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[2013] VCAT 822
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2013-05-24
Member P
Original judgment source is linked above.
(a) Section 30(i) of the Freedom of Information Act 1982 ("the Act") which exempts from disclosure what are internal working documents.
(b) Section 28(1)(d) of the Act which exempts from disclosure any deliberation of Cabinet or decision of Cabinet, other than a document by which a decision of the Cabinet was officially published.
"There has been significant public commentary on the proposed IBAC since its announcement. This commentary has included reports that the Government failed to consult with the Office of Police Integrity about legislation to enact the IBAC. The release of the requested documents goes to the matter of consultation between the Victorian Government and the OPI and is in the public interest".
(a) No longer seeks documents numbered 8 and 9 in the original schedule; and
(b) Does not seek personal information relating to non-executive staff of the Respondent.
"I am conscious of the objects of the Act as set out in section 3. I am conscious of the method of interpretation of the Act to be adopted as set out in Section 3(2). I am aware of the various authorities, which could be summarised as standing fro the propositions. That it is proper to give the relevant provisions of the Act that construction which would further, rather than hinder, free access to information, and that the Act is to be interpreted
generally in favour of access, but not go as to override specific provisions. I am also aware of the proposition that the DOJ bears the onus of proof in attempting to establish that the documents are exempt documents. I am conscious of various statements made from time to time by those on both sides of Parliament concerning the desirability of there being openness and accountability in Government and by agencies. I have borne the above matters in mind, and have applied them in coming to a decision in the present case".
Evidence - Respondent and Applicant's General Position
(a) Witness Statement of Anthony Lowrie, former Public Servant sworn 12 March 2013.
(b) Witness Statement of Chantelle Renn, Public Servant and Acting Director of the Cabinet Secretariat in the Department of Premier and Cabinet dated 8 March 2013.
(c) Witness Statement of Dean Yates, Deputy Secretary, Policy and Cabinet Group in the Department of Premier and Cabinet dated 8 March 2013.
The three witnesses all subsequently gave sworn evidence. The Applicant's Counsel Mr Belmar cross examined each witness.
General Grounds that the Respondent relies upon exemption
(a) Section 28(1)(ba) applies to Documents 1, 2 and 3 being documents prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet.
(b) Section 30(1) which applies to all documents being internal working documents.
(c) Section 31(1)(d) which relates to part of Document 4 being a document if released would disclose methods or procedures for preventing, detecting, investigating or dealing with matters arising and of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.
(d) Section 32(1) which applies to part of Document 4 being a document privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
The Act recognised the general principle that Cabinet deliberations should not be disclosed.
"When the Act was introduced in 1982 the then Premier John Cain emphasised that the "Cabinet Oyster" must be protected as "good decision making in the Westminster transition demanded it".
Under accepted principles of Westminister Government it is vital that the decision making processes of Cabinet be able to operate freely and without fear of premature or irresponsible disclosure.
In terms of freedom of information that means it must be absolutely beyond doubt that any Cabinet document exemption will provide complete protection from release of all documents connected with the deliberations of Cabinet.
The Bill makes the important distinction between the confidentiality attached to Cabinet documents and information of a purely statistical, technical or scientific nature. The latter documents will not attract Cabinet exemption unless they disclose the deliberation of Cabinet".
"However the following principles have clearly emerged concerning the exemptions in paragraphs (b) and (ba) of Section 28(1) of the Act;
"In interpreting and applying Section 28(1)(ba) the following considerations are relevant:
The general principle referred to above that documents should be available to the public unless an exemption applies.
That the FOI Act is remedial legislation and where ambiguity is encountered the rights given by the Act should be construed liberally and exceptions narrowly (Ryder v Booth (1989) VR869 at 877)".
(a) The first limb being that a document was prepared for the purposes of briefing a Minister.
(b) The second limb being that the briefing of the Minister was in relation to an issue that was, as assessed objectively at the time the briefing occurred, an issue that was to be considered by Cabinet.
