1. Howard Ian (Herschel) Landes is substituted as applicant for H. & J. Landes Enterprises Pty Ltd.
2. Respondent's determination affirmed.

Mr Chris Young of Counsel instructed by DLA Phillips Fox

1. In this proceeding the applicant seeks access pursuant to the Freedom of Information Act 1982 to certain advice tendered by the respondent Vicroads to the Minister for Roads and Ports.
2. On 29 April 2008 the Premier, Mr John Brumby issued a media statement headed 'New congestion plan to ease peak pressure'. The Premier announced the institution of a new plan entitled 'Keeping Melbourne Moving' which would according to his statement:

Standardise the more than 150 clearways within 10km of the Melbourne CBD from 6.30 am to 10.00 am and from 3.00 pm to 7.00 pm, helping traffic flows during peak traffic time. Clearways will also be more strictly enforced.

1. According to this statement this plan emerged from the 'Premier's congestion roundtable' which was held earlier in 2008 'with community and industry leaders'.
2. The 'clearway' system is one that has been used on arterial roads in metropolitan Melbourne for several decades adding extra available lanes during morning and evening peak periods by prohibiting parking during those periods. The clearway system has and remains a strictly enforced one with offender's vehicles being towed. The announcement represented a very substantial extension of the hours during which most clearways operated and caused some vigorous public debate.
3. Predictably traders in strip shopping centres were strongly critical of the proposal which would reduce parking facilities for their customers.
4. One of those critics was the applicant in this proceeding, Mr Howard Ian (Herschel) Landes whose company carries on retail businesses at 211 and 194 Bridge Road, Richmond. Bridge Road is one of the arterial roads subject to the clearway system. On 12 May 2008, Mr Landes attended a meeting with Mr Tim Pallas, the Minister for Roads and Ports at the Minister's office 'to discuss the announcement in regards to extended clearways times'. A Ms Nellie Dicks also attended the meeting. According to Mr Landes and Ms Dicks, the Minister announced that 'these changes were not negotiable' and the purpose of the meeting was to discuss 'issues such as parking arrangements, signage or other local implementation issues'.
5. There was abortive legal action in this Tribunal and threatened legal action in the Supreme Court. On 5 June a Memorandum of Advice from Vicroads, the popular name of the Roads Corporation established by the Transport Act 1983 was submitted to the Minister for Roads and Ports. It was over the signature of Ms Dionne Lew, Director Media and Communications, Mr Ted Vincent, Executive Director, Regional Services and Mr Garry Liddle, Chief Executive. The memorandum noted amongst other things that the Victorian Government has announced that a 'Clearways Implementation Reference Group (CIRG) would be established'. It proposed a process whereby this group would receive submissions with the submission period open for some 28 days. The memorandum stated that the submissions would likely:

Highlight a number of local issues around which Vicroads or the Department of Transport may be able to offer support, potentially in association with others. For example, Vicroads may be able to assist in the development of additional signage to support local councils to raise awareness in the community around existing or alternative parking sites.

1. Submissions were to be referred to the CIRG. Paragraph 18 stated:

It is advised that no extended clearways be implemented until after the submissions process has closed, the CIRG has had an opportunity to consider the submissions and Vicroads has had an opportunity to communicate the results of consultation to the community. This is consistent with legal advice which recommended a process as close as practicable to the Code of Practice for Clearways on Declared Arterial Roads.

1. Vicroads had placed an advertisement in the press under the heading 'Keeping Melbourne moving have your say on extending clearway hours' included the following:

As part of the plan, the Government is considering extending and standardising clearway hours, to keep people moving on busy roads. Vicroads is now asking interested parties to submit their feedback, on local issues, around the implementation of extended clearway hours. (emphasis added)

