Department of Innovation, Industry and Regional Development

1. Within thirty (30) days the following documents be released to the applicant:

(a) Documents 1 and 2, being brief from Neil Edwards to the Premier and Minister for State and Regional Development;

(b) Document 5, being brief from Max Roger to the Minister for Innovation (with the deletion of Attachment 4).

2. In all other respects the decisions of the respondent are affirmed.

Mr D Williams, instructed by Messrs Juliano Furletti & Scott.

1 By two proceedings, which were heard together before me, the applicant seeks a review of decisions of the respondent. The first of those decisions was made on 17 June 2003 and gives rise to proceeding G1095/2003. The second decision was made on 14 July 2003 and gives rise to proceeding G1233/2003. In each case the applicant seeks a review of a refusal to grant access to various documents. The applications come before this Tribunal pursuant to Section 50 of the Freedom of Information Act 1982 ("the Act").

2 The documents to which access is sought are documents relating to a project being undertaken by the Victorian Government, through the respondent, to build a Synchrotron. Exhibit "1" in the proceeding is entitled "Australian Synchrotron - National Science Case for the Initial Suite of Beamlines. In the Executive Summary, on page 1 of the exhibit, a Synchrotron is described in these terms:

"A Synchrotron is a large machine (about the size of a football field) that accelerates electrons to almost the speed of light where they have a very high energy level. As the electrons are deflected around the storage ring, they give off beams of extremely intense radiation (light) that run tangentially from the machine. These beams are captured in specially designed beamlines and are then used to perform many different types of experiments simultaneously."

3 The Honourable John Brumby MP, Minister for Innovation, in the same exhibit, stated:

"Victoria is deeply committed to promoting Australian excellence in research and development. We are very proud to have provided $157 million - three-quarters of the capital cost - for the Australian Synchrotron. Although this is the largest ever investment by an Australian State Government in innovation infrastructure, we are determined that the Australian Synchrotron will serve universities, research organisations and industry throughout this Nation."

4 In the table set out below, is a summary of the seven documents for which exemption has been claimed by the respondent.

Brief from Neil Edwards, Secretary, Department of State and Regional Development, to the Premier, Steve Bracks MP and to John Brumby MP, Minister for State and Regional Development, re: Australian Synchrotron Project. (Endorsed by John Brumby MP on 20/06/01). (Released in part).

Brief from Neil Edwards, Secretary, Department of State and Regional Development, to the Premier, Steve Bracks MP and to John Brumby MP, Minister for State and Regional Development, re: Australian Synchrotron Project. (Endorsed by Steve Bracks MP on 21/06/01). (Released in part).

Brief from John Neve, Australian Synchrotron Project, to John Brumby MP, Minister for Innovation, re: Australian Synchrotron Project.

S.34(4)(a)(ii)

Macquarie Bank Reports on the Australian Synchrotron Project, comprising:

S.29(a) & (b)

S.34(4)(a)(ii)

Brief from Max Roger, Interim Project Director, Australian Synchrotron Project, to John Brumby MP, Minister for Innovation, re: Australian Synchrotron Project.

S.34(4)(a)(ii)

Macquarie Bank Report, The Arranging of Funding for the Synchrotron Project.

S29(a) & (b)

S.34(4)(a)(ii)

Brief from John Neve, Manager Australian Synchrotron Project, Science Technology and Innovation Division, to John Brumby MP, Minister for Innovation, re: Australian Synchrotron Project, attaching draft submission to the Economic Development and Infrastructure Delivery Committee of Cabinet, with attachments 1 to 10.

S.29(a) & (b)

S.34(4)(a)(ii)

5 It will be noted that Documents 1 and 2 are identical in their terms. Significant parts of these documents have been released to the applicant.

6 By Section 3 of the Act, a single object is expressed, which is identified as operating to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies for certain public purposes. By Section 3(2), interpretation of the Act is expressed to be exercised as far as possible to facilitate and promote the disclosure of information. By Section 55 of the Act, the respondent bears the onus of satisfying the Tribunal that its decision that a document be treated as an exempt document is justifiable.

7 In relation to each of its decisions that the documents were exempt documents under the Act, the respondent variously relied upon a number of sections in the Act. The sections relied upon in relation to each document are set out in the column on the right hand side of the chart, set out above.

8 Section 28 relates to Cabinet documents and, by 28(1)(a) to (d), the range of documents described as Cabinet documents is identified. It is to be noted that the reference to Cabinet in the section includes a committee or sub-committee of Cabinet. What appears in other sections of the Act and is habitually described as the public interest override, does not appear in Section 28, nor does it have any application to that section.