"....In this case the purpose for which the document must be prepared to be an exempt document is the purpose of "briefing" a minister in relation to issues to be considered by Cabinet. It is not enough for a document to be exempt for it to be placed before a minister and be in relation to issues to be
considered by the Cabinet. Rather it is necessary that it be prepared for the purpose of briefing a minister; and this means much more than for the purpose of placing a document before a minister. In general parlance the word "briefing" means a short, accurate summary of the details of a plan or operation. The purpose of a briefing is to inform the person being briefed. Hence the exemption ought to be limited to the documents that have the character of briefing material. Generally a document will have such a character if it contains information or advice and is prepared for the purposes of being read by, or explained to, a minister. However a document will not have the character of briefing material merely because the document was prepared with intention of physically placing the document before a minister".
(a) I accept Ms Renn's evidence that Document 1 was not submitted to Cabinet or the Sub-Committee of Cabinet.
(b) I accept that Ms Renn reviewed the agenda, relevant Cabinet submissions and minutes of the meeting of the Cabinet and the Sub-Committee of Cabinet held on 6 and 13 December 2010, 5, 17 and 31 January 2011, 14 April 2011, 30 May 2011, 14 and 22 June 2011, 25 July 2011 and 21 November 2011 as well as the submissions submitted to the Cabinet and the Committee for those meetings and that the issues which the Cabinet or the Committee were scheduled on those dates and future dates to be considered included the same topics which were raised by the Director of the Office of Police Integrity (OPI) Mr Strong in Document One.
(c) That Document One has the character by which Mr Strong has sought to both inform and instruct the Minister of matters relating to the operation of the OPI that Mr Strong considered relevant to the establishment of the Anti-Corruption Commission. This includes the attachment being the incoming Government brief about the OPI.
(d) While the first 2 and half lines of Document One related to congratulating the Minister on his appointment, it is clear that Document One was prepared for the substantial purpose of briefing the Minister.
(a) I accept Ms Renn's evidence namely that Document 2 was not submitted to Cabinet or the Sub-Committee of Cabinet.
(b) I accept that Ms Renn reviewed the agenda, relevant Cabinet submissions and minutes of the meetings of Cabinet and Sub-Committee of Cabinet held on 5 January 2011, 30 May 2011 and 25 July 2011 and
that the issues which the Cabinet or the Committee were scheduled on those and future dates to consider including the same topics that had been raised by the Director of OPI in Document Two.
(c) Document Two has the character by which Mr Strong has sought to both inform and instruct the Minister of matters that Mr Strong considered relevant to the establishment of the Anti-Corruption Commission. This includes both attachments being an OPI organisational structure chart dated 1 December 2010 and a summary of the responsibilities of the OPI Director.
(a) I accept Ms Renn's evidence namely that Document Three was not submitted to Cabinet or the Sub-Committee of Cabinet.
(b) I accept that Ms Renn reviewed the agenda, relevant Cabinet submissions and minutes of the meetings of the Sub-Committee of Cabinet held on 17 and 31 January 2011, 14 April 2011, 30 May 2011, 25 July 2011 and 21 November 2011 and that the issues which the Committee was scheduled on those and future dates to consider included the same topics that had been raised by the Director of OPI in Document Three.
(c) Mr Lawrie in his Affidavit dated 12 March 2013 refers to Document 3 as dismissing particular issues concerning the establishment of IBAC. Those issues include the Director of OPI's opinion and advice as to matters that should be taken into account in the development of IBAC. The language of the correspondence is direct and candid. What was stated by Justice Buchanan in Secretary, Department of Treasury and Finance v Dalla-Riva (2007) VAR96 at 100 (paragraph 13) is relevant with respect to Document Three. His Honour states:
"....The purpose identified in the relevant paragraph of S28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in section 3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view, as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, "the power would not have been exercised" I do not think that the Act requires release of a document disclosing material considered and dealt with by Cabinet merely because the document which was principally prepared for submission to Cabinet or to brief a minister in relation to Cabinet issues, also served another purpose or purposes":.
Documents 1, 2 and 3 - Second Limb in relation to issues to be considered by Cabinet
"In my view the section (referring to S28(1)(b)) does not require proof that a document was actually submitted to Cabinet. The focus is on the purpose of preparation of the document, not it trajectory after preparation, although its ultimate destination will, in most cases, assist to illuminate the purpose".
