.

48. Having regard to their contents, the documents both appear to have been created to address immediate issues and events unfolding by the end of July 2016, and not specifically for the Minister's use in relation to a matter submitted or proposed to be submitted to Cabinet. In saying this, I have had particular regard to the draft minutes (particularly item 1 on page 2), when the decision to defer the task force's scheduled agenda was made, the Cabinet submission, and the following parts of the documents:

Document 1

• The second and third dot points on the first page
• The first section on the second page
• The second and ninth dot points on the fourth page

• The first section on first and second pages
• The seventh dot point on the second page
• The final dot point on the final page

49. In addition, I note that the document schedule attached to DSD's notice of determination following internal review described document 2 as 'Chief executive's speaking notes', suggesting that it was created for the Chief Executive rather than the Minister. DPC did not claim otherwise in response to my revised provisional determination, stating only that document 2 was used by the Minister.

50. Accordingly, I am not satisfied that either of these documents is a briefing paper specifically prepared for the Minister in relation to a matter submitted, or proposed to be submitted to Cabinet

1. The Ombudsman then turns to a consideration of clause 1(1)(e). He accepts that the fact that the documents pre-date the Task Force meeting does not preclude the application of the clause. After referring to authority, he then comes to the following conclusion:

I am not satisfied that disclosure of the documents would disclose information concerning a deliberation or decision of Cabinet. In my view, it is not possible to draw any inferences about what may have been the subject of either the full Cabinet's or the task force's deliberations or decisions from the contents of the documents. I note also that the Cabinet submission was submitted for noting only, and does not appear to have required Cabinet to deliberate or make any decision about it.

1. Having heard the submissions of the parties, I am of the view that the applicant has identified reasonably arguable questions of law that are central to the determination of this matter. My reasons for that conclusion will appear below. I am also satisfied that the legal issues to be determined raise matters of importance and general significance. Appropriate protection of Cabinet documents is important and it is important that the relevant provisions of the Schedule be properly interpreted and applied. I grant permission to the applicant to bring this review.

1. The Ombudsman assumed, without deciding, that the Task Force was a "committee of Cabinet" for the purposes of clause 1(3) of the Schedule. For the purpose of deciding whether the Ombudsman has erred on a question of law, I will make the same assumption. If I find that such error has occurred, I will return to consider the status of the Task Force. This is an approach upon which the parties agreed, given that issues of additional evidence then arise.
2. For ease of reference I will use the term "Cabinet" in a way that incorporates a reference to the Task Force but will be more specific where clarity requires.

1. Clause 1 of the Schedule protects Cabinet documents under the heading of "Restricted Documents". Counsel for the applicant stressed the importance of the confidentiality of Cabinet documents. He stated that the public interest in such confidentiality is related to the principle of Cabinet solidarity as well as the desirability that frank discussion within Cabinet and in recommendations to Cabinet should not be impaired.
2. Clause 1 of the schedule was considered by the District Court in Rann v SA Water and Baker (No 2).[4] Brebner CJ stated:[5]

The confidentiality of Cabinet documents is a cornerstone of our system of government. In the Commonwealth of Australia v Northern Land Council & Anor [1993] HCA 24; (1992-93) 176 CLR 604, the High Court, comprising Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ, said (at p615):

"But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision that may be made. Although Cabinet deliberations are sometimes disclosed in politician memoires and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the collective responsibility, it remains an important element in our system of government. Moreover the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. ..."

1. The very strong public interest in protecting the deliberations of Cabinet has continued to be acknowledged and applied as directly relevant in the context of FOI legislation.[6] It is for these reasons that the legislature has provided significant protections for "Cabinet documents" in clause 1. Mr Wait submitted that clause 1 is intended to be much broader than the area covered by public interest immunity. He pointed out that clause 1(1)(a) extends to a document specifically prepared for submission to Cabinet even if it is never submitted. Mr Wait argued that there was an intention to protect not just the deliberations of Cabinet but also the "flow of information to Cabinet".
2. In the end, however, the protection afforded by clause 1 depends on the words of the clause, properly interpreted.

(f) if it is a briefing paper specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted to Cabinet

1. With respect to clause 1(1)(f), the Ombudsman made two findings in paragraph 48 of his Determination:

The documents both appear to have been created

(a) to address immediate issues and events unfolding by the end of July 2016; and

(b) not specifically for the Minister's use in relation to a matter submitted or proposed to be submitted to Cabinet.