9 Section 29 creates an exemption for documents which may, for the sake of brevity, be referred to as documents which are confidential to, or would prejudice relations between the State and the Commonwealth or other States or Territories. This section does contain a public interest override.

10 Section 30 creates exemption for documents prepared to provide opinion or advice or recommendation by a Minister or Officer of the Department. This section contains a public interest override.

11 Section 34 of the Act provides that any document is exempt from disclosure if it would disclose information acquired from a business undertaking related to trade secrets or business commercial or financial matters, the disclosure of which would unreasonably disadvantage the Agency or Minister. Again, with this section, there is a public interest override.

12 On the hearing of the matter, a considerable amount of oral evidence was called.

13 To establish that the documents were exempt documents, Ms Richards of counsel, after having opened the respondent's case, called David Hanna, the Acting Deputy Secretary of the Respondent; John Neve, the Principal Project Officer of the Australian Synchrotron Project, within the respondent Department; and Max Roger, the Project Manager of the Australian Synchrotron Project, within the respondent Department. Witness statements were tendered as exhibits and, in relation to each witness, his witness statement formed the basis for his evidence-in-chief.

14 Mr Hanna, in his official capacity with the Department, was involved in the writing of Documents 1 and 2 and his witness statement sets out his comments upon the claim to exemption for those documents. In an extension of his statement, he said he was involved in the preparation of Documents 4 and 6, and those documents were to inform the Government of the nature of the Synchrotron and provide estimates of costs and funding. The reports were for the purposes of consideration by Cabinet. In cross-examination he said that the money figure referred to in Recommendation 2 was a Cabinet decision which had not been disclosed, although the implication of the decision may have been publicly revealed. Documents 1 and 2 were not intended to go to Cabinet. He said that the Government was financially assisting the Project and there were negotiations which were continuing with potential providers of funds for operating costs.

15 As I understand the evidence of John Neve, he has been involved with the Synchrotron Project since the year 1999. After having made a submission to a Commonwealth steering group, in relation to the establishment of a Synchrotron facility, the Victorian Government opted to go it alone and, in June 2001, announced the establishment of a Victorian facility at Monash University. His witness statement provides the detail of successive steps which have been taken concerning the style of Synchrotron to be built and the publicly announced fundings which would be provided by the Victorian Government. He has stated that the Project Team is in negotiations with parties concerning the funding of the beamlines and that these negotiations are with the Commonwealth Government, other State Governments, and international and local agencies. He recited that he was the author of Document 3 and 7 and contributed to the writing of Document 5. He was involved in an advisory capacity in relation to Documents 4 and 6. His witness statement contains his evidence concerning the nature of each of the documents 3, 5 and 7. In cross-examination, he stated that the Victorian Government was not committed to pay for operating expenses, but a risk of blowout in expenditure lies with the Government. Whereas, Mr Hanna had said that the money figure set out in paragraph 13 of Documents 1 and 2 was correct at the time of those documents, Neve contradicted that and said that the figure, in his judgment, was wrong. In relation to Documents 4 and 6, he said that he believed those reports went to a Cabinet Committee. He put them on the Cabinet table. The report was commissioned by the Department, with the Minister's approval. He said that the costs estimate set out in Documents 4 and 6 were of a set of figures which would be embarrassing to disclose, whilst sensitive negations proceeded.

16 Max Roger said that he was the named author of Document 5, which he described as a draft brief prepared by one or more team members for the Minister for Innovation, which contains opinion, advice and recommendation regarding the Synchrotron Project. It was a draft which did not go to the Minister, as it was superseded by events and not developed further. Its disclosure would be contrary to the public interest because it was incomplete and contained inaccurate information. Further, he said, it contained information of a business commercial and financial nature and it would be contrary to the public interest to disclose that information. In cross-examination he said that Documents 4 and 6 were prepared as part of Cabinet discussion. It was commissioned by the respondent in expectation that it would be part of materials forwarded to Cabinet. The disclosure of those documents would be unreasonable, as it may impede negotiations with a number of prospective parties. There is much in the report which identifies options and prospective parties which should not be revealed. The report proposes specific roles for some organisations and release of this information would be damaging to negotiation.

