Graze v Commissioner of State Revenue (Review and Regulation) [2013] VCAT 869

Mr Chris Young of counsel, instructed by the Solicitor to the Commissioner of State Revenue

1. Mr and Mrs Graze are Victorian taxpayers. Mrs Graze's uncle, Mr Eberhardt Guenthner died in 2006. As from 2007, Mrs Graze became the person concerned on behalf of the estate to deal with land tax matters. The respondent Commissioner of State Revenue is the public officer charged with the collection of Land Tax in Victoria under the Land Tax Act 2005. The deceased estate of the late Mr Eberhardt Guenthner is known colloquially as the Eb Estate. By 2009, Mrs Graze was of the opinion that the accounts as between the estate and the Commissioner were in disarray. She said:

There were four accounts issued by the SRO [State Revenue Office] that were contradictory and confusing and no rolling balance (identifying payments received against amounts owing) had been issued ...'

1. As executrix of the estate she had telephone conversations and conferences with a number of the Commissioner's officers. It is unnecessary for the purposes of my determination to traverse the various communications which ensued, suffice to say that Mrs Graze was critical of the manner in which the Commissioner's officers responded to her concerns.
2. After a number of meetings, which Mrs Graze described as 'tedious', one of the Commissioner's officers told her that the commissioner was considering revisiting the Land Tax assessments for the Eb Estate.
3. New assessments were issued for the years 2008 to 2011 which removed the advantage of a principal place of residence exemption which had been granted during the deceased's life and added what was known as a 'trust surcharge'.
4. The estate lodged an objection to these re-assessments and a delegate of the Commissioner, by notice dated 28 March 2011 disallowed it. Mrs Graze then asked for the objection to be referred for hearing to this Tribunal. By letter dated 30 June 2011 over the signature of a solicitor in the Commissioner's Legal Services Branch, Mr Michael Edelstein, the Commissioner informed Mrs Graze that the principal place of residence exemption for the property at 1 Callis Parade, Bayswater, had been restored for the years 2008 and 2009. Nevertheless, the trust surcharge was maintained for the years 2010 and 2011. The letter stated:

Simply put, the reason is that, under the legislation, the exclusion from the surcharge lasts only for a maximum of three years after the testator's death; it does not last forever.

1. By an e-mail dated 16 August Mr Graze furnished a copy of the will of Mr Guenthner. He remarked that a copy of the will had 'been in the possession of the SRO for several years'. He furnished a history of dealings with relevant land.
2. By a letter dated 3 October 2011 an officer of the State Revenue Office advised 'I confirm that we accept that the trust surcharge does not apply for 2010 and 2011 but that the general rate will apply'.
3. This letter concluded the dispute and no hearing at the Tribunal was required.
4. By a letter received at the State Revenue Office on 20 August 2012, Mr and Mrs Graze sought access to some 12 classes of document as follows:
   1. Documents created between 22 February 2011 to 24 August 2012, relating to the Eb Guenthner Estate and subsequently properties owned jointly by Ingrid M. Graze, Dieter E. Blaich and Rolf M. Blaich ('The Estate').
   2. All correspondence (mail, email, internal mail, internal notes etc) relating to The Estate created by or sent to Emily Rasmussen, Andrew Butcher, Dan Chetcuti, Graham George, Don Di Federico, Bonnie McAllister, Tim McIntosh, Michael Edelstein, The Commissioner, Terry George and Nicole Monks.
   3. Every payment receipt issued by the SRO for each payment made by The Estate to the Land Taxes owed by The Estate.
   4. Any other document created by any SRO staff member relating to The Estate.
   5. Documents created between 22 February 2011 to 24 August 2012 relating to the Tom and Ingrid Graze joint account (the payments of land taxes for all the properties jointly owned by these two individuals).
   6. Every internal note, email, mail, internal mail, other document created by or sent to Emily Rasmussen, Andrew Butcher, Dan Chetcuti, Graham George, Don Di Federico, Bonnie McAllister, Tim McIntosh, Michael Edelstein, The Commissioner, Terry George and Nicole Monks relating to the above Joint account.
   7. Every payment receipt issued by the SRO for each payment made to the Land Taxes owed by Tom and Ingrid Graze, to Tom and Ingrid Graze or any other party.
   8. Any other document created by any SRO staff member relating to the Tom and Ingrid Graze Joint account.
   9. Documents created between 22 February 2011 to 24 August 2012, relating to the Ingrid Graze account (the payments of land taxes for all the properties solely owned by Ingrid Graze).
   10. Every internal note, email, mail, internal mail, other document created by or sent to Emily Rasmussen, Andrew Butcher, Dan Chetcuti, Graham George, Don Di Federico, Bonnie McAllister, Tim McIntosh, Michael Edelstein, The Commissioner, Terry George and Nicole Monks relating to the above account.
   11. Every payment receipt issued by the SRO for each payment made by Ingrid Graze to the Land taxes owed by Ingrid Graze, to Ingrid Graze or any other party.
   12. Any other document created by any SRO staff member relating to Ingrid Graze.
5. No determination was made within the 45 day period referred to in the Freedom of Information Act and, as a result, in accordance with Section 53(1) of the Freedom of Information Act 1982, there was a deemed refusal of access to the document. Mr and Mrs Graze filed the application which commenced this proceeding.
6. There were 473 documents identified by the Commissioner as falling within the request. Access in full was granted to 412 with partial access granted to one. Some 60 documents remained in dispute. When the matter came before Senior Member Davis for directions on 10 December 2012 he directed that there be a sampling of the documents remaining in dispute, identifying no more than eight documents as samples and identifying the class of documents to which each sample document pertained.
7. Solicitors acting for Mr and Mrs Graze gave undertakings as to confidentiality and inspected the documents in dispute in consultation with the Solicitor for the Commissioner of State Revenue. They identified four sample documents. A solicitor acting for the Commissioner sent a letter by email dated 12 April 2013 advising that there were 'some additional documents which should have been, but were not, identified as being relevant to your request ...'. There were 30 of these additional documents. Access was granted in full to six of them and in part to one of them with access denied in full to 23.
8. By this time the solicitors had ceased to act and so the mechanism of consultation subject to undertakings as to confidentiality was not available. The Commissioner and his legal advisers identified a document which would stand as the sample document for that class.