1. The way in which the two findings are expressed in the one sentence suggests an implication that finding (a) leads to finding (b).
2. Finding (a) is unremarkable. The documents have clearly been created for the purpose outlined in (a). However, that says nothing about whether the issues referred to are to be addressed by a cabinet committee or whether the documents might have been created for that purpose. There is no logical basis for suggesting (in relation to the Task Force meeting) that finding (a) supports or leads to finding (b).
3. The findings (a) and (b) appeared in the same form in the Ombudsman's Revised Provisional Determination (RPD). The RPD was written at a time when the draft minutes of the Task Force meeting had not been provided, the date of the meeting had not been stated, and the relevance of the meeting had not been explained. In that RPD, the Ombudsman was clearly directing his attention to the submission of the matter to full Cabinet by means of the Cabinet submission dated 31 August 2016. In that context, the fact that the documents appeared "to have been created to address immediate issues and events unfolding by the end of July 2016" may well have suggested that they were not created for the purpose of the submission of the matter to Cabinet on 31 August 2016. When the Ombudsman was later provided with evidence about the Task Force meeting, however, he ought to have recognised that finding (a) no longer had any significance in supporting finding (b). Indeed, he ought to have recognised that the date of the Task Force meeting pointed to a finding directly contrary to finding (b).
4. Finding (b) is essentially a conclusion on the ultimate issue. It is a finding as to whether or not the documents are covered by the terms of the statutory provision. It is also expressed as a positive finding that the documents were not created for the stated purpose. It is not merely a finding that the agency has failed to satisfy the Ombudsman that the documents were created for the stated purpose.
5. In support of findings (a) and (b) the Ombudsman says he has had "particular regard" to various matters. The first two matters mentioned are:

(1) The draft Minutes (particularly item 1 on page 2); and;

(2) when the decision to defer the Task Force's scheduled agenda was made.

1. This evidence establishes that the Task Force agreed at the start of its meeting to defer its normal agenda to deal with this issue. The Ombudsman appears to assume that this point in the meeting was the first time that anyone had proposed that the Task Force would discuss the matter. Such an assumption is unfounded. It is virtually certain that it had been earlier agreed (or at least proposed) that the Task Force would consider the matter. The production of the speaking notes on the morning of the meeting makes that even more likely. Moreover, the agency had specifically stated in its factual submissions that the documents were both prepared for use at the Task Force meeting. The Ombudsman found that the notes were used by the Minister to address the meeting. The draft minutes contain no evidence that could support finding (b). They are totally consistent with the claim of the agency that the documents were prepared for the purposes of the Task Force meeting. The formality of deferring the normal business of the meeting (and the timing of that formality) is not of any relevance. The Ombudsman has based his finding on matters that have no evidentiary value.
2. I add that the Ombudsman also had regard to various dot points in the subject documents. Those references do not provide evidence that supports finding (b). Once again, those references first appeared in the RPD. As the details of the Task Force meeting were not before the Ombudsman when that RPD was written, the references may have been included to indicate the urgency of the issue dealt with in the documents. This would again support the suggestion that the documents were created to deal with events unfolding by the end of July 2016 and not in relation to a Cabinet submission prepared many weeks later. Once the Task Force evidence was provided, the Ombudsman ought to have recognised that any relevance of those references fell away.
3. In summary, the Ombudsman has based his finding that the documents were not created specifically for use in relation to a matter submitted or proposed to be submitted to Cabinet on considerations that have no evidentiary value. There was no evidence to support a positive finding that the documents were not created for use in relation to the Task Force meeting. Further, the Ombudsman has not explained how he has dealt with the contrary claim of the agency that the documents were created for such use. It is true that the agency has not stated precisely when the proposal to submit the matter to the Task Force was first made, but it has stated by implication that this was before Document 1 was created. If the Ombudsman was disposed to regard the agency's claims as to these central matters as unconvincing, he ought to have explained why. In any event, the better approach would have been to give the agency an opportunity to provide more specific information.
4. Put another way, the Ombudsman appears to have failed to give any real consideration to whether his provisional findings should have been amended following receipt of further information in response to the RPD. When that RPD was written, the Ombudsman was concentrating entirely on the alleged connection between the documents and the Cabinet submission dated 31 August 2018. A "Committee of Cabinet" had been mentioned in submissions but the relevance of that had not been explained. The Ombudsman knew nothing of the involvement of the Task Force or its meeting. The RPD simply did not consider any alleged connection between the documents and a meeting of a Cabinet committee.
5. In the final Determination, the crucial findings in relation to clause 1(1)(f) remain unchanged from what was written in the RPD dated 16 August 2017. A reference to the draft minutes has been added, but there is no acknowledgement that the information about the meeting of the Task Force completely changed the issues and circumstances to be considered. Findings which were relevant to the asserted connection between the documents and the Cabinet submission of 31 August 2016 appear to have been blindly and inappropriately adhered to and applied to an issue and circumstances that were entirely different.
6. The final Determination contains no reasoned consideration of the (essentially different) factual case under clause 1(1)(f) put forward by the agency in response to the RPD. The final Determination fails to address the agency's direct factual claim that the documents were prepared for use at the Task Force meeting or to explain why that claim has not been accepted. It fails to address the seemingly obvious inferences that arise from the respective timing of the documents and the meeting, suggesting that the documents were prepared for use at the meeting. In practical terms, the opportunity to make submissions in response to the RPD has been largely negated by a failure to approach the new factual information with a mind open to a full review of the provisional findings. Those findings have been simply adhered to without any apparent consideration of cogent evidence to the contrary. In my view, there has been a fundamental failure by the decision-maker at this stage of the process to properly engage in the task of fact-finding required by law.
7. Paragraph 49 of the final Determination states:

In addition, I note that the document schedule attached to DSD's notice of determination following internal review described document 2 as 'Chief Executive's Speaking notes', suggesting that it was created for the Chief executive rather than the Minister. DPC did not claim otherwise in response to my revised provisional determination, stating only that document 2 was 'used by' the Minister.

