This decision considers the scope of a review under s 40(1) of the FOI Act, and the interpretation of exemption clauses 1(1)(e) and 9 in Schedule 1 of the FOI Act.

• A SACAT review under section 40(1) of the FOI Act is limited to a consideration of questions of law and ss 34(3), (4) & (5) of the SACAT Act are not operative until the questions have been answered and an error has been disclosed in the Ombudsman's reasoning.
• The Tribunal is authorised to determine questions that are mixed fact and law questions in addition to questions of pure law under s 40(1a) of the FOI Act.
• Clause 1(1)(e) is directed at protecting Cabinet's decision-making process and not the subject matter of the process. However, revelation of the subject matter may expose the process.
• The words of clause 1(1)(e) do not impute a requirement of any sufficiency or proximity of the relationship between the information in a document proposed for release and a deliberation or decision of Cabinet.
• The word 'disclose' in clause 1(1)(e) means revelation for the first time. If the information, though not necessarily the document, is within the public domain, release of the document may not constitute disclosure of the information.
• The Ombudsman's factual finding that the information within a document is within the public domain is a finding that cannot be impugned in a section 40(1) review.
• If an error in reasoning has not been demonstrated, the Ombudsman's factual finding that there is insufficient evidence that a deliberation or decision of Cabinet has occurred, cannot be disturbed in a section 40(1) review.
• In respect of clause 9, the failure to take into consideration a relevant factor or the consideration of an irrelevant factor may constitute an error of law. The weight attributed to particular factors by the Ombudsman is beyond the scope of a section 40(1) review.
• It is open in some cases to group documents when assessing the public interest criteria in clause 9, although, caution must be exercised to give appropriate operation to the focus that the FOI Act places upon individual documents.
• The Ombudsman's determination is varied and documents 4-7 are not exempt by virtue of the application of clause 1(1)(e).

Administrative Review - Freedom of Information Act 1991 - Agency aggrieved by determination of the Ombudsman - whether a document is an exempt document - Interpretation of clause 1(1)(e)

Administrative Review - Freedom of Information Act 1991 - Agency aggrieved by determination of the Ombudsman - whether a document is an exempt document - Public interest considerations

South Australian Civil and Administrative Tribunal Act 2013 ss 3, 8, 10, 14, 19, 26, 34, 37, 38, 39

Freedom of Information Act 1991 ss 19, 40

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Re AKS [2016] SACAT 19

Martin v Valuer-General [2020] SACAT 104

Pyman v Valuer-General [2016] SACAT 1

Minster for Education & Child Development v Chapman [2013] SADC 130

Department of the Premier and Cabinet v Thomas [2014] SADC 56

Osland v Secretary of Department of Justice (2010) 241 CLR 320; [2010] HCA 24

Haritos & Anor v Commissioner of Taxation (2015) 322 ALR 254; [2015] FCAFC 92

P v Child Support Registrar [2013] FCA 1312

Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551

Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199

Repatriation Commission v Owens (1996) 70 ALJR 904; 187 CLR 704

Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56

National Parks Association of New South Wales Inc v Department of Lands and Anor [2005] NSWADT 124

Department of State Development v Pisoni [2017] SADC 34

Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17; [2007] VSCA 272

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

Toomer v Department of Agriculture, Fisheries, Forestry and Others [2003] AATA 1301

Rann v SA Water & Baker (No 2) (1996) 187 LSJS 441

Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588

Re Burchill & Department of Industrial Relations [1991] AATA 70; (1991) 23 ALD 97

Re Boehm & Department of Industry, Technology and Commerce (1985) 7 ALN N186

Re Lianos and Secretary to the Department of Social Security [1985] AATA 38

Re Howard and the Treasurer of the Commonwealth (1985) 7 ALD 626; [1985] AATA 100

McKinnon v Secretary, Department of Treasury [2005] FCAFC 142

Attorney-General for the State of South Australia v Seven Network (Operations) Ltd [2019] SASCFC 36

Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (SA) (1997) 192 LSJS 54

Ms D Seal and Ms A Haines, Crown Solicitor's Office, for the applicant

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(b)

Overview of events leading to these proceedings

1. This decision entails an exercise of the Tribunal's jurisdiction conferred under s 40 of the Freedom of Information Act 1991 ("the FOI Act") to review a decision of the Ombudsman.
2. The respondent in these proceedings is Mr Stephen Mullighan MP. On 21 June 2019, he made an application to the Department of Treasury and Finance under the FOI Act for:

all minutes, briefings, notes, documents, emails and correspondence between the Department of Treasury and Finance and the Department of Planning, Transport and Infrastructure regarding the Port Dock Railing Line (Date range: 20/3/2018 - 21/6/2019).

1. The applicant in these proceedings is the Department of Treasury and Finance. It did not respond to Mr Mullighan MP in the timeframe required by the FOI Act. This had the effect of a deemed refusal to the application.[1] The deemed refusal gave Mr Mullighan MP the right to seek a review by the Ombudsman. He exercised that right. During the Ombudsman's review, the Department identified various documents that were within the scope of the application and put its position to the Ombudsman that 29 of them were exempt documents and as such, were not required to be provided to the respondent.
2. The Ombudsman made a determination in respect of the review dated 8 October 2020. The effect of the Ombudsman's determination was that the Ombudsman upheld the Department's arguments and determined that some of the documents were exempt, but he disagreed with the Department in other respects and determined that several of the documents were not exempt, or only exempt in part.
3. Following the Ombudsman's determination, the Department brought these proceedings, being a review of the Ombudsman's determination.
4. The focus of these proceedings is the status of 9 documents relating to the subject-matter of the application. It is convenient to refer to those documents by the numbers allocated to them in the Ombudsman's review process. The documents that remain in dispute are 1, 3, 4, 5, 6, 7, 9, 12 and 20.
5. The Ombudsman determined that 7 of these documents (1, 3, 4, 5, 6, 7 and 9) were not exempt at all and that 2 of the documents (12 and 20) were only partly exempt. The applicant says that all 9 documents are wholly exempt on one or more grounds of exemption under the FOI Act.

A note about the documents in the Tribunal's possession

1. The Ombudsman filed a book of documents with the Tribunal as required under the South Australian Civil and Administrative Tribunal Act 2013 ("the SACAT Act"). The Tribunal has copies of the material that was before the Ombudsman when the decision was made. The parties only have some of these documents. The documents that the applicant has that the respondent, Mr Mullighan, does not have are the documents sought under the application and the applicant's submissions to the Ombudsman about the status of those documents. The agency does not have Mr Mullighan's application and other submissions made by him to the Ombudsman. Much of what the respondent can glean about the documents he seeks and the agency's position is derived from the Ombudsman's description or summary of them in the Ombudsman's provisional, and then final, determination.
2. The respondent's counsel, Mr Jacobi, requested that the parties, or at least the agency in the first instance, should as a matter of procedural fairness be made aware of the materials provided by the Ombudsman to the Tribunal. However, the request was refused. The scheme of the FOI Act and SACAT Act read together with the SACAT Rules describes the documents that the Ombudsman is to provide to the Tribunal in the event of a review and the documents that are to be produced to the parties and those that remain with the Tribunal but are not produced to the parties. The Tribunal acknowledges the difficulties that face both the parties, but particularly the respondent, in the proceedings by virtue of the necessary circumstance that each does not have access to everything that the Tribunal has to make this decision.
3. Further, in order to not undermine the scheme of the FOI Act, both the Ombudsman and the Tribunal must issue decisions about the documents in a manner that seeks to explain with tolerable comprehensibility the reasons for the decisions that are made, without disclosing the documents or their content to the respondent.
4. In addition to the materials before the Ombudsman, the Tribunal had the benefit of written submissions from both parties and oral submissions at a hearing of the proceedings.

1. A preliminary issue for determination is the scope and nature of the Tribunal's function where an agency seeks to challenge the decision of the Ombudsman under the FOI Act. There is no dispute that the Department is an 'agency' within the meaning of the FOI Act. The parties were in dispute as to whether the agency's application had been brought in a manner that was contemplated by the scheme that is established by the FOI Act and the SACAT Act read together. In particular, the respondent argued that the agency's challenge sought to have matters decided that are outside the scope of its right of review which is limited to questions of law.
2. Section 40 of the FOI Act confers rights of review upon the parties to a freedom of information determination that has been made under that Act. Relevantly, a person who is aggrieved by a determination of an agency following an internal review may apply to the Ombudsman for a review of the determination. For the purposes of the Act, a determination includes a deemed refusal.[2] Where a party is dissatisfied with the outcome of the Ombudsman's review, s 40 provides for a review undertaken by SACAT as follows:

40 - Reviews by SACAT

(1) An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of SACAT, apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT.

(1a) However, the review may only be as to a question of law and that question must be referred to a Presidential member of the Tribunal under section 26 of the South Australian Civil and Administrative Tribunal Act 2013.