1. The advertisement stated that public submissions could be received between 16 June 2008 and 5 pm, 14 July 2008.
2. According to the evidence of Mr Brown, Executive Director of Regional Services for Vicroads, a number of submissions arrived late but were still considered for the purposes of the CIRG. Upwards of 700 submissions were made. Vicroads engaged a consultant to 'digest' those submissions and to prepare a presentation to the CIRG which met on 4 August 2008. The CIRG apparently consisted of some 16 persons about four of whom were Vicroads officers. The Municipal Association of Victoria had a representative on the group, though the most affected inner city municipalities were not directly represented.
3. On 4 August the consultants provided a Powerpoint presentation to the group. The group met under a set of guidelines which had been adapted from a Code of Practice on clearways on arterial roads published in the Victorian Government Gazette on 16 September 2004 under the provisions of the Road Management Act 2004 was the basis for those guidelines. The most significant departure from the procedure laid down in the Code was removal of the requirement for communication to all interested land owners and occupiers and the shortening of the consultation period from 60 days to 28 days. The group issued some 15 implementation recommendations set out in bullet point form on a single A4 sheet of paper. These recommendations directly tracked the Powerpoint presentation made to the group by the consultant.
4. According to Mr Brown on 29 August 2008 the Minister for Roads and Ports announced that the extension of clearway hours in the morning would occur immediately with the extension of afternoon hours to occur 'early in 2009'.
5. When this matter was heard in the Tribunal on 30 October 2009 the Premier's announcement of 29 April 2008 was yet to be fully implemented. Mr Landes' company carries on business in Bridge Road, Richmond, one of the city's major inner-arterial roads. Clearway restrictions on Bridge Road as at the date of hearing, far from having been moved forward to 3.00 pm, remained at their previous start time - 4.30 pm.
6. Mr Brown's evidence as to when implementation of the Premier's announcement began was contradictory. In cross-examination by Mr Landes, he conceded that implementation had begun on Punt Road before the CIRG had met on 4 August. Being taken to some document in re-examination by Mr Young, Counsel for Vicroads, Mr Brown said that the implementation began after the 4 August meeting though it is fair to say that his evidence on both occasions was diffident and imprecise.
7. The suggestion in cross-examination by Mr Landes that implementation began before 4 August was based on documentation before that date seeking quotations for the provision of signage, inter alia in Punt Road. Mr Brown said in re-examination that these quotations were sought before 4 August so that Vicroads would be prepared to implement when a decision to implement was taken.
8. On 9 February 2009, Mr Landes forwarded a facsimile transmission requesting access under the Freedom of Information Act 1982 to the following documents:

All documents, dates, instructions, drawings, details of a non-financial nature, tenders between Deneefe Signs, RNS Signs for all clearways within 10km of the CBD.

Any artworks, drawings for clearway signs production/installation for clearway along Punt Road, Hoddle Street, High Street Malvern, Toorak Road and Bridge Road;

All communication, tenders etc with RNS Signs prior to 30 July 2008 in regards to production of clearway signs;

All communication between the Minister and Vicroads in regards to the decision to amend clearway times and the decision to implement clearway times.

1. The respondent Roads Corporation (Vicroads) identified some 10 documents within the scope of the request granting access to one and refusing access to nine. On internal review part of one of the documents claimed to be exempt was released to Mr Landes but the initial determination was otherwise affirmed. On 29 June 2009 the application commencing this proceeding was filed seeking review of Vicroads' determination. By the time the proceeding came on for final hearing the only document remaining in dispute was a memorandum from Mr Gary Liddle, Chief Executive of Vicroads to Mr Pallas, the Minister for Roads and Ports re 'Advice on clearway hours' and dated 7 August 2008. Access had been granted to the document with the exception of paragraphs 5 to 11. The exemption claimed for those paragraphs was the one established under Section 30(1) of the Freedom of Information Act 1981 which exempts from access under the Act documents which are briefly described as 'internal working documents'.
2. Mr Landes received access to the headings and the background to the memorandum together with a description of the options. He also was given access to the final paragraph (12) of the memorandum which stated:

It is recommended that the Minister note the above advice in relation to the timing of any announcement regarding clearway hours.

1. In effect the substance of the advice given to the Minister had been withheld.
2. Before turning to a consideration of the issues arising in this proceeding it is appropriate to set out the statutory framework governing the management of clearways.

1. The Road Management Act 2004 according to Section 1(2) inter alia:

Establishes a new statutory framework for the management of the road network which facilitates the co-ordination of the various uses of road reserves for roadways, pathways, infrastructure and similar purposes.

1. Where Vicroads considers that a road provides a principal link for the movement of people and goods, inter alia 'across or around cities' it may declare such road to be an arterial road in accordance with Section 14 of the Act. By virtue of Section 37 of the Act Vicroads becomes the 'road authority' for 'the part of the roadway used by through traffic'. Schedule 4 of the Act sets out specific traffic management powers of State road authorities and in the case of Vicroads empowers it to 'manage clearways' (Clause 2(2)(a)). Section 38 of the Act sets out a series of matters which road authorities 'must have regard to' in exercising their functions and powers. Section 38(1)(f) refers to 'any relevant Code of Practice'. Sections 24 to 30 of the Act deal with Codes of Practice whose main purposes according to Section 24(1) are as follows:

(1) The main purposes of Codes of Practice are to provide practical guidance -

(a) by setting out benchmarks of good practice in relation to the performance of road management functions by road authorities and the conduct of works managers, infrastructure managers and providers of public transport;

(b) by clarifying or determining how the operational responsibility for different parts or elements of a road reserve is to be allocated between road authorities;

(c) to road authorities in determining how to allocate resources, develop policies, set priorities and make road management plans;

(d) in relation to the matters specified in section 25.