1. This finding is tainted by the errors that have been identified above. Once the Ombudsman had made a positive finding that Document 2 was not created for use in relation to the Task Force meeting, the way was open for him to find that it was not created for use by the Minister. If, however, it was created for use in relation to the Task Force meeting, there is a strong suggestion that it was created for the Minister's use. The Ombudsman would be well aware that senior public servants attend such meetings as observers to support the relevant Minister and that the provision of speaking notes would be one way in which such support is provided. The Ombudsman found, after all, that the Minister did use the notes in the meeting.
2. In light of the information provided to the Ombudsman in response to the RPD (and particularly the draft minutes and the confirmation that the Minister did use the speaking notes to address the meeting), the Ombudsman's ultimate conclusion in relation to clause 1(1)(f) cannot be supported, in my view. It can properly be described, in my view, as irrational, illogical or legally unreasonable.
3. Interesting arguments were put to the Tribunal as to the distinction between an error of law and an error (such as a wrong finding of primary fact) that did not qualify as an error of law. Much of this debate centred around the way in which the decision of the Full Court of the Federal Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 should be viewed in the context of the previous decision of the Full Court of the Supreme Court of this State in South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal and Anor. [2009] SASC 213; (2009) 105 SASR 1. The Supreme Court decision might suggest that some of the errors I have identified in relation to clause 1(1)(f), considered in isolation, might be regarded as mere errors of fact. Haritos emphasises the role of the review body in supervising the legality of the fact-finding process and perhaps suggests a trend towards a broader approach, at least in the administrative law area.
4. I resist the temptation to embark on a detailed analysis of the case law. Wherever the precise line is to be drawn, it is my view that an error on a question of law has been demonstrated in relation to the Ombudsman's consideration of clause 1(1)(f). As I have stated above, I consider that there has been a fundamental failure to carry out the fact-finding function required by law at the point where the Ombudsman made his final Determination. This is not a mere error of fact. It is a failure to conduct the proceedings according to law. I appreciate that this phrases the question of law somewhat differently from paragraph 1.6 of the applicant's Amended Grounds of Review. However, I consider that the errors identified by that ground are appropriately encapsulated in my characterisation of the matter. Furthermore, I have found that the Ombudsman came to a conclusion on the ultimate issue under clause 1(1)(f) that was not reasonably open to him on the basis of the evidence and his primary findings of fact. This error, in my view, is of the type referred to by Kourakis J (as he then was) in South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213; (2009) 105 SASR 1 when he referred to the decision in Vetter v Lake Macquarie City Council[7] as follows:

The issue in the latter case was whether the facts as found concerning a worker's travel after work came within the statutory words 'journey between the workers place of abode and place of employment'. Gleeson CJ, Gummow and Callinan JJ accepted, in accordance with earlier authority, that an unreasonable conclusion that the facts as found fall within or without the ordinary meaning of the statutory words is an error of law.[8]

a document is an exempt document-

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet

1. This clause is broader than the equivalent provisions currently existing in other Australian jurisdictions. It includes the words "information concerning any" which do not appear in other jurisdictions. They are important words.
2. In other jurisdictions, the test is whether disclosure will "disclose the deliberations or decisions" (of Cabinet). Case law in those jurisdictions must be understood accordingly. Clause 1(1)(e) poses a broader test. It is whether disclosure will disclose "information concerning any deliberation or decision of Cabinet."
3. In O'Connor v Leaw Pty Ltd (1994) 42 NSWLR 285 at page 303, Rolfe J stated:

'Concerning' has been defined as 'regarding', 'touching', 'in reference or relation to', and 'about'. It is, accordingly, a word of wide import...

1. It will be convenient to first discuss the position in other jurisdictions and then return to examine the different words of clause 1(1)(e).
2. Adopting citations collated by Tilmouth J in Department of State Development v Pisoni[9], the concept of "deliberation" has been described in other jurisdictions as relating to Cabinet's "thinking processes"[10], the content of discussions taking place in the Cabinet room[11], what Cabinet Ministers "had on their minds"[12], the content of Cabinet consideration with a view to making a decision[13], or "the disclosure of contents...concerning the process of deliberation or decision-making"[14].
3. It has been suggested that the concept of "deliberation" does not encompass material which is placed before Cabinet but is not actually considered or discussed by Cabinet. In Asher[15], Buchanan JA suggested that "deliberation" referred to Cabinet's "treatment of a subject-matter" rather than the subject matter itself.[16]
4. In the context of this case, those references provide sufficient guidance as to the interpretation of the word "deliberation" in clause 1(1)(e).
5. There has been disagreement in other jurisdictions as to whether a document which pre-dates a Cabinet meeting can disclose the deliberations of Cabinet. The weight of authority clearly establishes that it can.[17] That proposition should be accepted as correct as a matter of authority and logic.
6. I turn then to consider the effect of the additional words that appear in clause 1(1)(e). Firstly, they place beyond doubt the fact that a document pre-dating a Cabinet meeting may come within clause 1(1)(e) (Rann v SA Water and Baker (No 2) (1996) 187 LSJS 438, McGuirke v Director General, the Cabinet Office [2007] NSWADT 9). This latter case was decided under the now repealed Freedom of Information Act 1989 (NSW) which contained a provision equivalent to clause 1(1)(e). At [35] to [37] Judicial Member Montgomery discussed the relevant provision as follows:

In my view it is possible that a document that pre-dates a Cabinet meeting could still contain information that is "relevant to" or "about" the deliberative or decision-making process. I agree with the Cabinet Office's submission that documents created before a Cabinet meeting which are deliberated on during that Cabinet meeting may profoundly influence the course of any debate or discussion that takes place during that meeting and hence, any deliberations made during that meeting. For example, a Cabinet minute that contains a series of recommendations upon which Cabinet deliberates logically contains subject matter that is relevant to or about these deliberations. At very least, such a document "concerns" these deliberations because it helped shape the course of these deliberations. To the extent that any document is so central to a Cabinet meeting that it shapes the course of, or outcome of, any deliberations of Cabinet, the disclosure of its contents could reveal information concerning the process of deliberation or decision-making.

I also agree with the Cabinet Office's submission that a document such as a briefing note... could reveal the views of the Minister as submitted to Cabinet subsequently.

1. I would respectfully agree that briefing papers or speaking notes provided to a Minister before a meeting are likely to shape the Minister's contribution to the meeting and thus the course of deliberations at the meeting. This is so whether or not the documents themselves are distributed.
2. Even if it was accepted (contrary to the authority cited above) that a document pre-dating a Cabinet deliberation could not disclose the deliberation, such a document could obviously disclose "information concerning" the deliberation. This is the point made in both Rann and McGuirke. These cases illustrate how the inclusion of the additional words in clause 1(1)(e) significantly extend the reach of the clause. However, this is just one illustration of how they do so. Neither case suggests that the only effect of the additional words is to extend the scope of the clause to documents that pre-date the meeting. There is no basis, in my view, for restricting the operation of the additional words in this way. They are general words and should be given their ordinary meaning and effect.
3. Department of State Development v Pisoni [2017] SADC 34 was a case in which the Court found that there was no evidence to suggest that there was any relevant Cabinet deliberation or decision. Hence there was no scope for the application of clause 1(1)(e). However, the Court went on to make some obiter remarks about the additional words in that clause. At [17] it was acknowledged that the clause is "cast in wide terms" due to the inclusion of those words. However, at [19] it is suggested that the additional words are "directed towards" the "temporal proximity" issue dealt with in Rann's case and at [22]-[23] it is suggested that there is no reason to think that the additional words add anything to what appears in the Victorian Act other than in the way considered in Rann's case. As indicated above, I see no basis for that conclusion and I respectfully disagree with it. The effect of the additional words should not be restricted in that way.
4. The Court in Pisoni then proceeds at [25]-[27] to suggest that, "speaking generally, the protection [of the clause] is aimed at preventing the disclosure of documents that shed light on the decision-making process in Cabinet" and concludes that "...the exemption applies to the disclosure of the content of any deliberation or decision of the Cabinet". This is of course the test applicable under the Victorian provision as discussed in the case of Asher. It is not, in my view, the test under clause 1(1)(e). The test as stated in this passage from Pisoni does not acknowledge the significant difference which, in my view, is consequent upon the additional words in clause 1(1)(e).
5. It is to be noted that the Ombudsman in his Determination has quoted this passage in Pisoni immediately before coming to his conclusions concerning clause 1(1)(e). This raises the question, on my view of the proper interpretation of the clause, as to whether the Ombudsman understood and gave consideration to the full effect of the additional words.
6. Counsel for the applicant argued that the words "information concerning any" were sufficiently broad to embrace information about the practices, processes and procedures adopted in Cabinet deliberations, the persons present for such deliberations, the timing of deliberations and the like. I see no reason why that could not be so[18], but that point does not have to be decided in this case. Suffice it to say that the additional words in the local provision should be given their natural meaning.
7. Relevantly, there were two questions to be addressed in the application of clause 1(1)(e):