(2) A person (other than an agency) -

(a) who is aggrieved by a determination of an agency following an internal review; or

(b) who is aggrieved by a determination that is not subject to internal review; or

(c) who is aggrieved by a determination made on a review under Division 1,

may apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT.

(3) Proceedings under this section must be commenced by an agency or person within 30 days after notice of the determination to which the proceedings relate is given to the agency or person or, in the case of a person who was not given notice of the determination, within 30 days after the determination.

(4) (not relevant to these proceedings)

(5) (not relevant to these proceedings)

(6) (not relevant to these proceedings)

(7) If, in proceedings under this section -

(a) SACAT is advised that the determination of the agency was made on grounds of the public interest; and

(b) the Minister administering this Act makes known to SACAT the Minister's assessment of what the public interest requires in the circumstances of the case subject to the review,

SACAT must, in determining the review, uphold that assessment unless satisfied that there are cogent reasons for not doing so.

(8) In proceedings under this section -

(a) in the case of proceedings commenced by an agency - SACAT must order that the agency pay the other party's reasonable costs; or

(b) in any other case - SACAT must not make an order requiring a party to pay any costs of an agency unless SACAT is satisfied that the party acted unreasonably, frivolously or vexatiously in the bringing or conduct of the proceedings.

1. As the agency brought the application to SACAT, sections 40(1) and 40(1a) of the FOI Act were engaged, providing a right of review under s 34 on the limited basis that the review "may only be as to a question of law". The respondent contended that the applicant's grounds of review were not expressed in a manner such as to enable the Tribunal to dispose of the review. Without conceding the issue, the applicant availed itself of an opportunity to re-express the grounds. Even after this was done, the respondent maintained that a number of grounds had not been expressed as questions of law as contemplated by the scheme.
2. As far as the Tribunal is aware, the FOI Act is the only Act in the South Australian statute book that creates a scheme of review in this way. Whilst numerous Acts confer a right on a party to a review of a decision of a Government agency on SACAT utilising the machinery established by s 34 of the SACAT Act, the FOI Act is the only Act which creates a scheme whereby that right of review is limited to a question of law.
3. The scheme is problematic.
4. Section 34 of the SACAT Act makes no provision for reviews to be confined to questions of law. To the contrary, s 34 provides for the review jurisdiction to be undertaken by way of an examination of the decision-maker "by way of rehearing". Section 34 provides as follows:

34 - Decisions within review jurisdiction

(1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction.

(2) For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is -

(a) a decision made by the Crown or an agency or instrumentality of the Crown; or

(b) a decision made by a prescribed person or body; or

(c) a prescribed decision or class of decision,

but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations.

(2a) For the purposes of this Act -

(a) unless paragraph (b) applies - the decision‑maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision;

(b) the rules may provide -

(i) that the decision‑maker for a reviewable decision will, instead of being the person or body under paragraph (a), be a person or body that is assigned by the rules as being a suitable entity to act as the decision‑maker for the purposes of this Act (or specified provisions of this Act); or

(ii) that a reference to the decision‑maker for a reviewable decision in this Act (or specified provisions of this Act) will be taken to include a reference to a person or body that is designated by the rules as being a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act),

and rules made under this paragraph will then have effect in accordance with their terms.

(3) Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision‑maker by way of rehearing.

(4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision‑maker.

(5) A procedure on a rehearing will include -

(a) an examination of the evidence or material before the decision‑maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and

(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.

(6) In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act.

(7) Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.

1. The FOI Act is a "relevant Act" as referred to in s 34.[3]
2. A review under s 34 may lead to one of the various outcomes set out under s 37, namely to affirm, vary, or set aside and substitute, a decision under review. There is also a power to invite the decision-maker to reconsider the decision: s 38.
3. It is evident from s 34 and the cases that have examined it,[4] that unless the review jurisdiction is modified by a "relevant Act", a review will occur by way of an examination of the evidence that was before the original decision-maker and the consideration of any further evidence or material that the Tribunal decides should be admitted. However, s 34 makes clear that the Tribunal must exercise its jurisdiction in accordance with the SACAT Act and the relevant Act. Further, s 34(7) provides that the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.
4. A review under ss 34-38 inclusive does not lend itself easily to being confined to a question of law. The way in which the scheme operates draws upon the fact that the review jurisdiction may be modified by a relevant Act. In this case, the FOI Act modifies the right of review by invoking s 26 of the SACAT Act. Section 26 provides as follows:

26 - Determination of questions of law

(1) The member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may refer a question of law to a Presidential member of the Tribunal.

(2) If a question of law is referred under this section -

(a) the question is decided by the Tribunal according to the opinion of the Presidential member of the Tribunal; or

(b) the Presidential member may refer the question to the Court of Appeal for determination.

(3) If a Presidential member of the Tribunal decides a question of law under subsection (2), the Presidential member may, in addition -

(a) decide any other questions remaining between the parties; and

(b) make such orders that are necessary to dispose of the matter.

1. Section 40(1a) of the FOI Act provides that the review to be undertaken may only be as to a question of law on a referral to a Presidential member under s 26 of the SACAT Act.
2. Section 26 must be understood within its context. The Tribunal has ordinary, senior and Presidential members. The Presidential members are the President and any Deputy Presidents appointed under ss 10 and 14 of the SACAT Act. Ordinary and senior members may or may not be legally qualified.[5] The President is a judicial officer and a Deputy President, if not a judicial officer, is a person eligible to be appointed as a judge of the District Court. Section 26 provides a mechanism by which a member of the Tribunal may refer to a Presidential member, a question of law. The use of the referral mechanism contemplates that there are proceedings in the Tribunal within which a question of law has arisen and requires determination. A referral might be expected to occur in a broader range of circumstances than a referral in a court or tribunal in which legal qualifications are a prerequisite for appointment.
3. Section 26(2) provides the Presidential member, to whom a question of law is referred, with two options. The first is to decide the question of law, and the second is to refer the question to the Court of Appeal for determination. In a tribunal to which a vast array of jurisdiction is conferred, s 26(2) contemplates, by the provision of these two options, that the range of questions of law may be very broad. On the one hand, a non-legally qualified member may refer to a Presidential member for determination a question of law that a legally qualified member might determine without considering it necessary to refer. That is not to say that a legally qualified member is not expected to ever make a referral. A legally qualified member might do so where, for example, a novel question arises or where there is conflicting authority. The legislation also contemplates in s 26(2)(b) that a Presidential member may, in some circumstances, refer a question to the Court of Appeal for determination. It might be expected that this would occur in relatively unusual cases carrying such significance or of such complexity that it is appropriate to have the view of the Court of Appeal.
4. The usual use of s 26 will be to assist the Tribunal to proceed to adjudicate a dispute or make an order by having some doubt about a legal question determined. That will only occur where proceedings are on foot and the question is required to arise on the facts. After answering the question of law, s 26 allows the Presidential member to refer the matter back to the referrer or proceed to determine residual issues in dispute upon the provision of answers to the questions of law proposed.
5. Though slightly different language is used, s 26 has a counterpart in s 72 of the SACAT Act which authorises a Presidential member to "reserve any question of law arising in any proceedings (including on referral to the Presidential member) for determination by the Court of Appeal". The Court of Appeal is empowered by s 72(2) to "determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case".
6. In the context of the scheme established by the FOI Act, the mechanism in s 26 is put to a different use, namely to describe the limits on a right of review and the manner in which it is undertaken. Some effect must be given to the words in s 40 that require the question to be referred "under s 26 of the SACAT Act". It would have been possible (and perhaps desirable) to require reviews to be determined by Presidential members without invoking the s 26 mechanism.
7. What is apparent is that whereas the "question of law" within s 40 describes the entire scope of the review, the referral of a question of law under s 26 is better understood as a mechanism for resolving a discrete aspect arising in proceedings. Section 26 contemplates that on commencement, proceedings are assigned to a member of the Tribunal to adjudicate, and a need for a referral of a question may arise during the proceedings. It is difficult to give work to the concept of referral if the review is wholly described by (subject to s 26(3)) the question of law.
8. The resolution of this tension is assisted by reference to the history of the scheme. The FOI Act was amended in 2014 shortly after establishment of the Tribunal by the SACAT Act. The effect of the amendments was to transfer jurisdiction to determine external reviews in FOI matters from the District Court to SACAT. The amendments were assented to but not given operation at that time. SACAT's establishing legislation had been passed but the Tribunal did not open until March 2015. The FOI amendments were not given operation until December 2016 whereupon SACAT assumed the jurisdiction from the District Court subject to transitional provisions not relevant to these proceedings. Prior to that transfer, appeals under s 40 from a decision of the Ombudsman were determined by the District Court in its Administrative and Disciplinary Division. The Court had from time to time described its jurisdiction in a manner that took a wide view of what constitutes a question of law. For example, in Minster for Education & Child Development v Chapman[6] the District Court in finding that its jurisdiction had been enlivened, said:

... the question of whether the Ombudsman was empowered under the FOI Act to unilaterally permit an applicant to amend a request to a form of request for documents that has not been considered by the agency is a question of law as to whether, in the role fulfilled by the Ombudsman, there is a power under the statute to legally make that decision. And the question of the operation of subparagraph 20(1)(a), ss20(4) Schedule 12(1) FOI Act and s52X CPA and whether the particular facts of this matter are within the operation of those provisions and if so how, involves the interpretation of one or other or both of these statutes and is a question of law.