"I accept Mr Batskos' submission that as long as the terms of S28(1)(ba) are satisfied, the effluxion of time does not prevent it from applying. Nor is it necessarily fatal that no decision had been formally made that this matter would be taken to Cabinet. However, I find that in the uncertain circumstances in the initial meeting with the Minister in February 2011 described above, it cannot objectively be concluded that these documents were prepared for the purposes of briefing the Minister in relation to issues to be considered by Cabinet in the sense required by S28(1)(ba). These documents were simply too early in the process and the circumstances were too uncertain for them to fall within the expanded concept of Cabinet documents in S28(1)(ba)".
Here given both the evidence of Ms Renn and Mr Lawrie I accept that:
(a) Cabinet and/or the Sub-Committee of Cabinet regarded the establishment of IBAC as a priority.
(b) That the current Government had when it won the State election and was sworn in on 2 December 2010, immediately created a new portfolio being the Minister Responsible for the Establishment of an Anti-Corruption Commission which Mr Lawrie termed as being "a task specific Ministry in the new Government".
(c) The initial correspondence from the Director of OPI was contemporaneous with the swearing in of the new Government.
"The phrase "in relation to" is apt in my view, like a number of other similar phrases such as "in respect of" or "with respect to", merely to denote a relationship between two subject matters. A briefing as to the means of bringing issue and before the Cabinet in my view certainly relates to issue X, even though it does not canvass the substance of that issue".
"The efficient and economical conduct of government, protection of the deliberative processes of government, particularly at high levels of Government and in relation to sensitive issues, and the preservation of confidentiality so as to promote the giving of full and frank advice".
(a) an opinion, advice or recommendation prepared by an officer or Minister; or
(b) a consultation of deliberation that has taken place between officers, Ministers, or an officer and a Minister
and the second condition which must be established as is contained within Section 30(1)(b) is based upon the criterion of public interest. Both conditions must be satisfied.
35(a) The term "officer" is defined in Section 5 of the Act and includes in relation to an agency, a member of the agency, a member of the staff of the agency and any person employed by or for the agency whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not.
(b) "Officer" has been broadly defined to include "servants of the Crown who are appointed by the Governor-in-Counsel and holders of public office" per J Preuss Member in re Cole and Department of Justice (1994) 8 VAR 114 at 127.
(c) The former Director of OPI is therefore an "officer" for the purposes of the Act.
"To qualify for the exemption the "matter in the nature of an opinion, advice or recommendation" must have been prepared by an officer for the purposes of or in the course of "deliberative processes" of the relevant agency or be in the nature of "consultation or deliberation".
"The action of deliberating in common understanding involves the weighing up an evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the process of reflection, for example upon the wisdom and expediency of a proposal, a particular decision or a course of action...".
(a) His Honour Judge Fagan in Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483 at 488 set out a number of pertinent matters including inter alia:
(i) the right of every person to obtain access to documents or provided by S13 of the Act;
(ii) the stage of the policy development process at which the communication was made;
(iii) whether disclosure would be likely to inhibit frankness and conduct in the making of communications;
(iv) whether disclosure would lead to confusion or unnecessary debate having regard to the possibilities discussed;
(v) the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them;
(vi) the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation.
(b) That the more sensitive or contentious the issues involved in the communications, the more likely it is that the communication should not be disclosed. Landes v VicRoads (2009) VCAT 2403 at paragraph 47 per Deputy President Macnamara:
"In the present case I accept the submission that if the Minister has sought opinion, recommendation ad advice from VicRoads through its Chief Executive on a highly sensitive and contentious issues this is significant as to where public interest lies. If under the Freedom of Information Act it were generally possible for critics of a Government to trawl through the advice which a Minister received in those circumstances with a view to detecting consistencies or inconsistencies between what a Government has done and what advice it has received, or perhaps seeking some support for some of the criticisms made in the advice which the Minister has received, the ability of Ministers to obtain that sort of advice would be prejudicial".
(c) Her Honour Judge Hampel in Friends of Mallacoota Inc v Department of Planning and Community Development (2011) VCAT 1889 at paragraph 51 including inter alia:
(i) Regard must be had to both the nature of the information and the nature of the document.