1. Has there been a relevant deliberation or decision of Cabinet?

1. If so, do the documents contain matter the disclosure of which would disclose information concerning that deliberation or decision?
2. As to the first question, the applicant no longer places reliance on the involvement of the full Cabinet as a result of the Cabinet submission dated 31 August 2016. It relies on the meeting of the Task Force.
3. There can be no doubt that the Task Force did have deliberations and made decisions about relevant issues.
4. In addressing the second question set out in paragraph 81 above (in relation to the meeting of the Task Force), I consider that the Ombudsman has fallen into error of law. He has proceeded on the erroneous basis that in answering the question he was only entitled to have regard to the contents of the documents themselves and not to other relevant evidence that connected the documents to the deliberations of the Task Force.
5. At paragraph 54 of the Determination the Ombudsman has quoted a passage from the case of Pisoni.[19] Whether or not such was intended, the passage could be understood as suggesting that it must be apparent "on the face of the subject documents" that disclosure would involve disclosure of deliberations or decisions of Cabinet. This is precisely what the reference to the judgement of Redlich JA in Asher's[20] case suggests.[21] I consider that the Ombudsman has adopted such an approach.
6. In making his critical finding on this issue, the Ombudsman says in paragraph 56 of his Determination (emphasis added):

In my view, it is not possible to draw any inferences about what may have been the subject of either the full Cabinet's or the task force's deliberations or decision-making from the contents of the documents.

1. This finding is the basis for his rejection of the clause 1(1)(e) objection.
2. I appreciate that the passage quoted at paragraph 86 above does not of itself necessarily indicate error. It is instructive, however that when the Ombudsman comes to consider the applicability of clause 1(1)(e) (at paragraphs 51-56), he makes no reference to any evidence other than the content of the documents.
3. Relevant facts to be considered in relation to the clause 1(1)(e) objection included the following:

(a) The briefing note was prepared and provided to the Minister on 11 July 2016.

(b) The briefing note provided certain facts, discussed the issues arising, and outlined options for consideration.

(c) The Task Force was due to meet on 13 July 2016.

(d) The Speaking notes were prepared and provided early on the morning of 13 July 2016.

(e) The Speaking notes provided certain facts, discussed the issues arising, and outlined options for consideration. They contained similar content to the Briefing note, but in an updated and summarised form.

(f) The Speaking notes were used almost immediately that morning by the Minister to address the relevant issue before the Task Force.[22]

(g) The Task Force deliberated on and made decisions about the issue.

(h) The draft minutes demonstrate the correlation between the content of the two documents and the way that the Task Force deliberations developed.

1. The obvious inference is that the contents of each of the two documents are likely to reveal information concerning the facts, views, options and recommendations put to the Task Force by the Minister and deliberated upon by the Task Force. The draft minutes confirm the correlation between the contents of the two documents and the Task Force deliberations.
2. Some of the matters listed were of course apparent on the face of the documents. However, the timing of the Task Force meeting was not, nor was the fact that the Minister used the speaking notes to address the meeting. The correlation between the content of the two documents and the content of the draft minutes was of course not apparent from the documents alone. It is these extrinsic matters which most clearly demonstrate the connection between the documents and the deliberations.
3. However, the Ombudsman does not refer at all, in the context of his consideration of clause 1(1)(e), to any of these matters. It is obvious that he thought he could not take them into account. He considered that he was limited to a consideration of what appeared on the face of the documents.
4. This, in my view, is an error of law. The Ombudsman has wrongly interpreted and applied the provisions of clause 1(1)(e). This error is identified as a question of law in paragraph 1 of the Grounds for Review. The respondent conceded that it is a question of law.
5. The identification of this error of law explains why the Ombudsman came to a conclusion in relation to the application of clause 1(1)(e) that would otherwise be completely inexplicable. Even if one refers only to the timing of events, it is impossible to resist the inference that the documents are likely to reveal the way in which the matter was presented to the Task Force by the Minister and the options considered and discussed by the Task Force. However, the Ombudsman has also found that the Minister used the speaking notes to address the Task Force and the draft minutes directly demonstrate that disclosure of the documents would disclose information concerning deliberations of the Task Force. On a correct interpretation of the law, that is the only available conclusion.
6. In my view, the correct approach to the issue before the Ombudsman was to ask whether, on the whole of the evidence before him (including any confidential evidence), disclosure of the documents would in fact disclose information concerning the deliberations of the Task Force. I do not consider that it matters whether the applicant (or other members of the public) would have enough information to "join the dots". Such a requirement does not appear to have been applied in the case law and, indeed, it would often be impossible of application.
7. Even if I am wrong about that, however, there were clearly sufficient facts available in this case for the connection to be made. The documents show that the Minister received the Briefing note on 11 July 2016. The note referred to urgent issues arising in respect of the energy market. It recommended that options be considered and made it clear that prompt action might be required. Two days later the Speaking notes were provided to the Chief Executive of the Minister's Department. They summarised and updated the Briefing note. The nature of the subject-matter of both documents was such that one would expect the matter to be discussed and decided by Cabinet, at least at a committee level. One would expect that the Minister would address the matter in Cabinet in the manner suggested by the documents. One would expect that the Cabinet deliberations would be shaped by the content of the documents. The evidence also demonstrates (and I deliberately describe this in very general terms) that the issue in question was to some extent the subject of public knowledge and so too were some limited aspects of the Government's response to it.
8. The evidence demonstrated that the matter was in fact the subject of deliberations by a Cabinet Task Force. The above facts, taken alone, were sufficient to demonstrate that the disclosure of the documents was likely to disclose information concerning those deliberations.
9. Furthermore, in his Provisional Determination dated 9 June 2017, the Ombudsman has revealed the claim of the agency that