THE LAND TAX ACT 2005

1. It is necessary now to say something as to the Land Tax Act 2005, the enactment which led to the dealings between the Commissioner and the Grazes.
2. The 2005 Act is the latest of a series of statutes which for many years have imposed tax on the ownership of land in Victoria. It imposes a tax on the private ownership of land in the State as at 31 December each year with owners liable to pay an assessed tax based on the value of their landholdings as at that date. The tax is levied at a sliding scale so that a citizen owning a single piece of land of modest value may not reach the taxable threshold. On the other hand, a citizen or corporation owning a large number of valuable pieces of land will pay at a relatively high rate. The same piece of land, therefore, may attract taxation at varying rates depending upon the other lands held by the owner at the time of assessment. The tax is subject to a number of exemptions and special imposts. The most significant exemption for the average taxpayer is the so called principal place of residence exemption, so that a person is exempt from tax as a land owner upon his or her principal place of residence. This exemption is to be found in Division 1 of Part 4 of the Act. A special surcharge is imposed on lands held on trust by Division 2A of Part 3 of the Act.
3. When initially enacted, the 2005 Act stipulated that, where land is exempt as a principal place of residence and the resident died, the exemption would continue until:

(a) the first anniversary of the person's death; or

(b) the day on which the person's interest in the land vests in another person under a trust; or

(c) the day on which the person's interest in the land vests in a person (other than the person's personal representative under the administration of the estate).

1. Section 57(2) was amended so as to extend the first of the periods referred to until 'the third anniversary of the person's death or the expiry of the further period approved by the Commissioner under sub-section (3)'. Sub-section (3) was added empowering the Commissioner to approve an extension of that period 'in any particular case'.
2. Somewhat confusingly, the Land Tax Act 2008 which is Act No. 88 of 2005 was amended by Act No. 85 of 2005 by adding Division 2A to Part 4 imposing a special surcharge on 'land held on trust'. This surcharge did not apply to land subject to an excluded trust as that expression was defined in the amending Act. The definition of excluded trust had some seven paragraphs numbered (a) to (g). Paragraph (f) of the definition referred to:

(f) a trust established by a will, but only during the period ending on the later of -

(i) the 3rd anniversary of the testator's death or the further period approved by the Commissioner under subsection (3); or