(my emphasis)

1. By way of a further example, in May 2014, the District Court granted permission to an agency to proceed with an application for review in Department of the Premier and Cabinet v Thomas[7] and accepted the following characterisation of the questions of law it was required to determine:[8]

The Department of Premier and Cabinet's asserted questions of law and associated grounds of appeal are;

Question of Law 1

In respect of clause 11 of schedule 1 of the Freedom of Information Act 1991:

1.1 is the purpose of clause 11(b) limited to ensuring the smooth functioning of courts and tribunals is not compromised and that neither party to a dispute is given an unfair advantage?

1.2 does the phrase "prepared for the purpose of proceedings" in clause 11(b) extend to communications concerning preparation for and possible settlement of court or tribunal proceedings?

1.3 does the meaning of "prepared for the purpose of proceedings" properly construed make the documents the subject of the appeal exempt pursuant to clause 11(b)?

1.4 is the "innocuous" or other content of the documents a relevant consideration for the purpose of clause 11(b)?

Ground

The Ombudsman in determining the applicability of the exemption in clause 11 of schedule 1 of the Freedom of Information Act 1991 to the documents:

1.1 erred in adopting a purposive interpretation of clause 11(b) that limited the purpose of clause 11(b) to ensuring the smooth functioning of courts and tribunals is not compromised, and to ensuring neither party to a dispute is given an unfair advantage;

1.2 erred in construing the meaning of "prepared for the purposes of proceedings" within clause 11(b) as not extending to communications concerning preparation for and possible settlement of court or tribunal proceedings;

1.3 in the alternative to 1.1 and 1.2, erred in applying the meaning of "prepared for the purpose of proceedings" properly construed, to the documents the subject of the appeal;

1.4 had regard to an irrelevant consideration, being a finding that he content of some of the documents was "innocuous".

Question of Law 2

In determining the applicability of clause 9 of schedule 1 of the Freedom of Information Act 1991:

2.1 is a finding that release of the documents would not inhibit the candour, capacity and capability of the agency to provide information, views and advice so unreasonable or irrational that no reasonable or rational decision maker could have made it?

2.2 is finding that release of the documents would not impact on the agency's capacity to deal with employment disputes so unreasonable or irrational that no reasonable or rational decision maker could have made it?

2.3 is a finding that the documents did not reveal general strategies for dealing with employment disputes so unreasonable or irrational that no reasonable or rational decision maker could have made it?

2.4 is finding that the documents did not reveal general strategies for dealing with employment disputes an irrelevant consideration for the purpose of determining whether release would be contrary to the public interest?

2.5 is a conclusion that release of the documents would not be contrary to the public interest so unreasonable or irrational that no reasonable or rational decision maker could have made it?

Ground

The Ombudsman in determining the applicability of clause 9 of schedule 1 of the Freedom of Information Act 1991 to the documents:

2.1 unreasonably or irrationally found that release of the documents would not inhibit the candour, capacity and capability of the agency to provide information, views and advice;

2.2 unreasonably or irrationally found that release of the documents would not impact on the agency's capacity to deal with employment disputes;

2.3 unreasonably or irrationally found that the documents did not reveal general strategies for dealing with employment disputes;

2.4 erroneously had regard to an irrelevant consideration, being a finding that the documents did not reveal general strategies for dealing with employment issues.

2.5 as a consequence of 2.1, 2.2, 2.3 and/or 2.4, unreasonably or irrationally concluded that release of the documents would not be contrary to the public interest.

In my view, the Department's submission that the appeal raises questions of law, are well founded. Questions 1.1 and 1.2 are concerned with the purpose and scope of the expression "prepared for the purposes of proceedings" in clause 11(b) in schedule 1. That is a question of law. Question 1.3 concerns the application of that same expression to the documents the subject of the proposed appeal. That, too, is a question of law. Question 4 contains the Ombudsman's taking into account an allegedly irrelevant factor. That, again, raises an issue of an error of law.

Questions 2.1 to 2.4 are all concerned with the reasonableness of the Ombudsman's application of the public interest test. That is a question of law.

Question 2.5 raises another question of law; do the Ombudsman's conclusions fall outside the range of conclusions that were reasonably open to him?

Because those questions of law raise issues of general significance about the purpose, scope and application of clause 11(b) of schedule 1 and about the application of the "public interest" test in clause 9 of the schedule, I grant permission to appeal.

(footnotes omitted)

1. The above passage represents the style of question and grounds that the applicant in the current proceedings replicated for its revised application.
2. The High Court's decision in respect of an appeal confined to a question of law in a freedom of information proceeding under the Commonwealth legislation in Osland v Secretary of Department of Justice[9] in 2010 countenanced questions of law framed in the manner of a mixed fact and law question defining the scope of the appeal rather than as questions as they may be put within proceedings in the manner of a question to assist a trial decision-maker's task.
3. Against that background, the Attorney-General in his second reading speech in respect of the Bill that sought to confer jurisdiction on the Tribunal on 18 June 2014 said that the purpose of the amendments was that "the Tribunal assume the function of the District Court under sections 40(1) and (2) of the FOI Act".[10] There was no suggestion that the attachment of the right of review to s 26 of the SACAT Act was intended to alter the scope of the right of review.
4. Taking all these matters into consideration, namely the words of the relevant provisions and the history following which the scheme was created, it is possible to reach a construction of the scope of the right of review. The scheme establishes that the proceedings are brought under s 34 of the SACAT Act. Section 34 describes a merits review process with features similar to a de novo review except that, pursuant to s 34(4), the Tribunal must have regard to, and give appropriate weight to, the decision of the original decision-maker. The review entails an examination of the evidence or material before the original decision-maker and a consideration of any further evidence or material that the Tribunal admits. However, in the circumstances of a challenge to a decision by an agency under the FOI Act, that review is constrained by s 40 of the FOI Act and in particular limits the review to a question of law. In order to give work to do to the provisions of the scheme, I consider that the effect of the provisions when read together is that ss 34(3), (4) and (5) are not operative when the agency challenges a decision, at least in the initial stage of the review.
5. It remains to be considered how the phrase "only as to a question of law" should be construed. On this issue, the parties each referred me to the consideration by the Full Court of the Federal Court of what is meant by a "question of law" in Haritos & Anor v Commissioner of Taxation ('Haritos').[11] The Court, constituted of five members, considered what was intended by the constraint on the challenge to a decision of the Administrative Appeals Tribunal ("AAT") to the Federal Court where that challenge was limited to a "question of law". The challenge considered by the Full Court related to an appeal from a merits review by the AAT to a court exercising appellate jurisdiction. The terms of the right to appeal in s 44 in the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") is expressed as an "appeal ... on a question of law".
6. In the exercise of that appellate jurisdiction conferred on the Federal Court, there is provision for a variety of circumstances in which the Court may make findings of fact. These include the making of findings that are not inconsistent with the findings of fact made by the Tribunal (other than findings made by the Tribunal as a result of an error of law) if the Court determines that it is appropriate to make findings of fact it may have regard to the evidence given in the proceedings before the Tribunal and may receive further evidence.[12]
7. The Court in Haritos stated that the court or tribunal exercising such jurisdiction must be understood to have authority to decide whether a notice of appeal states a question of law and does so with sufficient precision, and may proceed to determine the substance even where the question of law is not properly articulated.[13] The Court made the following observations regarding an appeal on a question of law:[14]

It is of great importance that the question or questions of law should be stated with precision ... In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