Document 2 contains speaking notes used to address a committee of Cabinet on this particular issue and also contains options around a decision of Cabinet.[23]

1. The final Determination of the Ombudsman reveals the timing of the Task Force meeting (that could probably have been ascertained by other means in any event) and confirms that the Minister used the speaking notes to address the Task Force meeting[24]. In the face of all this information, a conclusion that disclosure of the documents would disclose information concerning the deliberations of the Task Force was inevitable. The Ombudsman's failure to make such a finding can only be explained by the error of law identified.
2. The words of clause 1(1)(e) should be given their natural meaning and effect. They do not require that any connection between the document and the deliberations or decisions of Cabinet must be apparent on the face of the document. The simple requirement is that, given the surrounding circumstances, the contents of a document do, as a matter of fact, disclose information concerning the deliberations or decisions of Cabinet.
3. Consider this example. A local heritage committee has responsibility for determining the name to be given to a new site. It invites residents to participate in a competition by suggesting possible names. Mrs Brown suggests in a letter that the property be named "Heritage House". The committee decides to name the property "Heritage House". However, the chosen name is to remain a secret until the opening ceremony. Mrs Brown is advised that she has won the competition. She is sworn to secrecy and invited to the opening ceremony. Mrs Brown tells her hairdresser that she has won the competition but does not reveal the name she proposed. It appears that news of Mrs Brown's win may have spread.
4. The contents of Mrs Brown's letter, considered in isolation, would reveal nothing about the decision of the Committee. The letter is no more than an entry containing a suggestion. However, considered together with the fact that Mrs Brown has won the competition, the letter would reveal the committee's decision. It cannot sensibly be contended that disclosure of the matter contained in the letter would not disclose information concerning the decision.
5. Clause 1(1)(e) should be interpreted accordingly. It would defeat the purpose of the clause to look merely at the contents of a document and ignore other information which connects that content to the deliberation or decision in question.
6. Mr Abbott gave an example of a note written on a beer coaster. He submitted that the note would not become protected because Cabinet was later shown to have discussed the same subject. I agree. The focus, as indicated previously, is on disclosure of the way in which Cabinet dealt with a matter rather than the mere topic discussed. There must be a demonstrated relevant connection between the document and the Cabinet deliberation before the document will be protected. I refer again to the discussion in McGuirke quoted at paragraph 74 above.
7. I return to the hypothetical example. In my view, it matters not whether Mrs Brown has revealed to others that she has won the competition. As soon as the decision is made by the Committee, the situation has arisen whereby disclosure of the letter would, as a matter of fact, disclose information concerning the decision of the committee. It matters not, in my view, whether it can be shown that others are aware of Mrs Brown's win or are in a position to "join the dots" that connect the letter to the decision. That is something that it may be quite impossible to ascertain with any certainty. Further, there can be no certainty that Mrs Brown's win will not be inadvertently revealed in some way in the period leading up to the ceremony.
8. Again, clause 1(1)(e) should be interpreted accordingly. It would seriously impair the effectiveness of the provision if the provision required proof that relevant factual information (connecting the document to the deliberation or decision) was in the public arena. One can imagine situations where snippets of information might be held by a variety of identified or unidentified persons. It will often be impossible for an agency or a decision-maker in an FOI case to know what information is "out there" and how that information could be collated to join the dots. Further, it will be impossible to know what relevant information may become available to members of the public. If the provision is to be successful in protecting the deliberations of Cabinet, it must be interpreted to avoid such difficulties. In my view, a document comes within the provision if the evidence before the FOI decision-maker (whether open or confidential) establishes the necessary link between the contents of the document and the deliberations or decisions of Cabinet.
9. In my view, the above comments are supported by authority. In Toomer, after reviewing the authorities, Deputy President Forgie stated (at [96]):

That is to say, the documents must be examined to determine whether they do in fact disclose deliberations or decisions of Cabinet. Whether they are prepared before or after the meeting of Cabinet at which they were discussed is not determinative of the issue. The whole of the evidence, of which the documents are only part, must be examined to make that determination.