17 In the applicant's case, both the applicant and one Tony Cutcliffe were called. Mr Cutcliffe is a business consultant who has had experience in both the public sector and the private sector. As with other witnesses, a typed statement of the applicant was tendered in evidence as the basis for his examination-in-chief. In it, the applicant states that he has been interested in the Synchrotron Project for a number of years. In his present shadow portfolio, he has shadow-ministerial responsibility for the Victorian Synchrotron. He said that he has received a significant spread of unsolicited communication from industrial, scientific and university communities questioning the financial assumptions which underlie the Government's decision to build the Synchrotron. By reason of his own researches and general widespread concern, he sought the production of the documents, which has been refused by the Department. In the course of his Parliamentary duties, he has visited Synchrotron facilities in England and in France, and has conferred with the CEO of each such facility. The applicant said that in August 2003, he viewed a copy of Documents 4 and 6, apparently upon the basis that he would not copy the documents, nor would he, in any way, disseminate the information contained therein. His statement of evidence asserts that the Macquarie Bank report estimates that the cost to the Government of the Synchrotron Project may exceed $530 million. From that, he asserts that it is in the public interest that there be disclosure of documents relating to the project. In cross-examination, he said that he was not asked to agree to the restrictions imposed in the letter of the Secretary of the respondent to him of 24 July 2003. He admitted, however, that the conditions contained in the letter were clear.

18 Anthony Charles Cutcliffe also put into evidence a typewritten statement made by him on 5 February 2004. He stated that he has a knowledge of and interest in biotechnology issues. He expressed the view that Victoria's decision to go it alone in constructing the Synchrotron facility meant that a considerable number of interstate potential users would be unlikely to use the facility. He stated that many of those would undertake Synchrotron research in Japan, the United States or other world facilities. He asserted that the costs quoted by the Government of $206.3 million for the construction of the facility is unlikely to be realistic and that the cost will be considerably above that figure. He said that costs of building and maintaining such facilities overseas were much higher than those postulated by the Victorian Government. In cross-examination, he agreed that the research community would use the Synchrotron, but he doubted that the extent of use would provide the money for recurrent expenditure for it. He conceded, however, that he had not spoken to potential users of the Synchrotron. He asserted that there was ill feeling between Governments when Victoria pulled out of the national project, which would explain interstate reluctance to use the Victorian Synchrotron.

19 The evidence given by each of the witnesses, save for the witness Hanna, was unsatisfactory to some degree. Messrs. Neve and Roger appeared not to give their evidence objectively and dispassionately, but revealed, it seemed to me, that they saw themselves as advocates in favour of the grounds for exemption claimed. Mr Honeywood's credibility was affected by the fact that he used publicly material that he obtained from the Macquarie Bank report, despite the clear implication, in my judgment, that he accepted the offer to read the reports upon the basis that he would be bound by the conditions expressly put to him prior to the receipt of those reports. Mr Cutcliffe also appeared to me to be acting as an advocate in favour of disclosure. A newspaper article written by him, and forming part of the statement of evidence of the applicant, revealed him as a longer-term critic of the Synchrotron proposal. I thought that much of his evidence was based upon speculation, rather than upon thorough and sustained research into this and other worldwide Synchrotron projects. These criticisms that I have made cause me to treat the evidence of all four witnesses to whom I have referred with a degree of caution.

20 I shall consider briefly the operation of each of the sections which are relied upon. As I have stated, Section 28(1) sets out the classes of exempt documents. The authorities show that a document does not need to be prepared for the sole purpose of submission for consideration by Cabinet. The exemption is raised correctly, if that were one of the purposes for which the document was prepared.

21 Section 29 makes a document exempt from disclosure, if disclosure would prejudice relations between the State and the Commonwealth or any other State or Territory, or would divulge information or matter communicated in confidence, on behalf of the Government of another country or the Commonwealth or State or Territory, or a person receiving the communication on behalf of that Government, provided that such disclosure would be contrary to the public interest. The words "prejudice relations" in Clause (a) are discussed at some length and meaning given to them by Judge Bowman in Clarke v Department of Treasury and Finance [2003] VCAT 1040. I refer also to Re Evans v Ministry for the Arts (1986) 1 VAR 315.

22 To acquire the protection afforded by Section 30, a document must have the characteristics to which I have referred earlier. In Penhalluriack v Department of Labour and Industry (County Court 19 December 1983) Judge Lazarus said:

"It is sufficiently apparent that the purpose of this provision is to protect the deliberative processes of Government and to ensure that measure of confidentiality which will enable policy and the like decisions to be taken after the frankest possible interchange of views and ideas between officers of the Public Service and between them and their Minister, as well as between members of the Ministry."

23 The respondent must satisfy that disclosure is against the public interest. Of course, information which is innocuous, out-of-date, or already in the public arena, would assist in suggesting that disclosure was not contrary to the public interest. The public interest override is a balancing exercise, between protecting documents containing confidential information on the one hand, and in the public interest in the community having access to documents which are of concern generally to the community.