(ii) if, at the testator's death, all the potential beneficiaries are minors - the 18th birthday of the first beneficiary to turn 18;

1. Sub-section (3) was added to Section 3 of the Land Tax Act so as to provide the Commissioner with a power to extend the three year period in any particular case.
2. The re-assessments which were ultimately remitted derive from these provisions. It appears that those involved in the assessment applied the one year limit on the period of the principal place of residence exemption for the late Mr Guethner's residence as initially enacted without realising apparently that the one year period had, for the second and third tax years after his death, been extended to three years. Further, it seems that the information provided to the Commission by Mr Graze led the Commissioner to determine to extend the one year period during which the deceased estate was an excluded trust for three years. Hence, the Commissioner ultimately stepped back from the reassessments which he had made.

1. The Commissioner maintains that the documents in dispute are exempt from production to the Grazes by virtue of various provisions of the Freedom of Information Act 1982. The Grazes wish to put the Commissioner to proof of the existence of those exemptions. Their principal contention, however, is that even if the exemptions are made out, the documents should nevertheless be produced to them in accordance with what is known as the 'public interest override' under Section 50(4) of the Freedom of Information Act empowering the Tribunal to override most of the Act's exemptions 'where the Tribunal is of opinion that the public interest requires that access to the documents should be granted'. Each of the exemptions relied on by the Commissioner is capable of being overridden by this provision in an appropriate case.

1. The first of the exemptions relied upon by the Commissioner was the one established by Section 30(1) of the Act. The sub-section is as follows:

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

1. We should also note sub-section (3) which states:

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

1. Mr Young relied on the decision of Vice President Judge Hampel in Friends of Mallacoota Incorporated v The Department of Planning and Community Development [2011] VCAT 1889 where Her Honour stated at paragraph [67]:
   1. ... it is in my view, of great importance that the independence and quality of advice provided to Ministers or other ultimate decision-makers by departmental officers in the discharge of their obligations or the functioning of the agency is not compromised. Public servants must feel free to give robust and independent advice to Ministers and other decision-makers, to test and challenge assumptions, to canvass options, and to consider all possibilities. This freedom is of fundamental importance that the integrity or effectiveness of the decision-making process. It is essential that frank and fearless advice and expression of opinion be provided to Ministers and other decision-makers, so they are fully informed before they discharge their responsibility to make a decision. In my view, none of the matters raised by the applicant in support of its submission there is a public interest in favour of disclosure in respect of the release of draft and working documents, which form part of the deliberative process outweighs the public interest in this case in protecting the independence and quality of advice provided to decision makers by departmental officers.
2. It is important to note, however, that Parliament has not made documents exempt simply because they are internal working documents. Merely to demonstrate that documents are part of the deliberative processes of an agency, that is, its thought process, does not, without more, make out the exemption. The view that officers in the Public Sector will be able to give candid and fearless advice only if they can be confident that such advice will not be open to public scrutiny under the Freedom of Information Process would be served only if the exemption were made absolute in its terms and perhaps protected from being overridden under Section 50(4). We must assume that the failure to do either of these things was a deliberate decision by Parliament.
3. As I have in frequently observed Freedom of Information determinations over the years, the possibility of public scrutiny may improve the quality of advice that is given to administrative decision-makers. The provision of advice that is superficial or the result of insufficient analysis or might be thought to be slanted to a particular political view would be deterred by the prospect that such advice might come to light under the Freedom of Information system. The fact that Parliament has left the public interest issues relative to internal working documents at large indicates, to my mind, that it contemplates that the public interest may cut both ways.
4. One might multiply instances of public interest analyses in particular Tribunal determinations. In my respectful view, what is required in each case is a consideration of where the public interest lies relative to the particular document or documents in dispute. There is no universal answer as to where the public interest lies with respect to internal working documents.
5. The next exemption relied on by the respondent was the one created by Section 32(1) of the Act which is in the following terms:

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

1. It will be seen that this exemption, which was to some degree recast by amendment in 2009, requires consideration of whether a document would be privileged from production in hypothetical legal proceedings. It also requires consideration of legal professional privilege, a common law concept and 'client legal privilege' being the statutory privilege dealt with in the Evidence Act 2008 which is based on the 1995 Commonwealth statute adopted now in most of the states of Australia in lieu of the old common law with the multifarious statutory amendments which have become encrusted upon it. The learned editors of Pizer Victorian Administrative Law considered the High Court decision in Esso Australia Resources Limited v Federal Commissioner of Taxation (1991) 401 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9] - [11] and concluded that a document would be privileged under legal professional privilege in at least the following circumstances:

1. it contains a confidential communication between the client or the client's agent and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable depending on contemplated litigation; 2. it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

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

1. A document covered by this privilege may cease to enjoy that protection from production in the event of waiver. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 13 at [29] Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

1. Legal professional privilege attaches alike to documents generated by private legal practitioner or prepared for submission to them and to documents brought into existence by or for the consideration of 'in-house counsel' in their capacity as such, Roy Morgan Research Centre v State Revenue Office [1999] VCAT 1379; Attorney General (Northern Territory) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 510, 521-2, 530-31; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 62, 81-2.
2. The next exemption relied on by the respondent was the one established by Section 35(1) of the Act providing as follows:

35 Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(a) the information would be exempt matter if it were generated by an agency or a Minister;

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. As to the circumstances in which information can be regarded as having been communicated in confidence, I take the liberty of quoting something that I said as a Member of the Administrative Appeals Tribunal of the State of Victoria 18 years ago.

In Re Pepperell and Ministry of Housing & Construction (1989) 2 VAR 191 Mr Galvin considered the question in what circumstances information would be regarded for the purposes of the section as "having been communicated in confidence". He referred to an unreported decision of Judge Hassett given in the County Court in the matter of Deasey v Geskhe and said:

"It would appear to be an arguable conclusion from His Honour's words that, in his view, in determining whether information was communicated in confidence, it is sufficient to have regard either to the intention of the author or the attitude of the recipient.

An actual understanding as to confidentiality on the part of the recipient would not appear to be essential."

"Where confidentiality is apparent from the nature of the information, it would appear to be unnecessary to have regard to how the information was in fact received."

It would seem therefore that no formal confidentiality agreement is required to establish that information was communicated in confidence, nor is it necessary to establish a "meeting of the mind". Conversely, the mere fact that a letter is headed "private and confidential" is not sufficient in itself to establish that that communication was made in confidence, Re Barnes and Communication for Corporate Affairs (1985) 1 VAR 16 at 18.

As to the meaning of the word "impair" King J, as a Member of the Full Court in Ryder v Booth (at 885) adopted a definition from the Shorter Oxford Dictionary in the following terms: "to make worse, less valuable, or weaker, to lessen injuriously; to damage, injure." As Gray J (at 880) noted in the same case: "The degree of impairment which must be shown to be a likely result is, in my opinion, a degree of impairment going beyond a trifling or minimal impairment." Young CJ said (at 872) it was not sufficient to prove the relevant impairment that there were feelings of resentment among those whose information was given in confidence:

"at having the confidence arbitrarily destroyed by the operation of the legislation, but it is another thing altogether to say that they or others will not provide such information in future. It is not sufficient to show that some people may be inhibited from reporting so frankly if they know that their report may be disclosed. More is required to satisfy the onus cast upon the agency by s 55 (2) of the Act."

Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366

1. The final exemption relied on is the one established by Section 38 of the Freedom of Information Act 1982. That section provides as follows:
   1. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

1. The 'enactment' said to prohibit the disclosure of information is the Taxation Administration Act 1997. Section 91 of that Act provides as follows:
   1. Prohibition on certain disclosures of information by tax officers

(1) A person who is or was a tax officer must not disclose any information obtained under or in relation to the administration or execution of a taxation law, except as permitted by this Part.

Section 130A applies to an offence against this subsection.

(2) For the purposes of the Freedom of Information Act 1982, information referred to in subsection (1) is information of a kind to which section 38 of that Act applies.

1. It is also appropriate to consider Section 92 of the same statute which provides, inter alia:
   1. Permitted disclosures to particular persons

(1) A tax officer may disclose information obtained under or in relation to the administration of a taxation law -

(a) with the consent of the person to whom the information relates or at the request of a person acting on behalf of that person;

1. The Section 38 exemption was intended to cover a situation where, at the time of the introduction of the Freedom of Information Act in 1982, there was a large structure of pre-existing legislation including many secrecy provisions. Section 38 provided for the interaction of the Freedom of Information Act with those superseded provisions. Difficulty and debate arose with respect to Section 38 and its analogue in the Commonwealth Freedom of Information Act in determining how 'specific' the prohibition needs to be and the precise purport of the reference to 'information of that kind'. In the present instance these issues appear to be resolved by Section 91(2) of the Taxation Administration Act being an enactment post-dating the Freedom of Information Act. The balance of Section 92(1) is a reference to a large number of Government authorities and statutory schemes, none of which appears to be relevant to the present proceeding.
2. I turn then to the documents.