(ii) Draft internal working documents or preliminary advices and opinions are more generally than not be inappropriate for release. This is particularly so when the final version of the document has been made public.
(iii) It is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill informed debate, to give a spurious standing to such documents or promote pointless and captions debate about which might have happened rather than what did.
(iv) Decision makers should be judged on the final decision and their reasons for it, not on what right have been considered or recommended by others in preliminary or draft internal working documents.
(v) It is contrary to the public interest to disclose documents that would have had an adverse effect on the integrity or effectiveness of a decision-making investigative or other process.
(vi) Further in paragraphs 53, 55 and 56 Judge Hampel added:
- Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision making process.
- Public interest concerns the interests of the public as distinct from the interests of individuals.
- Public interest must be considered document by document.
- The risk of political criticism is not in itself a public interest argument against disclosure and that considerations such as the sensitivity of the subject matter or its potential to confuse or mislead, had to result from something more than a general discomfort about making information available to those who might wish to criticise a government decision.
(a) That disclosure of the documents in dispute would not advance, promote or further the asserted public interests in disclosure to be relied upon by the Applicant.
(b) Alternatively the Respondent contends that the Applicant's asserted public interests are not; either considered alone or cumulatively, sufficiently strong so as to override the factors that confer exempt status on the documents.
(a) Public interest is served by open and accountable government and in particular in access to information held by government.
(i) By confidence in the development and considered public sector anti-corruption measures; and
(ii) By the ability of IBAC to successfully investigate and prosecute public sector corruption.
(c) that post the 2010 Victorian election the implementation of IBAC has been of significant public interest with ongoing public debate concerning the extent to which IBAC has met the pre-election commitments made by the Victorian Coalition. The pre-election commitment was contained in a pre-election policy document.
(d) Public interest is served by determining that the legislative and operational basis of IBAC was established and formulated without regard to political considerations or private interests and in accordance with prior commitments and undertakings by the Minister and Government.
(e) In the pre-election policy document at page three it was stated "IBAC will be modelled most closely on New South Wales Independent Commission Against Corruption (ICAC) which was one of the first of its kind to be established anywhere and has been a world leader for over 20 years. "It is submitted that the legislation establishing IBAC falls short of the powers possessed by ICAC by prohibiting the investigation of Government Ministers and police personnel, limitations on the use of investigative powers and the absence of a Parliamentary committee with oversight responsibilities for IBAC.
(f) The public interest is served by demonstrating that any concerns held by officers of predecessor organisations to IBAC were considered and acquitted by the Minister. There has been significant public debate regarding the decision to incorporate into IBAC those predecessor organisations, to disband the OPI and the lack of consultation relating to the transfer of powers previously held by the Victorian Ombudsman to IBAC.
(g) The public interest is served by the orderly and effective transition of anti-corruption powers from OPI to IBAC and in accessing information that records the transition.
(h) The public interest is supported by an improved understanding of the reasons for the delays experienced by the Government in the establishment of IBAC and the nature of the delay.
(i) That the public interest is enhanced by informed debate about the system of public sector anti-corruption measures in Victoria.
(j) There is public interest concerning the extent to which the powers of IBAC and the burden of proof required to initiate an IBAC investigation regarding the departure of Chief Commissioner Overland were the subject of consideration and/or communication between the Director of OPI and the Respondent.
(k) That public interest is supported by maintaining or alternatively restoring public confidence in the integrity of the Victorian anti-corruption regime.
(l) The public interest is served by releasing documents to enable the Victorian community to fully assess the extent to which IBAC development process fully accounted for the concerns and input of being themselves.
(m) Public interest is enhanced by "clearing the air" in circumstances where there are widespread and significant concerns about the powers and jurisdiction of IBAC.
(a) The Victorian Liberal Nationals Coalition Plan for Integrity of Government.
(b) The Age article dated 16 September 2011 headed "Police Watchdog Closure Criticised".
(c) Letter from Victorian Ombudsman to Hon. Ted Baillieu MP Premier dated 26 November 2013.
(d) The Age article dated 1 December 2011 headed "Corruption fight weakened by OPI resignation, Watchdog director and deputy quit".
(e) The Australian article dated 22 December 2011 headed "OPI hires transition trouble shooter".