24 Insofar as Section 34 is concerned, the reliance of the Respondent is upon sub-section 4(a)(ii). That sub-section provides that a document is an exempt document if, in the case of an agency engaged in trade or commerce, information of a business commercial or financial nature that would, if disclosed, be likely to expose the agency unreasonably to disadvantage. Before Section 34 springs into operation, the respondent must satisfy the Tribunal that the respondent was engaging in trade or commerce. I shall deal with this question when considering the particular exemptions.

25 I turn then to a consideration of the particular documents for which exemption is claimed.

26 Documents 1 and 2 are expressed to be a brief from Neil Edwards, Secretary, Department of State and Regional Development, to the Premier and to the Minister for State and Regional Development. The brief concerns the Synchrotron Project. Because the documents are for all practical purposes identical, argument has been addressed to them as a single document. Initially, reliance was placed upon Section 28(1)(ba) of the Act. Having read the document and considered the clause, I do not think that clause can be relied upon to obtain exemption for these documents. Indeed, in very detailed, careful and attractive written submissions, counsel for the respondent pressed no submissions under that clause. In relation to Section 28(1)(d) of the Act, I am not satisfied that the words in parenthesis were not made public well before this document was produced. Accordingly, I conclude that Recommendation 2 is not exempt from production. The respondent claims that paragraph 2 and the first sentence of paragraph 11 relate to decisions of Cabinet, which decisions have not been made public. What I have said in relation to Recommendation 2, seems to me to apply equally to paragraphs 2 and 11 and I conclude that they are not exempt from disclosure. The respondent relies upon Section 30 of the Act in relation to its claim for exemption for paragraph 13. It does not seem to me that Section 30 has application, despite the applicant's concession, because the matters set out in there do not easily fit the description of matter in the nature of opinion, advice or recommendation. It seems to me to be no more than a statement of fact as it existed at that time. However, even if I am wrong in that conclusion, it seems to me that it is not contrary to the public interest to refuse exemption for that paragraph, having regard to the conflicting figures which appear in exhibit "1", being a document tendered by the respondent. Accordingly, I reject the respondent's claim for exemption for the remaining parts of Documents 1 and 2, not already released to the applicant.

27 In formulating these reasons, it is important that I do not disclose any of the materials for which exemption is sought. The reason for this is obvious. It seems to me that I do not stand in breach of my own constraint if I recite the Recommendation to the Minister in relation to Document 3. It is as follows:

"That you approve the proposed content of a submission to the Economic Development Committee of Cabinet on the way forward for the Economic Synchrotron Project."

It is clear that the enclosed document is an outline of the submission and does not contain the details of the submission itself. I conclude that it is a document prepared for briefing the Minister in relation to issues to be considered by a Cabinet Committee. The phrase "in relation to" is considered by Macnamara DP in Re Marple v Department of Agriculture (1995) 9 VAR 29 at 51. Accordingly, I conclude that the respondent's claim to exemption is soundly based and its decision is to be affirmed.

28 Documents 4 and 6 have been produced by Macquarie Bank and can be described generally as relating to the viability of the Australian Synchrotron Project. The primary contention of the respondent is that they are protected from release by virtue of Section 28(1)(b) and (d). It is asserted by the respondent that the evidence of all three of its witnesses should satisfy the Tribunal that the reports were commissioned and prepared for the purpose of submission to Cabinet. The applicant submitted that whatever may have been the purpose of those who commissioned the reports, it was not made known to Macquarie Bank that the reports would be submitted to Cabinet, nor might it reasonably be inferred that Macquarie Bank ought to have known that such was the intention. Whether those who commissioned the reports overtly informed Macquarie Bank that the reports were intended to be submitted to Cabinet does not seem to me to take the reports outside the purview of Section 28(1)(b). It seems to me that on any proper reading, that the commissioning of the reports was likely to have one fundamental purpose, having regard to the extent of the project and the capital sums required to finance it, namely, that it would be the basis upon which Cabinet and, therefore the Government, determine whether or not to pursue the project. It seems to me that the relevant clause in the Section refers to the purpose for which the report was commissioned by those who commissioned it. I do not consider, contrary to the applicant's submission, that exemption is contingent upon the provider of the reports being made aware of its ultimate use. In any event, having regard to the terms in which the reports were sought, and to the matters which I have just referred, I believe I can readily infer that Macquarie Bank, in preparing the reports, believed that they were being prepared for the purpose of consideration by Cabinet. The respondent has submitted, correctly, in my view, that external consultants, as Macquarie Bank were, are to be regarded as "officers" of the respondent for the purposes of the Act. (See definition in Section 5(1) of the Act). Mr Neve gave evidence that he had put Documents 4 and 6 in the Cabinet room before the Cabinet Committee met. He did not know what happened to the documents thereafter. I was somewhat concerned about this evidence, as it appeared to be given as something of an afterthought. However, I am not prepared to find that Mr Neve was inaccurate in his recall and I do not believe that he would commit perjury over such a matter, or at all for that matter. Accordingly, I accept that he did so place the documents in the manner he stated and, I infer that the documents were considered by the Cabinet Committee. Further, for reasons I have expressed previously, I find it easy to infer that, at some stage, the Macquarie Bank's reports were considered by Cabinet itself. This recital also satisfies me that the respondent is correct when it contends that the exemption claimed for Documents 4 and 6 is justified pursuant to Section 28(1)(d) of the Act. Accordingly, I do not need to consider the other sections relied upon. The result is that the decision of the respondent that the documents were exempt from disclosure is made out.