1. The first document designated in the schedule of disputed documents as E52 is described as 'email correspondence between SRO officers with two internal memoranda attached'. The document is in the form of the agenda for a meeting of the State Revenue Office Litigation Committee. The relevant papers attached are a memorandum to the committee and a copy of a letter dated 28 March 2011 forwarded by registered post to Mrs Graze.
2. This letter is a Notice of Determination disallowing Mrs Graze's objection. Since this document is already 'in the open' as far as Mrs Graze is concerned, it is not evident to me why it should be regarded as exempt. To the extent that we regard Document E52 as a single document, it is subject to the provisions of Section 25 of the Freedom of Information Act such that it may be edited so as to remove exempt material. Given that the Notice of Determination has already been forwarded to Mrs Graze it would seem to me to be pointless for me in exercise of a power under Section 25 of the Act to order its release now in this proceeding. Accordingly, I simply put it to one side and consider the balance of the document.
3. According to the affidavit by Ms McClelland, the Principal Solicitor of the Legal Services Branch in the State Revenue Office, the internal memorandum 'was prepared by an officer of the SRO, being a solicitor in the Legal Services Branch'. She said that the documents generally disclose the solicitor's legal opinion, advice and recommendation and

represent an integral part of the SRO's pre-litigation deliberative and consultative process. The documents also contain handwritten markings and notes that disclose thought processes of officers of the SRO'.

1. She said that the document disclosed issues of some sensitivity 'between a solicitor in the Legal Services Branch and senior officers of the SRO for pre-litigation deliberation and consultation'. If documents of this sort were disclosed, she said

the solicitors may feel constrained in expressing their views in an open and forthright manner in the preparation of similar documents in future.

1. She noted that the memorandum was marked 'strictly private and confidential - subject to legal professional privilege'. The dominant purpose of the creation of the document was the provision of legal advice to senior officers of the State Revenue Office. The memorandum itself, in my view, clearly falls within the compass of the exemption created by Section 32(1) as being a document brought into existence for the dominant purpose of providing legal advice to the Commissioner. No step has been taken which could constitute a waiver within the principles described by the High Court in Mann v Carnell. The agenda likewise encapsulates legal advice intended by a legal practitioner to the Commissioner for consideration by him and his officers and falls within the Section 32 exemption.
2. The document is exempt from release under Section 32(1) of the Freedom of Information Act 1982. In the circumstances it is unnecessary for me to consider the other two exemptions which are relied upon relative to this document, namely Section 30(1) and 38.
3. The next document is designated 'E15' and is described as 'email correspondence between SRO legal officer and SRO officer'. According to Ms McClelland, the document dated 10 November 2011 contains email correspondence between solicitors in the Legal Services Branch and constitutes opinion, advice and recommendation by an officer of the State Revenue Officer to another officer. She said it arose out of a mentor relationship which 'provides, amongst other things, an opportunity for a one-on-one consultation between solicitors of the Legal Services Branch, and allows a more senior solicitor to assist and supervise a solicitor who has carriage of a matter in considering and deliberating on the issues raised.' She said the matter consisted of 'sensitive and confidential material', continuing:

I believe the release of such material, including the presence of real or perceived differences of views between solicitors of the SRO, would likely have an adverse effect on the integrity or effectiveness of the decision-making process and of the mentoring process.

1. She said it would inhibit frankness and candour in the deliberative process. She said further the document included 'discussion of pending or contemplated litigation and possible actions being canvassed on the basis of possible outcomes. As such, it is of a highly confidential nature.' In my view, the evidence and the document itself demonstrates that this document is exempt from release under Section 32(1). It is the subject of legal professional privilege to the same extent as an internal memorandum within a law office acting for a private individual in which two practitioners debate the appropriate course to follow would be privileged information for the relevant client. In those circumstances I need not consider the exemptions claimed under Section 30(1) and 38 with respect to this document.
2. The next document, designated E6 is described as 'email correspondence between third party and SRO officer'. The exemptions claimed here are under Sections 35 and 38 of the Act. The document is dated 22 September 2012. It includes a short handwritten file note by a serving officer of the Legal Branch of the State Revenue Office. According to the statement of Ms McClelland:

The email correspondence discusses the sensitive issues specifically in relation to a matter which the third party had previously worked on during his employment with the SRO.