(a) Regular reporting to the Minister's office as to progress on preparatory steps;.
(d) Overseeing research on similar commissions interstate and a literature review to inform briefings;
(e) Contributing to IBAC, Victorian Inspectorate and Public Interest Monitor Legislative and policy development process including personally considering papers prepared by OPC for consideration by a sub-committee of Cabinet and Cabinet are providing advice to Justice Ministers;
(a) Was aware of each of the documents in his former role as project Director and based upon his knowledge of the role of a sub-committee of Cabinet and Cabinet in developing the IBAC legislative and policy framework and his preparation of Cabinet submissions related to these issues, he was of the view that some of the issues raised in the letters were considered by Cabinet or the sub-committee.
(b) That all of the documents which are letters sent by Mr Strong to the Minister are letters seeking to provide the Minister with information about the structure, role and staff of OPI and advising the Minister about issues relevant to the establishment of IBAC.
(a) The letter itself is from Mr Strong to the Minister dated 2 December 2010. The first two and a half lines provide Mr Strong's congratulations. The remainder of the letter provides to the Minister an outline of the OPI's performance and its experience in the exercise of its co-oercine powers. The letter deals with issues relating to the Government's policy to create IBAC and to subsume the OPI into it. The document contains opinions and advice of Mr Strong to the Minister and is private communications between Senior Government figures. To Mr Lawrie's knowledge the policy issues the letter addresses were still to be resolved by Government.
(b) The first attachment is headed Incoming Government Brief and is dated December 2010. The document is marked "Operational-In-Confidence" and according to Mr Lawrie the purpose of the document was to advise the Minister in detail of the DOJ's functions, operations, finance and staffing. There is reference to IBAC in the document.
(c) The remaining two documents are an organisational chart for OPI and a budge for the financial year 2010/11 for OPI as at 30 September 2010. Mr Lawrie contends that these documents form part of the Director of OPI's briefing to the Minister.
(d) Mr Lawrie is of the view that Document One because the sub-committee of Cabinet had oversight of the development of IBAC's policy and legislative framework and the documents were policy issues raised by the Director of OPI being that body that existed that most closely approximated the proposed role of IBAC were the type of documents that fell within the remit of that sub-committee and also given that extent of those issues resolved by legislation, Cabinet would have considered them.
(a) Document 2 is a letter from the Director of OPI to the Minister dated 1 December 2010. It discusses several issues concerning the establishment of IBAC in particular informing the Minister about specific matters relating to OPI and the transition to IBAC so that these matters could be taken into account regarding the policy development of IBAC.
(b) To Mr Lawrie's knowledge the policy issues that the document addresses were at that time still to be resolved by the Government. The documents contains the opinion and advice of the Director and is written in a direct and candid way. It constitutes a private communication between Senior Government figures.
(c) There are two documents attached to the letter. The first is an organisational chart for OPI and the second sets out objects, responsibilities and functions of the OPI Director. The documents form part of the advice to the Minister. The second document reflects the Director's opinion his functions and responsibilities.
(d) Mr Lawrie puts Document 2 in the same category as Document 1, regarding its nature and purpose.
(a) Document 3 is a letter from the Director of OPI to the Minister dated 7 January 2011. The letter discusses particular issues concerning the establishment of IBAC.
(b) Mr Lawrie put forward the same rationale as Document 2 regarding the nature and purpose of the document.
(a) Document 4 is a letter from the Director of OPI to the Minister dated 4 March 2011. Attached to that letter is a copy of an additional letter sent by the Director to the Deputy Premier Mr Ryan also dated 4 March 2011.
(b) the letter to the Deputy Premier discusses timing of the transition to IBAC and issues concerning deficiencies in the OPI's legislative framework which it is suggested need to be addressed while the OPI continues to operate and should not be replicated in relation to IBAC.
(c) The letter informs the Deputy Premier of specific concerns that the Director had regarding the operations of the OPI and the prospect of similar issues affecting IBAC. The letter has opinions and advice of the Director, constitutes a private communication between senior Government figures and is written in a direct and candid manner. The letter contains information on each page with respect to discussions in shortcomings in respect to legislation relevant to the law enforcement activities of the OPI including the impact of those laws on OPI surveillance operatives.