1. The Court also endorsed the words of Wigney J in P v Child Support Registrar[15] that "a question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regards to the context in which it appears".[16]
2. In Haritos, the question of whether mixed questions of fact and law stand within or outside of s 44 was described as a key controversy.[17] The Court endorsed an approach that recognised that "the scope, purpose and subject matter of the statute may affect the construction of the words "question of law""[18] and that the terms, context, history, authority and purpose of the provision were relevant. A further consideration is the nature of the tribunal from which an appeal on a question of law lies.[19] The Court also considered that it was relevant to the construction of the phrase "appeal ... on a question of law" that the conferral of jurisdiction to determine questions of law was not constrained by words such as "only" or "pure".[20] The Court found that in relation to s 44, such inquiries led to the conclusion that some mixed questions of law and fact were within jurisdiction but that the right of appeal did not extend to "mere questions of fact".[21]
3. There are some immediately apparent differences between the regime considered in Haritos and the regime under the FOI Act.
4. Firstly, what was under consideration in Haritos was a constraint on the scope of a court's appellate function in respect of a decision of a merits review tribunal. That is somewhat different from the consideration of a constraint on the scope of a review function by a tribunal of a statutory officer. The Court in Haritos was mindful of the High Court's emphasis in Osland,[22] that the court vested with the jurisdiction of an appeal on a question of law "should not usurp the fact finding function of the [tribunal]". The Court went on to say that it followed that a right of appeal does not extend to mixed questions of fact and law where in order to decide the question of law the court must positively determine a question of fact itself rather than judicially review the AAT's fact finding. The Court concluded that legally erroneous fact finding may found an appeal on a question of law within s 44.
5. The Court in Haritos followed the approach of the High Court in Owens[23] that the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with in the original forum. That reasoning has less significance where the Tribunal is conferred jurisdiction to conduct a merits review.
6. Secondly, the phrase "question of law" in the AAT Act arises separately in respect of referrals of questions of law within proceedings on the one hand, and appeals on questions of law on the other. The scheme of the FOI Act and SACAT Act, however, seeks to direct the review into the mechanism for referring a question of law.
7. Thirdly, under the FOI Act, the review may be only as to a question of law. The failure to constrain the appeal by the use of a word such as "pure" or "only" was considered significant by the Court in Haritos in its construction of the scope of the appeal mechanism.
8. Finally and perhaps most significantly, the "scope, purpose and subject matter of the statute" is different as between the AAT Act on the one hand, and the scheme of the SACAT Act and the FOI Act on the other.
9. Having regard to the objects of SACAT and in particular that set out in s 8 that provides that one of the main objectives of the Tribunal is to "ensure that applications are processed and resolved as quickly as possible while achieving a just outcome"[24] and "to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit",[25] I consider that the Court's statement in Haritos that although questions of law are not to be distilled from the grounds of appeal, consideration of whether jurisdiction has been enlivened should "not be reduced to semantics at the expense of substance", is a paramount principle.
10. When one looks to the history of the provisions in the SA context, as the Court did in Haritos to discern the intent and purpose of the right of appeal in the AAT Act, and apply that task to the FOI Act, it can be seen that the words "only as to a question of law" have been carried through from the previous regime which entailed an appeal to the District Court. However, as has been previously noted, the existing provisions have now been attached to the SACAT Act and in particular to the review provisions of the Tribunal, which operates differently from those of the District Court, and in particular the new regime links the question of law to the mechanism for determination of questions of law in s 26 of the SACAT Act. There is no basis, however, to be derived from the Second Reading Speech, to indicate that the mechanism of attaching the resolution of the review to s 26 was intended to materially alter the way in which the review was determined. The minimal focus on that issue suggests the opposite.
11. Having considered the history of the provision, the authorities and the wording of the scheme, the preferable construction is one that authorises the Tribunal to determine questions that are mixed fact and law questions in addition to questions of pure law. Given that proceedings under the FOI Act will so often contain an evaluative element, such as a determination of reasonableness, or a finding of where the public interest lies, or whether procedural fairness has been afforded, it is difficult to discern a basis upon which the legislature might have intended otherwise. It is consistent with the linking of these reviews to the Tribunal's review jurisdiction that mixed questions of law and fact should be answered.
12. Following consideration of the questions of law, the Tribunal may proceed to re-determine the application where the answers establish that errors have occurred, including by receipt of further evidence if necessary. I note that this is consistent with the approach taken by the Tribunal in Department of the Premier and Cabinet v van Holst Pellekaan ('Pellekaan').[26]
13. It is also appropriate for the Tribunal, in pursuit of its obligation to determine proceedings on their substantive merits,[27] to identify and answer questions of law that can reasonably be discerned from those put by an agency on review.

1. Having determined the scope of the review, it is possible to consider the questions as they were put by the agency to determine whether each identifies a question of law, or whether such a question properly arises from the substance of the complaint.
2. The applicant posed a number of questions bearing on the proper construction of clause 1(1)(e) of Schedule 1 of the FOI Act. That clause provides that a document is an exempt document "if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet". The questions put by the applicant were:

Did the Ombudsman err in his construction and application of clause 1(1)(e) of Schedule 1 of the FOI Act by:

Concluding that the "information" must reveal the 'thinking processes of Cabinet' or disclose matters specifically deliberated on or specific decisions made by Cabinet in order to attract the application of that clause in respect of the relevant documents?

Concluding that the relevant documents must 'relate to' a specifically identified decision or deliberation of cabinet (and not the proceedings of Cabinet generally)?

Concluding that the "information" must be 'sufficiently substantial' in order to attract the operation of the clause in respect of documents 1 and 3?

Concluding that for information to fall within the clause it cannot otherwise be publicly available in any context or form in respect of documents 1 and 3?

Concluding that a document will not contain information that would fall within the clause unless the document or the specific information in it was placed before Cabinet?

Did the Ombudsman take into account an irrelevant consideration in determining whether documents 1, and 3 are exempt pursuant to clause 1(1)(e) of Schedule 1 of the FOI Act, in considering whether information that has been presented to Cabinet is otherwise publicly available?

Did the Ombudsman fail to take into account a relevant consideration in determining whether the relevant documents are exempt pursuant to clause 1(1)(e) of Schedule 1 of the FOI Act, by failing to have regard to the circumstances and purpose for which the documents were created.

1. Consistent with the earlier analysis, I consider that the applicant's challenge raises issues of law, but that it is not necessary to answer them in the manner that would usually be undertaken if they were questions of law referred under s 26 during a proceeding, in order to inform the decision-maker and the parties as to the applicable legal principles by which a dispute may be resolved.
2. I consider that having raised the issues as questions of law, it is convenient and of assistance to the parties for the Tribunal to dispose of the questions directed at the Ombudsman's application of clause 1(1)(e) of Schedule 1 of the FOI Act by considering the manner in which the Ombudsman approached the application of that clause to the facts as he found them, in a global way.
3. However, a further question posed by the applicant was:

Did the Ombudsman err by making a finding of fact that is not available on the evidence being:

That there was no relevant deliberation or decision of Cabinet in respect of documents 12 and 20.

That in the absence of 'evidence' that the submission contained in document 20 was put to Cabinet, there is no basis for finding that the document disclosed information concerning a deliberation or decision of Cabinet, notwithstanding that the Applicant asserted to same through submissions.

1. It might be said that a finding where there is no evidence, or that there is only evidence that is contrary to the finding, is a finding contrary to law. However, to broaden the scope of the questions of law that enliven a right of review to findings made wholly contrary to the evidence as opposed to findings where the reliance on particular evidence is challenged, is to strain the scope of the review too far. The Tribunal finds that the question does not enliven the Tribunal's jurisdiction and will not be answered.
2. A further question posed by the applicant was:

Did the Ombudsman fail to afford procedural fairness to the Applicant in concluding that there was no evidence to show that there was a relevant deliberation or decision in respect of documents 12 and 20, without first making enquiries as to same and giving the opportunity for the Department to adduce such evidence.

1. This amounts to a complaint that the Ombudsman failed to adopt the appropriate process for the fulfilment of his external review function. It does not speak directly to the determination except insofar as the Department considers that if the Ombudsman had gathered evidence from it, he may have made a different decision. Such a complaint may have a remedy in judicial review but does not disclose a question of law that the scheme contemplates will be addressed on a review under s 40 of the FOI Act and ss 34 and 26 of the SACAT Act. This question does not enliven the Tribunal's jurisdiction.
2. The applicant also posed questions directed at the Ombudsman's determination insofar as he considered whether the documents were exempt internal working documents. These three further questions posed by the applicant were:

Did the Ombudsman err in his construction and application of clause 9 of Schedule 1 of the FOI Act in respect of the relevant documents in that he failed to consider each of the particular documents and the information contained in each document in determining whether disclosure of the document was not in the public interest.

Did the Ombudsman take into account an irrelevant consideration in determining whether the relevant documents are exempt pursuant to clause 9 of Schedule 1 of the FOI Act, in having regard to the fact that that there is other published information about the project the subject of the information in the documents and considering that there is a general public interest in proposed government expenditure, even if that expenditure does not eventuate.

Did the Ombudsman fail to take into account a relevant consideration in determining whether the relevant documents are exempt pursuant to clause 9 of Schedule 1 of the FOI Act, by failing to have regard to the fact that there is a public interest in maintaining the confidentiality of, and protecting information that formed the subject matter of, Cabinet discussion.

1. The first of these questions is directed at the approach taken by the Ombudsman in respect of his consideration of clause 9 and its application to the documents. It refers to whether it was open to the Ombudsman to group documents when considering the public interest test. If a question of law could be derived from this complaint, it is not achieved by the question as framed. I find that this is beyond the scope of the Tribunal's jurisdiction.
2. The second and third questions are framed in terms of the considerations taken into account by the Ombudsman when determining where the public interest lies. These questions enliven the Tribunal's jurisdiction as they are directed at the content of the public interest test and not the manner in which it was applied.
3. It is convenient to address the questions in groups as there is some overlap between the subject matter. Questions 1-5 inclusive all concern the proper construction of clause 1(1)(e) of Schedule 1 of the FOI Act and will be dealt with together.