The circumstances surrounding its communication demonstrated that the document was intended to be communicated in confidence. I believe that the nature of the information included in the file note made by the officer of the SRO shows that the document was treated as such.

Disclosure of this document would be reasonably likely to impair the ability of the SRO to obtain similar information in the future.

1. The exemptions claimed for this document are under Sections 35 and 38. The premise of the claim for exemption under Section 35(1)(a) of the Freedom of Information Act is that the document would be an internal working document if it represented an exchange between officers. That is, that the document contains opinion and recommendation rather than being a factual record. What would make a document an exempt document under Section 38 is that it would contain 'information' of a kind which an enactment prohibited from disclosure. In my view, the characterisation of this document as a document of opinion or advice, rather than a document conferring information is correct. That being the case, I reject the contention that the Section 38 exemption would apply to it.
2. The statement of Ms McClelland appears to assume that to make good the exemption under Section 35(1)(a), it is necessary or appropriate to demonstrate that the disclosure of the document:

Would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. This is part of the descriptor for the separate exemption created by Section 35(1)(b) which, so far as I can see, is not the exemption invoked insofar as the submissions made by Mr Young are concerned. On the other hand, the exemption identified in the schedule of disputed documents with respect to this document is simply `Section 35' without identification of a particular paragraph. I should therefore regard the respondent as having invoked both of the two separate exemptions created by the Section.
2. Turning first then to the exemption created by Section 35(1)(a), I accept that this is a document which in a broad sense could be regarded as an internal working document if generated by one officer for the purposes of transmission to another officer. It could be regarded as part of the deliberative processes of the State Revenue Office but the Section 35(1)(a) exemption is made out only if the document would be exempt if generated within the agency. This would require the public interest component of the internal working document exemption, Section 35(1)(a) to be made out. No particular public interest argument has been articulated relative to this. In particular, this is not a situation which, on my reading of the document, raises issues as to the giving of fearless and candid advice. It merely seeks to draw attention to certain factual matters which the author believes exist which might bear on a matter before the Commissioner for consideration. In my view the exemption under Section 35(1)(a) is not made out.
3. The exemption under Section 35(1)(b) is perhaps more problematic. The communication here is from a third party and, so far as I can see, unsolicited. It might be open to question whether an agency or a Minister would be regarded as 'obtaining' information or opinions which are to be found in an unsolicited communication. The concept of 'obtaining' is however a wide one and I accept that a person may obtain information even where it arrives unsolicited.
4. The analysis by the Full Court in Ryder v Booth demonstrates that to make good the Section 35(1)(b) exemption it must be shown that the relevant information would not be forthcoming at all, not merely that it would be forthcoming in a more circumspect, less forthright manner. With some hesitation I conclude in all the circumstances of this case, that it would be proper to conclude that the agency's ability to obtain similar information would be impaired in the relevant sense and the exemption is made out.
5. Next, we turn to a document designated E8 which is described as 'internal brief prepared by SRO officer'. It is dated 7 December 2011. Exemptions for it are claimed under Section 30(1) and also Section 38. Ms McClelland describes the document as 'an in-house briefing paper prepared by an officer of the SRO to the Commissioner'. She said that the document"

Discloses the officer's opinion, advice and recommendation to the Commissioner. It represents part of a deliberative and consultative process leading up to the finalisation of a response to correspondence from the applicants.

