Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657

Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 - VCAT 2004 case summary — Zoe

[53]

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.

[57]

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.

[58]

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.

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Judgment (63 paragraphs)

Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 (27 August 2004)

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