1. The questions posed by the applicant concern the characteristics that are required of information to attract the operation of clause 1(1)(e) and whether the Ombudsman identified those characteristics. This question will be considered by an analysis of what the Ombudsman said about clause 1(1)(e) and how it was applied to the facts as the Ombudsman found them, what each of the parties said as to the correctness of that interpretation and application, and the Tribunal's determination as to the issues raised.

The Ombudsman's position: what does the Final Determination say about the construction of clause 1(1)(e)?

1. In the final determination, the Ombudsman's primary consideration of clause 1(1)(e) occurs at paragraph [88] as follows:
   1. .... I have adopted the test espoused in Department of the Premier and Cabinet v van Holst Pellekaan

(i) Has there been a relevant deliberation or decision of Cabinet?

(ii) If so, do the documents contain matter the disclosure of which would disclose information concerning that deliberation or decision?

(footnote omitted)

1. However there is an earlier discussion of the clause that arose in consideration of the agency's submissions. In consideration of the agency's submissions as to the construction of clause 1(1)(e), the Ombudsman quoted a passage from the Pellekaan decision and from a NSW decision[28] and said at [32]:

The above excerpts indicate that the fact that the information contained in a document is merely related to a deliberation or decision of Cabinet will not be sufficient to attract the protection of clause 1(1)(e). It is also not sufficient to merely show that the document went before Cabinet at some stage. Rather the agency must show that the contents of the document speak to Cabinet's thinking processes.

In light of this, it is clear that the intention of clause 1(1)(e) is not to create a blanket exemption over any information related, however loosely, to a Cabinet deliberation or decision as the agency has claimed.

1. The Ombudsman then considered the agency's submission in relation to his provisional determination that stated that disclosure of certain documents would not reveal "any substantial information which is not already publicly available" and said, at [36]:

... I clarify that my use of the word 'substantial' was not intended to imply that it is necessary to consider the quality or weight of the information contained in the document when considering clause 1(1)(e). Rather, I do not consider that disclosure of documents 1 and 3 would reveal information which is sufficiently substantial to speak to Cabinet's thinking processes. As already covered, I do not accept that clause 1(1)(e) is intended to automatically apply to any information concerning a deliberation or decision of Cabinet.

1. After setting out his investigations as to what was publicly available, the Ombudsman said at [40]:

Acknowledging that there has been a relevant deliberation nor decision of Cabinet alone is not sufficient to meet the requirements of clause 1(1)(e). I must also consider whether the documents contain matter the disclosure of which would disclose information concerning that deliberation or decision. I am not satisfied that documents 1 and 3 contain such information, again noting that the information does not speak to the thinking processes of Cabinet.

1. From these passages, the Ombudsman's construction of the provision can be summarised as follows:
   1. The document under consideration must have been before Cabinet at some stage;[29]

2. Not all documents that have been before Cabinet will attract the exemption;[30]

1. The information must speak to Cabinet's thinking processes / must inform as to matters relevant to or about the Cabinet deliberative process;[31]
2. The information must speak to Cabinet's thinking processes with a quality of sufficient substantiality;[32] and

5. The information must not be publicly available.[33]

1. The Ombudsman's factual conclusions (relevant to documents that are within the scope of the agency's challenge[34]) can be discerned as follows.

1. There has been a relevant deliberation or decision of Cabinet with respect to each of documents 1 and 3[35] but,
2. The information in documents 1 and 3 is not sufficiently substantial to speak to Cabinet's thinking processes[36] and

3. The information in documents 1 and 3 is publicly available.[37]

1. There has been a relevant deliberation or decision of Cabinet with respect to the MYBR [mid-year budget review], and

2. Documents 4-7 inclusive predate but relate to the MYBR, but

1. None of the documents contains information that relates to any deliberation or decision of Cabinet because the information is "too far removed" from what would have been presented to Cabinet to be "information concerning" a deliberation or decision,[38]

4. Therefore, documents 4-7 inclusive are not exempt.[39]

1. The document was provided to BCC [Budget Cabinet Committee], but

1. The content of the document does not inform on any deliberation or decision of Cabinet,[40]

1. Some information in document 12 is publicly available, and

1. Some other information in document 12 refers to matters previously considered by Cabinet, and

1. Document 12 does not inform on what was presented to Cabinet or the outcome of any Cabinet deliberation,[41]

1. Document 20 discloses details concerning what might have been a deliberation or decision of Cabinet, but
2. There was insufficient evidence that there was a deliberation or decision as referred to,

3. Therefore, document 20 is not exempt under clause 1(1)(e),[42] but

4. Document 20 is partly exempt under clause 1(1)(c).

Summary of the agency's submissions on review regarding clause 1(1)(e)

1. The agency submitted that the Ombudsman failed to properly construe clause 1(1)(e) and as a result, applied the wrong test to each of the documents. It submitted that the errors caused the Ombudsman to wrongly conclude that the documents were not exempt or wholly exempt and that a correct construction would have led to findings that each of the documents were wholly exempt under clause 1(1)(e).
2. The agency observed that the Cabinet exemptions in clause 1 do not require that the agency establish that disclosure would be contrary to the public interest or unreasonable. Nor does clause 1(1)(e) (or any of the subclauses of clause 1) exclude from their coverage a document that has come into the public domain or contains information that is within the public domain.
3. It was emphasised that the wording of 1(1)(e) is broader than its interstate counterpart provisions. Clause 1(1)(e) has as its focus documents which contain information concerning any deliberation or decision of Cabinet. This, it was submitted, is clearly broader than a document that records a deliberation or decision of Cabinet. It was submitted that work must be given to the words, "contains matter the disclosure of which would disclose information concerning" and that these words connote a class of documents broader than that which is caught by the narrower words "if it would disclose information concerning any deliberation or decision of Cabinet". Thus caution was recommended when consideration was given to any of the authorities considering the more narrowly framed exemption in other statutes.
4. It was argued that the word "any" in the phrase "any deliberation or decision of Cabinet" implies that no proximity of connection is required to be established between the information and the deliberation or decision.[43]
5. It was further submitted that it is immaterial that the connection between the information and the Cabinet deliberation or decision might only be derived from another source, and not from the document under consideration on its face. Whether the connection is established or not will depend on how the information appears in the alternative version.[44]
6. The agency contended that the Ombudsman had not in fact applied the reasoning in Department of the Premier and Cabinet v van Holst Pellekaan ('Pellekaan').[45] The agency submitted that Pellekaan stood for the propositions that:
   1. there need not be a connection established on the face of the document between the document and the decision or deliberation;
   2. The document need not record a deliberation or decision;
   3. A deliberation connotes a thinking process but the words "information concerning any" are broader than that;
   4. The content need not "speak to Cabinet's thinking processes";
   5. Protected information may include procedures adopted at Cabinet deliberations, for example, who was present when deliberations occurred;
   6. The decisions of Pisoni[46] and Asher[47] do not fully or adequately interpret clause 1(1)(e);
   7. Circumstances beyond the content of the document can be considered to determine whether a document reveals information concerning a Cabinet decision or deliberation; and
   8. The agency is not required to show that the contents of the documents speak to Cabinet's thinking processes - the documents must disclose information concerning any deliberations or decisions, which is a wider test.[48]
7. The agency advanced these propositions as correct and contended that the Ombudsman failed to apply them.

Summary of the respondent's submissions in relation to clause 1(1)(e)

1. The respondent submitted that the Ombudsman had correctly construed and applied clause 1(1)(e) to the documents. It was submitted that the relational concept embodied by the word "concerning" in the phrase "concerning any deliberation or decision of Cabinet" requires consideration of the document containing the information that is proposed for release, and the relevant decision or deliberation of Cabinet, and the sufficiency of connection or relatedness between the two to enliven the exemption clause.[49]
2. The respondent submitted that this relationship criterion was recognised by the Ombudsman and that he properly construed the provision in that regard.[50] The words "deliberation or decision of Cabinet" connote a process, as distinct from the topic that is the subject of the process.[51] The relationship of the document containing the information is with the process of consideration by Cabinet or the process of deciding by Cabinet.
3. The respondent observed that the case in hand requires consideration of the relationship between particular documents and a subsequent Cabinet decision or deliberation, making it more difficult to determine whether the former is concerning the latter, than where the document post-dates the decision or deliberation.[52]
4. The respondent submitted that the Ombudsman correctly identified this criterion and that it provided a basis for his correct conclusions with respect to documents 4-7, 9, 12 and 20.
5. In respect of documents 1 and 3, the respondent argued that the exemption was found not to operate because the information in those documents was already in the public domain.[53] The respondent contended that being in the public domain necessarily precluded the document from being exempt as there was no basis upon which it could be said that the information was "disclosed". It was submitted that "disclose' means "reveal for the first time" and that the agency conceded this. The respondent reminded the Tribunal that if the Ombudsman had correctly construed "disclose", there could be no challenge on the residual question of whether the Ombudsman had correctly found that the information was in the public domain as that was a finding of fact.
6. The respondent submitted that clause 1(1)(e) is difficult to work with where it requires a decision-maker to decide whether information in a document created long before a decision or deliberation of Cabinet, can be said to be concerning that deliberation or decision.[54] The respondent submitted that to give meaning to the limits of the range between two things that might concern one another, it was appropriate to consider the purpose of the clause, which the respondent submitted to be the protection of the integrity of the Cabinet process.[55]
7. The respondent submitted that the purpose could and should be adopted from the decision of Asher,[56] notwithstanding the fact that Asher considered the narrower version of the clause in the Victorian legislation. It was submitted that the Tribunal should conclude, in accordance with Asher, that the exemption is designed to protect the process of uninhibited debate and discussion amongst members of Cabinet while at the same time maintaining the principle of collective responsibility for any decision which is made.[57]