1. It formed the basis for a response by the Commissioner to Mr and Mrs Graze which is an exhibit or annexure to Ms McClelland's statement. In my view, this is a classic internal working document. It forms part of the deliberative processes of the State Revenue Office. Having looked at the document itself, it is correctly described in Ms McClelland's statement. The outcome of the deliberative process of which this was part is to be found in the letter which the Commissioner wrote to the Grazes. What is important, therefore, is the outcome of the deliberative process. It would be confusing and inappropriate to make public something which is merely a step along the way to a final determination which has, so far as these applicants are concerned, already been made known.
2. I uphold the exemption under Section 30(1).
3. Given that this is a document of opinion and recommendation rather than a document aimed at conveying information, except insofar as the information is necessary to understand the opinion and the recommendation, I would have had some doubts as to the appropriateness of the Section 38 exemption. It is however, unnecessary to express any concluded view on that point.
4. The final sample document is designated E79. It is described as 'email correspondence between SRO officers attaching a draft letter prepared by SRO officer'. Exemptions claimed are under Sections 30(1) and 38. The final version of this letter was despatched to the Grazes dated 9 December 2011. Ms McClelland said:

I believe that disclosure of this document would likely inhibit frankness and candour in the preparation of communications and the making of recommendations in similar matters in the future.

1. I take the liberty of quoting what I said as long ago as 1996 with respect to a similar draft letter:

When one officer submits a draft to another, it is, in my view, an expression of opinion, recommendation or advice as to the appropriateness of the proposed draft. It is contrary to the public interest to disclose documents which upon due consideration, the proposed signatory has regarded as wholly inappropriate for despatch or inappropriate for despatch save in an altered form.

City Parking v City of Melbourne (1996) 10 VAR 170, 229

1. In my view, the exemption is made out with respect to this document.

1. The Grazes raised their concerns with the Ombudsman of the State of Victoria. They contended that, given the number of deaths which take place in Victoria every year (they submitted to me a printout from the Australia Bureau of Statistics indicating 33,000 deaths in the State per year), the inappropriate treatment which they said they received with regard to the 'EB' estate was likely to be systemic. They called evidence from a Mr Rooke, an accountant in public practice who said that two estates for whom he acted where the death took place in the same year, encountered the same inappropriate treatment as the estate with which the Grazes were concerned.
2. The Grazes put into evidence material from publications appearing and available in hard copy form from the State Revenue Office and on its web site which they said were either inaccurate or inconsistent with the manner in which the office treated their particular deceased estate.
3. The Ombudsman expressed himself satisfied that the State Revenue Office had 'systems' in force that would prevent systemic errors of the type alleged by the Grazes. The Ombudsman declined to devote further resources to the investigation of the matters raised by the Grazes as to systemic flaws in the operation of the State Revenue Office as to the principal place of residence exemption and trust surcharges as they bear upon deceased estates.
4. Ms Lloyd, the Manager of the Legal Branch of the State Revenue Office, said that, where particular legal issues were highlighted in the disposition of disputes arising out of objections, the litigation group considered whether any systemic action was required or whether any policies needed to be modified. These matters were taken up in a document known as a 'closing memorandum' which the committee brought into existence when a particular dispute was closed. She produced the closing memorandum for the matters involving the Grazes which had been released under the Freedom of Information Act. It indicated that the Committee was of the view that the Grazes' dispute did not raise any policy or systemic issues and the closing memorandum so stated.
5. The Grazes contended that, in the circumstances described, it was implausible to suggest that the same issues had not arisen with respect to other deceased estates and plausible to conclude that they had. They relied on the evidence of Mr Rooke which they said represented a very small sample. They made calculations which suggested that the errors that they encountered might have led to overcharges upon taxpayers up to as much as $85m. These serious considerations, they said, meant that the Tribunal should conclude that the public interest 'requires' the release of the documents which I have found to be exempt.
6. I was not given an especially elaborate citation of authority upon the concept of 'public interest'.
7. Nevertheless, the following matters seem relatively uncontroversial. In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 the Full Court of the Supreme Court of Victoria, Kaye, Fullagar and Ormiston JJ said:

There are many areas of national and community activities which may be the subject of the public interest. The statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement: cf. R v Inhabitants of the County of Bedfordshire (1855) 24 LJQB 81, at p. 84, per Lord Campbell LJ. Similarly it is necessary to distinguish between "what is in the public interest and what is of interest to know": Lion Laboratories Ltd. v Evans [1985] QB 526, at p. 553, per Griffiths LJ. On the other hand, "one feature and one facet of the public interest is that justice should always be done and should be seen to be done": Ellis v Home Office[1953] 2 QB 135, at p. 147, per Morris LJ It is this feature of the public interest, namely the appearance of justice having been done, which is inherent in the proper administration of justice.