(d) Mr Lawrie provided input into a DOJ briefing to the Deputy Premier on issues raised in the letter. He believes that the DPC considered the issues in the letter in the IBAC legislation and policy development process.
(e) Document 4 contains legal advice from the Victorian Government Solicitors office to the OPI.
(a) Document 5 is a letter from the Director of OPI dated 20 July 2011. the letter discusses the timing of the transition to IBAC.
(b) The letter contains the opinion of the Director, is a private communication between senior government figures and is written in a direct and candid way.
(a) Document 9 is a letter from the Director of OPI to the Minister dated 18 October 2011. The letter discusses the use of telephone intercept and other special investigative powers used by the OPI in the context of the Public Interest Monitor.
(b) In the document there is only one sentence that relates to IBAC and that is contained within the fourth paragraph of the letter. That sentence contains the personal opinion of the Director provided to the Minister.
(c) That the document including the sentence in the fourth paragraph is private communications between two senor government figures and is written in a direct and candid way.
(d) Mr Lawrie's opinion is that the first sentence in the letter referring to a letter dated 13 October 2011 from the Minister received by the OPI Director relates to the Public Interest Monitor and not IBAC. Mr Lawrie has viewed this letter.
(a) On line 2 he replaced "Stakeholders Reference Group" with "Anti Corruption Implementation Project" and
(b) deleted the words from the last sentence being "and was a forum for high level input from key stakeholders external to the Department of Justice".
68(a) The project was supported by DOJ but involved Deputy Secretaries of other Departments. It first met in April 2011. Mr Lawrie attended the meeting as project manager.
(b). Mr Yates was aware of IBAC during the election campaign. There was general monitoring of IBAC for budget policy reasons.
Government's decisions or deliberations about IBAC. They cannot therefore assist the public to understand the policy development process and the Minister's/Cabinet's decisions concerning the establishment of IBAC and issues relating to OPI. The documents do not reflect all of the information provided to the Minister or Government on the issue and release may mislead the public.
(a) That Document 1 was created to provide information for a process.
(b) He agreed that the purposes for creation of a document can be varied.
(c) That specialist advice is better to be formal and in writing and given in a candid but formal way. Mr Yates presumed that the Director of OPI considered the correspondence to be personal but did it in the knowledge that freedom of information existed.
(d) That Mr Lawrie in his evidence did not provide an example of where there was an misleading in the documents.
(e) That in the early stages of development of public policy there can be twists and turns.
(f) A person in communication with a Minister should be shifted in the giving of advice.
(g) Generally written advice is preferable because it is more considered and more time is taken to prepare it. Oral advice can be adhoc.
(a) That the period for which the documents are sought between 2 December 2010 and 31 December 2011 is virtually the first twelve months of when the Government assume office, it having been elected on 27 November 2010.
(b) That a key election matter and policy priority for the Government was the establishment of IBAC.
(c) That the Government at the time it was sworn in on 2 December 2010, immediately created a new portfolio being the Minister Responsible for the establishment of an Anti-Corruption Commission. As Mr Lawrie described it, this portfolio was task specific.
(d) That both Mr Lawrie and Mr Yates in their respective roles as Project Director of the Anti-Corruption Commission Implementation Project ("ACIP") and as Deputy Secretary, Budget and Financial Management, Department of Treasury and Finance/Member Stakeholder Defence Group in respect of the establishment of an independent broad based anti-corruption commission had the ability to give evidence both as to the specific and general contexts through which the documents cane into existence, although Mr Lawrie did concede that he was not the author of the documents and that his evidence was in part his opinion/view of the author's intention. Mr Lawrie at that point apart from the author was one of the people in the best position to express that view. Importantly also Mr Yates who had viewed the documents was able to put the documents into a general context.
(e) Ms Renn's evidence was important with respect to the Respondent's position as to the Section 28(1)(ba) exemption relied upon by the Respondent with respect to Documents 1, 2 and 3. I accept that Ms Renn was a truthful witness. No inroads were made into her evidence upon cross examination.
Given my findings with respect to Section 28 in relation to Documents 1, 2 and 3, the public interest argument has no relevance to these documents.
(a) The document discusses timing issues of the transition between OPI and IBAC.