Decision in Department of the Premier and Cabinet v van Holst Pellekaan

1. Though not binding on the Tribunal in these proceedings, it is useful to summarise the propositions in Department of the Premier and Cabinet v van Holst Pellekaan[58] as both counsel addressed the Tribunal on the reasoning of that decision. The Ombudsman purported to rely upon the decision of the Tribunal in Pellekaan, and the agency sought to assert that Pellekaan was correctly decided but had been misapplied by the Ombudsman.
2. In Pellekaan, Senior Member Stevens was called upon to consider the effect of clause 1(1)(e) and in that regard he:
   • - Emphasised the limits of the utility of reliance upon interstate authorities given the different words used in the SA provision, and in particular that Asher requires the document to disclose deliberations or decisions of Cabinet and that is not the case in South Australia;[59]
   • - Accepted that interstate authorities may be relied upon to assist in the understanding of particular terms in interstate provisions that were the same as those in the South Australian legislation, with appropriate consideration then given to context;[60]
   • - Accepted that deliberations of Cabinet might be described as Cabinet's "thinking processes";[61]
   • - Endorsed the observation in McGuirke[62] that the focus of clause 1(1)(e) is on the deliberation or decision and not the 'mere topic deliberated or decided upon';[63]
   • - Rejected obiter in Pisoni[64] regarding the interpretation of clauses 1(1)(e) as failing to recognise the import of the additional words that are not present in the interstate equivalent provisions;[65]
   • - Proceeded on the basis that a relevant decision or deliberation of Cabinet needed to be identified before it was possible to conclude that disclosure of information in a document would be shown to concern a decision or deliberation of Cabinet;[66]
   • - Found that such decisions or deliberations did occur on the facts of the proceedings before him;[67]
   • - Decided that the relationship between the information in the document under consideration, on the one hand, and the relevant Cabinet decision or deliberation on the other, can be discerned from extrinsic material;[68] and that it need not be apparent on the face of the document proposed for release as that would defeat the purpose of clause 1(1)(e);[69] and in so doing found support in Toomer,[70] and Rann;[71]
   • - Decided, consistent with Rann, that where extrinsic material is the basis for establishing that the information is concerning a Cabinet decision or deliberation, it is irrelevant whether that extrinsic material is in the public;[72]
   • - Found that extrinsic documents established the correlation in the proceedings before him;[73] and
   • - Found that it does not matter whether the extrinsic documents are in the possession of any third party.[74]

1. Having considered the submissions of counsel and the analysis in Pellekaan, various propositions concerning the operation of clause 1(1)(e) may be distilled as follows.

What is a deliberation or a decision of Cabinet?

1. A deliberation can be understood as Cabinet's thinking processes.[75] A decision is an outcome or action agreed upon. As such, it includes 'noting'. As a collective decision-making body, the 'noting' of information is the formal mechanism by which the Cabinet and each of the Ministers in attendance is bound to the fact of knowledge of that information.[76] The clause is directed at protecting the decision-making process, not the subject matter of the process.[77] However, the revelation of the subject matter may expose the process.

The information in the document under consideration for release must concern a deliberation or decision of Cabinet

1. The 'information' referred to in clause 1(1)(e) and to which the decision-maker must turn his or her mind, must concern a Cabinet deliberation or decision (or several).
2. Looking to the words of the provision, there is no requirement of any sufficiency of relationship between the information and a deliberation or decision. There is no constraint on the proximity of the relationship between the information in the document proposed for release and the Cabinet deliberation or decision. It need not "shape"[78] the deliberation or decision.
3. Proximity is not a relevant criterion.
4. Again, from a plain reading of the words of the provision, there is no qualitative aspect of the exemption with respect to the value of the information disclosed. It is irrelevant that the disclosure may provide minimal illumination of the deliberation or decision.
5. The document need not disclose a deliberation or decision on its face but need only contain information which if disclosed, would have the effect that a deliberation or decision is revealed. That effect may be achieved by the disclosure of the document without reference to other information but there is no basis to confine it so. If the effect is achieved by reference to other information, the document will nevertheless be exempt.

1. Clause 1(1)(e) affords exempt status to documents which, if released, would disclose certain information. 'Disclosure' in this context means a revelation for the first time.[79] However, this is not to be understood to refer to the document itself but to the information. If the information, though not necessarily the document, is within the public domain, to that extent release of the document containing the information may not constitute a disclosure as there may not be a revelation. Whether there is or not will depend on other information in the document and whether the release of the document itself amounts to information that has not been disclosed. In other words, the existence of the document may itself constitute information concerning a deliberation or decision of Cabinet.
2. This analysis is consistent with the reasoning of Senior Member Stevens in Pellekaan regarding the construction of clause 1(1)(e).

Application of the principles governing clause 1(1)(e) to the Ombudsman's reasoning

1. Applying these propositions to the Ombudsman's reasoning, certain errors occurred.
2. In relation to documents 1 and 3, the Ombudsman's reasoning that the information was not "sufficiently substantial" to speak to Cabinet's deliberations was in error because no quality of substantiality is required. However, the Ombudsman also found that the information is in the public domain. That is a factual conclusion that cannot be impugned. Accepting that the information is in the public domain, there can be no disclosure of it by virtue of the release of the document containing the information. That was a second basis for the Ombudsman's determination that the documents are not exempt. That basis cannot be impugned and therefore the Ombudsman's decision in relation to documents 1 and 3 is affirmed.
3. In relation to documents 4-7 inclusive, the documents contained information that the Ombudsman found to be "too far removed from what would have been presented to Cabinet" to concern the decision or deliberation that subsequently occurred.[80] The documents were:
   • Document 4 - an email dated 17/10/18 from officers in the agency to other officers in the agency and DPTI seeking information regarding Cabinet's mid-year budget review (MYBR).
   • Document 5 - an email dated 18/10/18 from DPTI to the agency providing information regarding aspects of the MYBR.
   • Document 6 - emails on 17/10/18 and 18/10/18 between the agency and DPTI providing information regarding aspects of the MYBR.
   • Document 7 - emails on 23/10/18 and 24/10/18 between the agency and DPTI providing information regarding aspects of the MYBR.
4. Two issues must be borne in mind. The first is that the disclosure must relate to the deliberation of Cabinet and not merely the subject-matter of a deliberation of Cabinet. Not all documents in Government on a topic are exempt under clause 1(1)(e) simply because Cabinet happens to deliberate on that topic before or after the creation of the document. However, these documents concerned the MYBR, which is a Cabinet process. They were not merely coincidentally on the same topic; they were created for the purpose of the process of Cabinet's future activity of deliberating on the MYBR. Therefore, they "concerned" the MYBR. Secondly, the Ombudsman has applied a proximity criterion to the relationship between the documents and the Cabinet process. As described above, no proximity criterion can be read into the provision. The remoteness of the emails and the deliberation do not bear upon its exempt status.
5. Accordingly, documents 4-7 inclusive are exempt documents and I would set aside the Ombudsman's decision to this extent and substitute a finding that the documents are exempt documents.
6. Documents 9 is an undated, one-page schedule that the Ombudsman found "appears to be an extract from a larger document". The Ombudsman accepted that the document was provided to the Budget Cabinet Committee. The Ombudsman decided that the agency had not established that the document informed in any way on any deliberation or decision of Cabinet.[81]
7. The agency submitted that if the Tribunal were to form the view that the Ombudsman had erred in a manner that required a reconsideration as to whether a document was exempt, the Tribunal should allow the parties to make submissions on that issue, including potentially making a request to take further evidence on a rehearing under s 34(5) of the SACAT Act. However, as discussed at paragraph [34] of this decision above, that requires some error of law to be established. The Ombudsman determined the status of this document on the evidence (or lack thereof) that he had. The only error that could have been made on the evidence that was before him is that the fact that the document went to the Budget Cabinet Committee was not necessarily determinative of whether it concerned a deliberation or decision of Cabinet. That proposition is legally correct. A document is not exempt under this clause merely by being shown to have gone before Cabinet (or a Cabinet committee). Accordingly, the status of document 9 was decided on the evidence (or lack thereof) and, absent an error, the agency does not have a right to a review.
8. I would affirm the Ombudsman's decision in respect of document 9.
9. Document 12 is an email chain containing information provided by DPTI to the agency in relation to various infrastructure projects. The Ombudsman found that the document was partly exempt pursuant to clause 1(1)(e) but that the remainder was not exempt because the remainder did not "inform" on what information was presented to Cabinet, or the outcome of a Cabinet deliberation or decision.[82] The Ombusdman said,