1. The case of Rann v SA Water & Baker (No 2) (1996) 187 LSJS 441 concerned documents described as "reports related to market research with reference to 'privatisation of Adelaide's water supply and the attitudes of the general public to that possibility'". The agency had filed evidence by way of closed affidavits connecting the documents to a meeting of a subcommittee of a committee of Cabinet. An issue arose as to the process concerning possible receipt of that evidence and it was agreed that this would be addressed on assumed facts. On the assumed facts, the reports were provided to the sub-committee and actively discussed by the sub-committee. It was argued by the appellant that the documents could not reveal the deliberations of the sub-committee because they were prepared well before the relevant meeting, they had not been commissioned by the sub-committee and they were created for reasons other than the deliberations of the sub-committee. Brebner CJ concluded as follows:[26]

It is accepted for the purposes of this discussion that active discussion of the reports took place at the sub-committee. In this circumstance, I am satisfied that to provide access to the reports would be to provide access to the considerations, or at least some of the considerations that exercised the minds of the members of the sub-committee. Once that conclusion is reached it follows, in my opinion, that to give access to the reports would be to disclose information concerning the deliberations of the sub-committee. My opinion is that, on the assumed facts, the documents are exempt documents.

For these reasons, I conclude that there is a strong possibility that exempt matter may have to be produced to the Court before the hearing of these proceedings is finally concluded.

1. The purpose of the closed affidavits appears to be to demonstrate the connection between the documents and the deliberations at the meeting. Rann's case appears to me to demonstrate that such connection does not have to appear on the face of the documents and indeed that it may be demonstrated by evidence of matters not in the public domain.
2. The respondent placed reliance on the decision in Secretary, Department of Infrastructure v Asher [2007] VSCA 272. The documents in issue in that case were quarterly performance reports prepared by agencies across government. They were prepared for two purposes. The first was to enable the Department to make recommendations to the Minister of Finance and the Treasurer. The second was to provide information that the Department would use to prepare another 'whole of government' report to the ERC, a committee of Cabinet. The reports themselves did not suggest any connection to deliberations of the ERC. However, extrinsic evidence suggested that much of the content of the reports was repeated verbatim in the 'whole of government report' which was provided to the ERC. However the 'whole of government' report also contained a summary and analysis of the departmental data and recommendations. There was no evidence as to whether the ERC had ever discussed the information from the original reports. As Vincent JA stated, it was likely that any discussion would have concerned the 'whole of government' analysis and recommendations. In these circumstances, the Court concluded that the reports had not been shown to disclose any deliberations of the ERC.
3. In my view, the same result would have been reached under the broader provisions of clause 1(1)(e). It had not been shown that disclosure of the original reports would disclose any information concerning the deliberations of the ERC. The reports would reveal some factual material which was placed before the ERC (in a different document), but that material may never have been discussed or considered.
4. Asher's Case does not decide that regard cannot be had to extrinsic evidence connecting the document in question to a deliberation of cabinet. Buchanan JA[27] and Redlich JA[28] decided the case on the basis of an assumption that extrinsic evidence could be utilised. Vincent JA[29] quoted (without apparent dissent) the statement of Forgie DP in Toomer to the effect that:

the whole of the evidence, of which the documents are only part, must be examined to make [the] determination

1. Vincent JA continued with a reference to Re McKinnon and Secretary, Department of Health and Ageing[30] which was a case where the relevant connection between some of the exempted documents and the deliberation in Cabinet could only have been proved by extrinsic, confidential evidence.
2. It is true that the Court in Asher draws attention to the fact that the only material that connected the documents to any Cabinet meeting was the evidence put in support of the claimed exemption. However, that was in a context where the claimed connection was tenuous to say the least and there was no evidence that the ERC ever discussed or considered the material contained in the documents. In that situation, one can understand that the Court was vigilant to ensure that the protection not be abused. The situation is entirely different, in my view, where the extrinsic evidence demonstrates a direct and cogent connection between the document in question and the deliberations of Cabinet. In that situation, the acceptance of extrinsic evidence (and, in some cases, on a confidential basis) is plainly essential if the purposes of the exemption are to be achieved.
3. It follows that the applicant must succeed on a question of law. The Ombudsman has erred in his interpretation of clause 1(1)(e).
4. Furthermore, the conclusion is irresistible that these two documents must be found to fall within clause 1(1)(e) if the Task Force is a "committee of Cabinet" for the purposes of Clause 1(3). A contrary conclusion is irrational, illogical and not reasonably open on the evidence and the Ombudsman's primary findings of fact. I refer again to the passage quoted from the case of South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213; (2009) 105 SASR 1 at paragraph 64 above. It is an error of law to come to a conclusion on the ultimate issue that is legally unreasonable.
5. The applicant also argued that the Ombudsman erred in interpreting clause 1(1)(e) without proper regard to the additional words that distinguish it from legislation in other jurisdictions. I have referred to this issue at paragraphs 77-79 above. Given that I have already found error in the interpretation and application of clause 1(1)(e), it is not necessary to pursue this issue further.

1. Given my views as to clause 1, I do not intend to consider clause 9 in this Statement of Reasons.
2. However, I indicate that some difficulties were encountered in the hearing of this review due to the failure of the Ombudsman's Office to retain copies of web site material accessed and taken into account by the Ombudsman in the course of his external review. It is essential that a decision-maker retain (and provide to this Tribunal on review) all relevant evidence received as part of the consideration and determination of a matter.