29 The respondent bases its claims to exemption in relation to Document 5 on Sections 30 and 34(4)(a)(ii) of the Act. The document, which is dated 19 September 2002, is described as being a brief from Max Roger to the Minister for Information concerning the Australian Synchrotron Project. It is a document which relates to the various design options of the Synchrotron, particularly the number of beamlines which might be utilised, and considers the cost of each option and the means of funding, together with an analysis of the industries who might utilise the proposed Synchrotron Project. The evidence of the witnesses, Roger and Neve, was that it is a draft document which did not go forward to the Minister and was not considered by him. It is said that the draft was superseded by events and was not developed beyond that stage. It is asserted that the document is incomplete and contains inaccurate information. However, no evidence was led to satisfy me that that was so. Indeed, in cross-examination Mr Neve conceded that the document was not wrong when it was written. He also conceded that the document contained some information which is not current. I accept that Document 5 is a document of the kind subject to Section 30 of the Act. However, having read the document and, noting that it is now almost 2 years since it was brought into existence, the arguments put by the respondent do not satisfy me that it would be contrary to the public interest to release the document. This is not a case where the views expressed in the document may be characterised as preliminary views which do not represent a final position. The evidence is that the information was accurate at the time when it was produced. The dangers to which Judge Davey VP referred in Re Moloney v Department of Human Services (2001) 18 VAR 238, do not appear to me to exist in the instant case. Having drawn that conclusion, it is necessary for me to consider Section 34 of the Act. Exhibit "1" provides a good starting point for determining whether, in relation to the Project, the respondent is an agency engaged in trade or commerce. It seems to me that the nature of the Project is such that it is appropriate to so describe it. That finding makes it necessary to consider whether, if the information contained in Document 5 were disclosed, it would be likely to expose the Department unreasonably to disadvantage. One of the reasons put forward by the respondent in support of the finding that it was an exempt document, was that release of the document might create the misleading impression that the Minister had received the document, was influenced by its contents and acted upon its recommendations. In that regard, it is notable that the face page containing the Recommendation has space for the signature of the Minister, but no signature appears thereon. I am not impressed by this argument. Secondly, it is said the document is incomplete and there is reference to the fact that, at two points in paragraph 21, there are indications that further research is required. However, looking at the document overall, it does not seem to me that it is incomplete. Finally, given the period of time which has passed since the date on which the document was brought into existence in the present time, I don't see that the release of the document is likely to prejudice the Government's stance in relation to negotiations for capital or other recurrent expenses. In making a determination that the document should be released, I have given due consideration to the matters set out in Section 34(2). Finally, in this regard, I note the applicant has made a concession that there is no significant public interest in the release of Attachment 4 to the document and I shall direct the release of the document, save and except for Attachment 4.

30 The applicant asserts that Document 7 is in fact two documents. It seems to me more correctly described as a document in two parts. The first part is a brief from Mr Neve to the Minister of Innovation, setting out, by way of a series of submissions, the matters which should influence the Minister to sign Attachment 1, to enable its lodgement for consideration by a Cabinet Committee. The evidence of Mr Neve is that the first part of the document was created to brief the Minister in relation to issues to be considered by Cabinet. In the light of that evidence, and having given consideration to the nature of the brief, it seems to me that the document, as a whole, is a Cabinet document and, therefore, exempt from release under Section 28(1)(d) of the Act. Accordingly, in relation to Document 7, I affirm the decision of the respondent.

1. Within thirty (30) days the following documents be released to the applicant:

(a) Documents 1 and 2, being brief from Neil Edwards to the Premier and Minister for State and Regional Development;

(b) Document 5, being brief from Max Roger to the Minister for Innovation (with the deletion of Attachment 4).

2. In all other respects the decisions of the respondent are affirmed.