In my view, for information to be information 'concerning' a deliberation or decision of Cabinet it must inform in some way as to matters 'relevant to' or 'about' the Cabinet deliberative or decision-making process. A document submitted to Cabinet or recommendations made to Cabinet may influence debate, discussions and deliberation during a Cabinet meeting and may influence a Cabinet decision, however it is difficult to see how a document that was not even placed before Cabinet could do so, even if it comprised information that was later presented to Cabinet.[83]

(footnote omitted)

1. The Ombudsman referred to the agency's argument in submissions that document 12 provided Ministers attending the BCC with "information around potential future funding requirements and potential budget impacts" and that the information was used by Ministers to make decisions in all Cabinet meetings where funding is required. The Ombudsman found that this failed to identify a particular deliberation or decision. Secondly, the Ombudsman found that the document itself did not "concern" a deliberation or decision but rather simply may have been something that was considered by or presented to Cabinet.
2. The agency did not establish on review that the Ombudsman's reasoning was incorrect. The agency is required to establish that the document concerned a deliberation, and it was open to the Ombudsman to reject the assertion that the information was used in a general sense as described by the agency was sufficient to show that the information concerned a deliberation of Cabinet.
3. Document 20 is an email chain between a staff member of the agency and another individual. In providing a response to a question posed, reference is made to a Cabinet submission being drafted on the particular topic addressed in the response.
4. The Ombudsman accepted the agency's submission that the document contained information that was subsequently reflected in a Cabinet submission prepared by the agency but as the agency did not provide any information that indicated that the submission in fact went to Cabinet, there was no evidence upon which he could find that the email's content disclosed information concerning a deliberation or decision of Cabinet.
5. As with document 9, the Ombudsman's decision was not shown to have any error of principle and the document was found not to be exempt because of an evidentiary gap. The agency does not have a right of review absent a question of law disclosing an error and I would uphold the Ombudsman's decision in respect of document 20 insofar as clause 1(1)(e) is concerned.
6. The agency's review of the decision insofar as it relates to clause 1(1)(e) is therefore successful in part. The Tribunal sets aside the Ombudsman's decision in relation to documents 4, 5, 6, and 7 and determines those documents to be exempt documents.

1. The applicant posed three questions in relation to the interpretation of clause 9 of schedule 1. Clause 9 is headed "Internal Working Documents" and provides:

(1) A document is an exempt document if it contains matter -

a. That relates to-

1. Any opinion, advice or recommendation that has been obtained, prepared or recorded; or

ii. Any consultation or deliberation that has taken place,

In the course of , or for the purpose of, the decision-making functions of the Government, a Minister or an agency;

and

b. The disclosure of which would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of-

a. Matter that appears in an agency's policy document; or

b. Factual or statistical material.

1. The questions of law in relation to which the Tribunal has jurisdiction were directed to whether the Ombudsman had:
   • - Determined that the public interest included an interest in Government proposal for expenditure that did not eventuate; and
   • - Failed to take into account the need to preserve Cabinet confidentiality as a facet of the public interest.
2. It is convenient to address these two questions together.

What did the Ombudsman say in relation to clause 9?

1. The documents in dispute in respect of the Ombudsman's determination on the applicability of clause 9 were 1, 3, 4-7, 9, 12 and 20.
2. The Ombudsman found that each of the documents in dispute in the internal review meet the first limb of the test in clause 9(1). In other words, the Ombudsman found them all to constitute "internal working documents". There was no suggestion that these findings were not open to him or, indeed, not correct.
3. Clause 9 was claimed in respect of all of the documents that are now the subject of review. In his determination, the Ombudsman considered the application of clause 9 on a document by document basis, though he grouped several of the documents. Some of the reasoning, therefore, arises in the consideration of a particular document.
4. The Ombudsman declined to determine whether documents 9 or 20 were exempt pursuant to clause 9 because he had already determined them to be partly exempt under clause 1(1)(c).[84] On review, the agency claimed that these documents are wholly exempt pursuant to clause 9. The agency is entitled to have the claim to exemption pursuant to clause 9 considered by the Tribunal.
5. In respect of document 13, the Ombudsman endorsed the decision in Re Lianos[85] which states that the test (which was in equivalent terms to clause 9) entails consideration of:
   • The age of the documents;
   • The importance of the issues discussed;
   • The continuing relevance of those issues in relation to matters still under consideration;
   • The extent to which premature disclosure may reveal sensitive information that may be "misunderstood or misapplied by an ill-informed public";
   • The extent to which the subject matter of the documents is already within the public knowledge;
   • The status of the persons between whom and the circumstances in which the communications passed;
   • The need to preserve confidentiality having regard to the subject matter of the communication and the circumstances in which it was made; and
   • The extent to which disclosure of the documents would be likely to impede or have an adverse effect upon the efficient administration of the agency concerned.[86]
6. The Ombudsman proceeded to identify three further "factors in favour of disclosure":[87]
   • Meeting the objects of the FOI Act favouring access to documents;
   • The public interest in government expenditure;and
   • The importance of transparency and accountability in government decision-making.
7. The Ombudsman found that there were four factors "contrary to disclosure" in respect of document 13:[88]
   • The need to preserve confidentiality having regard to the subject matter of the communication and noting that the information is not public knowledge;
   • The likelihood that disclosure could inhibit frank and open discussion, both internally and between government departments;
   • The possibility that disclosure could adversely affect the efficient administration of the agency; and
   • The fact that the strategies discussed do not necessarily represent the final Brought Forward Payments.
8. The Ombudsman found that the factors contrary to disclosure were outweighed by those that were in favour of disclosure in respect of documents 1, 3-7 inclusive, 12 and 20 over which exemption pursuant to clause 9 was claimed. In respect of these documents, he considered the following factors as relevant to the identification of the public interest as follows:
   • whether the information to be disclosed is of proposed government expenditure (whether or not expended);[89]
   • the degree of detail of the information to be disclosed;[90] and
   • the sensitivity of the documents measured by reference to the detail contained therein.[91]
9. After identifying the factors, the Ombudsman concluded:[92]

Having regard to the submissions of the agency and to the further public interest factors I have identified, it is my view that, on balance, disclosure of documents 1, 3, 4, 5, 6, 7, 12 and 20 would not be contrary to the public interest and that these documents are not exempt.

Conversely, I consider that, on balance, disclosure of documents 16 and 17 would be contrary to the public interest and am therefore satisfied that these documents are exempt pursuant to clause 9(1).

1. The applicant submitted that the Ombudsman failed to give sufficient weight to the nature of the documents as attracting confidentiality and the Re Howard factors. Those factors include the seniority of the officers between whom a communication was undertaken; the sensitivity of the issues; and the extent to which disclosure would inhibit frankness and candour in future pre-decisional communications.[93]
2. The applicant submitted that the Ombudsman conflated interest in the project with where the public interest in disclosure of the documents lies.[94] Further, the applicant argued that there was no inherent public interest in proposed government expenditure that did not eventuate.
3. The applicant also complained that the Ombudsman had not considered the public interest in disclosure of each document individually, but had grouped the documents to undertake the balancing exercise of consideration of the interest in release and interest in protection from disclosure.

1. The respondent submitted that the Ombudsman correctly stated the public interest test and identified criteria relevant to clause 9.[95] The matters that were taken into account were not irrelevant.
2. The respondent submitted that the Tribunal could be guided by McKinnon v Secretary, Department of Treasury[96] in which the Full Court of the Federal Court said:

The indeterminate nature of the concept of the "public interest" means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination.[97]

1. The respondent submitted that as the public interest is multifaceted and is determined by reference to the subject matter, questions regarding the public interest are mostly going to emerge as questions of fact.[98] Nevertheless, if it were accepted that the content of the public interest could be framed as a question of law, analysis of the Ombudsman's approach to the public interest was clearly open to him insofar as it entailed the premise that not proceeding with a proposal for Government expenditure might very well be a matter within the public interest.
2. The respondent observed that insofar as any doubt arose as to whether the Ombudsman properly considered the need to protect the confidentiality of Cabinet as a matter relevant to the public interest, such doubt is resolved when it is acknowledged that other documents (not subject to the internal review) were afforded exempt status precisely on this basis.