[1991] VicRp 6; [1991] 1 VR 63, 75

1. In Chadwick v Department of Property and Services (1987) 1 VAR 444, 454 Judge Rowlands, the inaugural president of the Victorian Administrative Appeals Tribunal said:

It requires public interest factors of a high order to countervail the doctrine [of legal professional privilege] in the balancing process which must take place if there are competing public interest factors to be considered.

1. This statement was approved by the Full Court in Smith's case [1991] VicRp 6; [1991] 1 VR 63, 76. More recently, in Osland v Secretary Department of Justice [No. 2] [2010] HCA 24; (2010) 241 CLR 320, 329-30 French CJ, Gummow and Bell JJ said of the Tribunal's power to override exemptions under the Freedom of Information Act:

[14] The power to grant access on public interest grounds is not, in terms, vested in the relevant Minister or agency. By virtue of s 16 they retain their freedom to grant access to exempt documents. Rather, it is a power included in the powers conferred on the Tribunal. In this respect it is unique in freedom of information legislation in Australia. It has been called a "significant and exceptional" power and "a most extraordinary provision". These epithets do not justify its characterisation, propounded by the Secretary, as a power to be exercised only in "exceptional circumstances". Those words are not in the statutory text. Their use may misdirect the inquiry required by s50(4). They may be taken erroneously to limit the range of matters relevant to the public interest. Nor do they sit easily with the proper approach to the construction of the FOI Act, which is to "further, rather than hinder, free access to information" under it. Having said that, it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker.

1. It follows from the foregoing authoritative analyses that the public interest which may be invoked under Section 50(4) extends to matters of interest of society, generally, not merely matters of interest to a particular complainant against the actions of Government. Clearly, an egregious injustice to one individual has the potential to assume wider societal significance. The Dreyfus affair is perhaps the prime example of this; but a purely private dispute would not generally raise any issue of public interest. Again, the use of the word "requires", as Their Honours in the High Court said, erects a fairly high threshold for a claimant for access to exempt documents must climb over.
2. The Grazes said that the documents held to be exempt should be released to 'clear the air' relative to the issues which they raise.
3. I accept that if the release of documents reveals a large scale systemic problem of overcharging deceased estates of the order of magnitude alleged by the Grazes that the public interest override would properly be engaged and would properly be exercised by the Tribunal. In my view, the calculations made by the Grazes on any view, substantially overstate the size of the potential issue. First, we note that the problems encountered by the Grazes related to the length of time within which assets of a former and deceased taxpayer remained in administration. It is not clear how many of the 33,000 decedents in Victoria per year are themselves landowners. A large percentage of those that are will be joint owners. Once those persons die, their interests come to an end and the interests of the other joint owner or owners is correspondingly enlarged. The land does not form part of a deceased estate at all and so no issues of the type encountered by the Grazes relative to a deceased estate could arise. Again, in a fairly small estate where, as one imagines is the case in most families, there are no very extensive debts to clear and the dispositions are fairly straight forward, for instance the deceased's former residence is to be transferred jointly to his or her surviving children. Such a transfer out, albeit that the asset would have travelled through a deceased estate, might be made within a year to 18 months. The sort of issues arising out of more elaborate administrations which may be necessary in more complex circumstances again would not arise. More significantly however, as Mr Young submitted, the documents which are here sought are inherently incapable of shedding light on the alleged systemic problem. They pertain to the disputes which the Grazes had, they do not pertain to the disputes which the executors or beneficiaries of other deceased estates might or might not have.
4. Much material is already in the public arena or available for the Grazes to raise in public discussion their grievances against the Commissioner. The material appearing in hard copy pamphlets and on web sites is already in their possession and it is open to them to draw contrasts between what they say the true construction of the legislation then in force was and what is stated in the publications. No access to the disputed documents is required to elaborate that. Again, the closing memorandum which boldly asserts that there are no systemic or policy issues for the Commissioner to consider arising out of the matters in dispute or formerly in dispute between the Commissioner and the Grazes is in the public arena.
5. In summary, there is a wealth of material for the Grazes to debate the issues. What remains held exempt in this proceeding is inherently incapable of 'clearing the air' on the issue of how many other instances of the same sort of problems there might or might not be. In those circumstances, the public interest override does not require the release of the documents which I have held to be exempt.