1. It was agreed by the parties that, if the Tribunal found that an error of law had occurred in relation to clause 1 of the Schedule, it should then proceed to consider whether the Task Force was a committee of Cabinet for the purposes of clause 1(3). For this purpose, it was agreed that the Tribunal could proceed to consider the admission of further evidence, namely the Terms of Reference for the Task Force. I consider that it is appropriate to receive this document, given the way in which the Ombudsman had dealt with this issue (by way of assumption).
2. Counsel for the applicant advised me that the Concise Oxford Dictionary relevantly defines "committee" as

a body of persons appointed for a special function by, and usually out of, a usually larger body

1. I find that the Task Force is established in accordance with Cabinet Guide No 8 (the Guide). It is established by Cabinet, which is a larger body. It is established to assist in the conduct of Cabinet business in a particular area of activity.
2. The membership of the Task Force is comprised of a number of ministers. Membership is only open to members of Cabinet. Only members of the Task Force may participate in decision-making. Other persons may be invited to attend Task Force meetings, either on an ongoing basis or for selected items or meetings.
3. The guide draws a distinction between Cabinet Committees and Cabinet Task Forces. The difference is that Committees are ongoing whilst Task Forces are appointed for a specified period. Otherwise, the rules and processes governing both types of bodies are much the same. I do not consider that the difference in name can be determinative of the status of the body for the purposes of clause 1(3). Nor does the limited life span of the Task Force preclude it from being a committee of Cabinet for the purposes of Clause 1(3).
4. The Task Force has delegated authority from Cabinet to make decisions on behalf of Cabinet within prescribed areas.
5. Having regard to the Guide, the Terms of Reference and the information recorded in paragraph 20 of the Ombudsman's determination, I find that the Task Force is a committee of Cabinet for the purposes of clause 1(3).

1. My findings therefore lead to the conclusion that the Ombudsman has made errors of law in respect to his consideration of clauses 1(1)(e) and 1(1)(f).
2. I find that both Document 1 and Document 2 are exempt under clause 1(1)(e) and both documents are also exempt under clause 1(1)(f). I set aside the decision of the Ombudsman and substitute a decision affirming the decision made by the agency on the internal review.
3. To ensure clarity, I indicate that I have not received into evidence or had any regard to the three closed affidavits in coming to these conclusions. The only additional evidence I have received is the Terms of Reference of the Task Force.
4. Pursuant to s 40(8) of the Act, the applicant is ordered to pay the reasonable costs of the respondent.

[1] The Ombudsman referred to the Cabinet submission and its date in his provisional determination.

[2] Re AKS [2016] SACAT 19.

[4] (1996) 187 LSJS 438.

[6] Commonwealth v Construction, Forestry, Mining and Energy Union & Anor. [2000] FCA 453, National Tertiary Education Industry Union v Commonwealth & Anor. [2001] FCA 610; Toomer v Department of Agriculture, Fisheries, Forestry and Others [2003] AATA 1301; Spencer v Commonwealth & Anor. [2012] FCAFC 169.

[7] (2001) 202 CLR 439.

[8] At [57]. See also Kirumba v Walton (unreported, NSWCA, October 1990) as quoted in the applicant's Further Submissions at paragraph 16; Aronson and Groves, Judicial review of Administrative Action and Government Liability (6th Ed, 2016) [4.200].

[9] [2017] SADC 34 at [26].

[10] Re Toomer [2003] AATA 1301 at [96].

[11] Re Mildenhall (No 2) (1995) 8 VAR 478 at 488.

[12] Department of Infrastructure v Asher (2002) VCAT 499 [222]; Smith v Department of Sustainability [2006] VCAT 1228 at [23].

[13] Birrell v Department of Premier & Cabinet (No 3) (1987) 2 VAR 32 at [34].

[14] McGuirke v Director General, the Cabinet Office [2007] NSWADT 9.

[15] Department of Infrastructure v Asher [2007] VSCA 272 at [6].

[16] See also the review of the authorities in Toomer's case (supra).

[17] Commonwealth v Construction, Forestry, Mining and Energy Union & Anor. [2000] FCA 453, National Tertiary Education Industry Union v Commonwealth [2001] FCA 610; Re Toomer [2003] AATA 1301, Spencer v Commonwealth [2012] FCAFC 169; Department of Infrastructure v Asher (2002) VCAT 499.

[18] Cf. Spencer v Commonwealth [2012] FCAFC 169; (2012) 206 FCR 309 at [48].

[19] Department of State Development v Pisoni [2017] SADC 34 at [21].

[20] Department of Infrastructure v Asher (2002) VCAT 499 at [57].

[21] The quote from Redlich JA is in fact taken out of context. Redlich JA was merely stating as a fact, at [57], that there was nothing on the face of the documents in that case that would permit the conclusion that their disclosure would involve disclosure of any deliberation or decision of Cabinet. He was not stating that as the correct test to be applied. He was not determining the case on that basis. See below at paragraph 112 of these Reasons.

[25] See also McGuirke at [37], and Department of Prime Minister and Cabinet v Sanderson [2015] AATA 361.

[30] [2004] AATA 1126.