(b) The document raises specific issues concerning legislative deficiencies in the OPI's legislative framework which needed to be addressed during OPI's operating time and should not be replicated with IBAC.
(c) It contains advice from the Director of OPI about specific operational concerns with IPI and the prospect of similar potential issues with IBAC.
(d) That Mr Lawrie was part of a DOJ briefing to the Deputy Premier with respect to issues raised in Document 4. These issues were considered in the IBAC legislation and policy development process. Document 4 is a working document.
The document came into existence on 4 March 2011. The document refers to the advice having been recently obtained without specifying a date. Here the document at least in part attracts legal professional privilege because it contains confidential communication between the client and/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. Further a document prepared by a client is privileged if it records as in this instance legal advice given to that client by their lawyer.
85(a) The Respondent pursuant to S31(1)(d) of the Act claims exemption with respect to part of Document 4 upon the grounds that disclosure under the Act would or would be reasonably likely to disclose methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would be reasonably likely to prejudice the effectiveness of those methods or procedures.
(b) These I am satisfied that the document refers to OPI operational deficiencies within the legislative framework of OPI of which it was suggested there be a need to address and a detailed/reasoned suggestion that these issues should not be replicated with IBAC. I find that the part of the document insofar as it relates to these matters comes within the Section 31(1)(d) exemption. Additionally this part of the document is inextricably tied up with the legal professional privilege aspect of the documents.
I agree with both Mr Yates and Mr Lawrie's evidence that Document 5 constitutes a private conversation between communication between senior government figures and that people in the position of the Director of OPI should not be inhibited from contributing to the policy formulation process and that confidentiality of their contribution ought to be assured.
Having regard to the provisions of Section 30 and the balancing of the public right of access to documents against the protection of sensitive issues and the preservation of confidentiality I find that Document 5 is an exempt document.
Paragraphs 2 an 3 of the document are an expression by the Director of the general standing of the OPI. I do not accept that there is anything said in those paragraphs which relate to either sensitive issues or confidentiality or forms any part of the deliberative process of Government. Pursuant to Section 25 of the Act I accept that paragraphs 2 and 3 of Document 9 should be released. The paragraphs themselves can stand alone and be read without any mischief created.
90(a) The term "public interest" is not defined in the Act nor does the Act expressly limits what matter are relevant to it. Osland v Secretary of the Department of Justice (2010) 24 CLR 320 at paragraph 13.
(b) "Public Interest refers to the benefit of the Community in general, not the benefit of the individual, much less the curiosity of any individual" - Just v Department of Justice (1996) 10 VAR 126 at 129.
(c) I accept what was stated by Senior Member Smithers in The Herald and Weekly Times Pty Ltd v Department of Premier and Cabinet (2013) VCAT 250 at paragraph 87 when referring to Section 50(4) - "it is not enough for the override to be invoked that access to documents could be justified in the public interest. A "high threshold" public interest must be identified. In XYZ v Victoria Police (2010) VCAT 255 at [575] Bell P said:
"The proper application of the public interest override requires me to identify and balance the countervailing public interest considerations and then to consider whether the considerations in favour of disclosure are to strong as to override the considerations against disclosure particularly the interests protected by the exemptions. The public interest considerations in favour of disclosure must be so strong as to convincingly demand or necessitate release. The Tribunal does not simply decide whether it is in the public interest for documents to be released - the public interest must 'require' release in the emphatic sense in which that term is used":.
(a) The Victorian Liberal National Coalition Plan for Integrity of Government.
(b) Letter from Victorian Ombudsman to the Premier dated 20 November 2012.
(c) Article from Age Newspaper dated 1 December 2011.
(d) Article from the Australian Newspaper dated 22 December 2011.
The Applicant also submitted a statement of public interest grounds as did the Respondent.
In this proceeding the public interest grounds submitted by the Applicant with respect to Section 30 are the same as those in relation to Section 50(4).
As Mr Belmar for the Applicant rightfully conceded. If the Applicant's public interest grounds did not get over the line with respect to Section 30, then with the higher threshold with respect to Section 50(4) there is no basis for the Applicant to succeed.
Hennessy
Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor
(2010) 24 CLR 320