1. The Tribunal observes that the agency did not seek to fortify its position by putting before the Ombudsman the views of the Minister administering the FOI Act in respect of what the public interest requires in this case. Had that been the case, the Ombudsman would have been required to uphold the Minister's assessment unless there were cogent reasons for not doing so. It is a matter for another day to determine how the equivalent provision insofar as it relates to an agency's review by the Tribunal (s 40(7)) operates in the context of a review confined to a question of law. In the case at hand, neither the agency nor the Minister administering the FOI Act adopted that path and therefore the "cogent reasons" test does not apply.
2. Even though a broader interpretation of the applicant's right of review than the respondent sought is appropriate, the attribution of weight afforded to particular factors is beyond the scope of the applicant's right of review. However, to the extent that the Ombudsman misstated the relevant factors, the question of the content of the test is raised and that operates as a question of law to enliven the Tribunal's jurisdiction.
3. Whilst the authorities are clear that the factors that are to be considered in determining where the public interest lies are multifaceted and variable by reference to the nature of the information, not all considerations are relevant. It is established that for the purposes of understanding the concept of the public interest as it operates in the various exemptions in the FOI Act, the factors set out in Re Howard are not mandatory or exhaustive.[99]
4. It is possible for a consideration to be irrelevant and to that extent a determination based on irrelevant considerations may constitute an error or law.
5. In respect of the complaint that the Ombudsman conflated interest in the project that is the subject of the content of the documents, and the public interest, the Tribunal rejects that claim. The Ombudsman's reasoning is clear that the fact that there is interest in the project is but one of several components in the determination of what the public interest requires. The Ombudsman addressed the existence of published information about the infrastructure project as a matter relevant to where the public interest lies and it may be inferred that the Ombudsman reasoned that where there is some information in the public domain, there may be a public interest in disclosing further information about that subject to achieve a more complete picture. Such reasoning could not be said to be wrong, although it does not entail that it will always be the case.
6. The Ombudsman also considered that whether the Government had not proceeded with the project to be a matter relevant to where the public interest lies in respect of disclosure. The applicant argued that the disclosure of such information "has the potential to cause confusion and draw undue criticism of decision making processes".[100] The potential to cause confusion may be a factor relevant to where the public interest lies and the Ombudsman acknowledged this and weighed it as a factor and ultimately determined that it did not lead to the conclusion that disclosure would be contrary to the public interest.
7. As the Ombudsman acknowledged the potential for confusion to be a relevant factor, there is no question of law arising from the complaint.
8. The Tribunal rejects the argument that each document must be separately addressed by reference to the damage to the public interest that it would cause, if released, in a matter such as this. It is evident that any document released may be understood by reference to other information concerning the project that is in the public domain. Neither the agency nor the Ombudsman sought to identify all such information, which would in any event change from time to time. It is possible to make a finding that it would be contrary to the public interest for a document to be released even when it may not be clear, on the face of the document alone, the interest in maintaining the confidentiality of the document. It is open in some cases to group documents, although caution must be used in taking such an approach to give appropriate operation to the focus that the FOI Act places upon individual documents. The agency has not shown an error by the Ombudsman in this instance relating to the grouping of documents for consideration of the application of clause 9 to them.
9. In relation to the complaint regarding the Ombudsman's failure to take into account the potential for "undue criticism of decision-making processes", the applicant did not establish, either before the Ombudsman or the Tribunal, what the criticism might be and why it would be undue. It has not been established that this was a relevant factor in the determination of where the public interest lies.
10. It is evident that the public interest entails consideration of the confidentiality of, and protecting, sensitive communications. The applicant maintained that insufficient weight was given to this factor. As indicated above, the manner in which the Ombudsman balanced the relevant factors is not a question of law and does not enliven the Tribunal's jurisdiction on review.
11. The applicant's review insofar as it is based on the Ombudsman's consideration of the applicability of clause 9 of Schedule 1 to the documents does not succeed.

1. The Tribunal makes the following orders:
   1. The determination of the Ombudsman with reference number 2019/09329 dated 8 October 2020 is varied as follows:

1.1 In respect of documents 4-7 inclusive, the determination is varied and the documents are exempt documents for the reasons provided in this decision.

2. The Ombudsman's determination is otherwise affirmed.

3. The agency is to pay the reasonable costs of the respondent.

[1] Freedom of Information Act 1991 (SA) s 19(2)(b).

[3] A relevant Act is defined in s 3 of the SACAT Act as an Act that confers jurisdiction on the Tribunal. Section 40 of the FOI Act makes such a conferral.

[4] See, for example Re AKS [2016] SACAT 19 at [20]- [28] which concerns s 70 of the SACAT Act that is in similar terms and in respect to the Tribunal's internal review jurisdiction. Also see, Martin v Valuer-General [2020] SACAT 104; Pyman v Valuer-General [2016] SACAT 1.

[5] South Australian Civil and Administrative Act 2013 (SA) s 19(3).

[6] [2013] SADC 130.

[7] [2014] SADC 56.

[9] (2010) 241 CLR 320; [2010] HCA 24.

[10] South Australia, Parliamentary Debates, House of Assembly, 18 June 2014, p 789 (The Honourable John Rau).

[11] (2015) 322 ALR 254; [2015] FCAFC 92 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

[12] Administrative Appeals Tribunal Act 1975 (Cth) s 44(7).

[13] Haritos & Anor v Commissioner of Taxation (2015) 322 ALR 254; [2015] FCAFC 92 at [97].

[15] [2013] FCA 1312.

[16] Ibid at [53], citing with approval Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at [51].

[17] Haritos & Anor v Commissioner of Taxation (2015) 322 ALR 254; [2015] FCAFC 92 at [110].

[19] Ibid, citing with approval the dictum of Spigelman CJ in Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [28].

[22] Osland v Secretary of Department of Justice (2010) 241 CLR 320; [2010] HCA 24.

[23] Repatriation Commission v Owens (1996) 70 ALJR 904; 187 CLR 704.

[24] South Australian Civil and Administrative Tribunal 2013 (SA) s 8(1)(c).

[25] Ibid s 8(1)(f).

[26] Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56.

[27] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1)(c).

[28] National Parks Association of New South Wales Inc v Department of Lands and Anor [2005] NSWADT 124 at [37].

[29] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [32].

[34] Noting that the Ombudsman's determination in relation to documents 8, 13, 16, 17 and 28 are not subject to challenge.

[35] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [89].

[42] Ibid at [122]. There is a typographical error in the determination. The reference to document 12 at the end of paragraph [122] only makes sense if it is read as a reference to document 20.

[43] Applicant's Outline of Argument dated 23 December 2020 at [29].

[45] [2018] SACAT 56.

[46] Department of State Development v Pisoni [2017] SADC 34.

[47] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17; [2007] VSCA 272.

[48] Applicant's Outline of Argument dated 23 December 2020 at [20] - [26].

[49] Respondent's Written Submissions dated 21 January 2021 at [2].

[56] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17; [2007] VSCA 272.

[57] Ibid at [54] (Redlich JA). Also see, Transcript of hearing at p 66.

[58] [2018] SACAT 56.

[59] Ibid at [78] and [112]-[115].

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

[63] Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56 at [71], [74] and [104].

[64] Department of State Development v Pisoni [2017] SADC 34.

[65] Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56 at [77]- [78].

[70] Toomer v Department of Agriculture, Fisheries, Forestry and Others [2003] AATA 1301 at [96] (Deputy President Forgie).

[71] Rann v SA Water & Baker (No 2) (1996) 187 LSJS 441, 444 (Brebner CJ).

[72] Department of the Premier and Cabinet v van Holst Pellekaan [2018] SACAT 56 at [105]- [106].

[75] Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588.

[76] See generally the discussion of Cabinet processes in Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301 including the observation that a "deliberation" may occur even where no decision occurs at [88].

[77] Secretary to the Department of Infrastructure v Asher (2007) 19 VR 17; [2007] VSCA 272 at [4]- [6] (Buchanan JA).

[78] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [44].

[79] Department of State Development v Pisoni [2017] SADC 34 at [29] citing with approval Re Burchill & Department of Industrial Relations [1991] AATA 70; (1991) 23 ALD 97, 107 and Re Boehm & Department of Industry, Technology and Commerce (1985) 7 ALN N186, N190.

[80] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [100].

[84] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [124].

[85] Re Lianos and Secretary to the Department of Social Security [1985] AATA 38 at [81].

[86] Final Determination of the Ombudsman (2019/09329) dated 8 October 2020 at [128].

[93] Re Howard and the Treasurer of the Commonwealth (1985) 7 ALD 626; [1985] AATA 100 at [20].

[94] Applicant's Outline of Argument dated 23 December 2020 at [54].

[95] Respondent's Written Submissions dated 21 January 2021 at [65].

[96] [2005] FCAFC 142.

[99] Attorney-General for the State of South Australia v Seven Network (Operations) Ltd [2019] SASCFC 36 at [126]; Ipex Information Technology Group Pty Ltd v Department of Information Technology Services (SA) (1997) 192 LSJS 54.

[100] Applicant's Outline of Argument dated 23 December 2020 at [54].