1. Section 30 provides for these Codes to be laid before both Houses of Parliament and empowers Parliament in certain circumstances to disallow them.
2. Section 22 of the Act empowers Ministerial directions in the following terms:
   1. Power of Ministers to give directions

(1) If the Minister or a relevant Minister considers it in the public interest to do so, the Minister or relevant Minister may, after complying with subsection (2), direct a road authority -

(a) to perform a function or exercise a power of the road authority under this Act; or

(b) to perform a function or exercise a power of the road authority under this Act in the manner or subject to the conditions specified in the direction; or

(c) not to perform a function or exercise a power of the road authority under this Act.

(2) The Minister or the relevant Minister must before making a direction give the road authority the opportunity to comment on the proposed direction.

(c) may specify the case, class of case, period of time or other circumstance in which the direction is to apply.

(4) A road authority must publish a copy or summary of any direction in its annual report.

(5) A road authority must give effect to a direction under this section.

1. There is a further power for the giving of Ministerial directions under Section 31 of the Transport Act 1993 under which statute Vicroads (the Roads Corporation) was incorporated. That section states:

(1) The Minister may delegate to any person employed under this Act or the regulations any of his powers or duties under this Act or section 98 of the Road Safety Act 1986, other than -

(b) his power to make determinations under section 89 of this Act; and

(c) his power to give directions under section 31 of this Act.

1. The then Minister for Transport adopted a Code of Practice for clearways on declared arterial roads published in the Victorian Government Gazette dated 16 September 2004. Clause 7.2 provided inter alia:

Vicroads should give notice of any proposal to implement, or amend, a clearway on an arterial road to the relevant municipal council, or councils, in which the length of arterial road is located together with all abutting property owners and occupiers likely to be affected by the proposed clearway ...

1. Clause 7.3 provided that after the giving of notice Vicroads should consult with the relevant council and:

Conduct appropriate consultation with abutting property owners and occupiers to whom notice has been given, and as far as possible with other stakeholders (eg. public transport operators) likely to be affected by the proposed clearway.

1. Section 30 of the Freedom of Information Act 1982 provides inter alia:

(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

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

1. It will be seen that this exemption requires the establishment of two distinct matters, first, relative to the nature of the document and secondly based upon the criterion of 'the public interest'. To fall within the first limb of the exemption the document must be such that its release would:

Disclose matter in the nature of opinion, advice or recommendation prepared by an officer ... in the course of or for the purpose of, the deliberative process involved in the function of [a] Minister or of the Government.

1. Speaking of the corresponding provision in the Commonwealth statute the Commonwealth Administrative Appeals Tribunal said that deliberative processes were the processes of reflection, the process of thinking. Waterford v Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588, 606.
2. In the present case having perused the passages for which exemption is sought, it is clear to me that they fall within this first limb. They are recommendations and advice by Vicroads and/or its Chief Executive to the Minister in the course of discharge of his functions. They represent a contribution to the Minister's 'thinking' as to how to proceed with respect to the clearway project.
3. Mr Landes did not have the advantage of seeing the document in question, nevertheless he did not as I understood him, dispute the view that the passages for which exemption was claimed fall within the first limb of the exemption. The dispute in this proceeding therefore is what the public interest requires.

1. Mr Landes said:
   1. The basis of the withholding this document was that such information was speculative because a statutory body was involved in making a deliberation and therefore disclosure of advice or recommendation would be contrary to the public interest.
   2. The decision-maker is incorrect because the decision had already been made.
   3. The decision-maker has failed to establish that disclosure of the document is contrary to the public interest as stipulated under Section 30(1)(b) of the Freedom of Information Act.
   4. There is a clear public interest in the release of the complete document because the Minister had already declared the announced hours of the clearway operation as non-negotiable and the public consultation process to consider implementation that results in that decision.
   5. There was a clear positive public interest in the release of the complete document because the public and interested parties are entitled to understand all issues relating to the implications that have been submitted to the decision and therefore any changes to that decision.
   6. The document is also relevant to the question whether the Road Management Act 2004 had been complied with in the making of the decision to extend clearway times, or whether there had been a breach of the Act in that the Minister had made the decision and not the road authority responsible for making such a decision.
2. In its statement of public interest ground, Vicroads said that disclosure would not_:_

Reveal any illegality, impropriety or wrongdoing by the respondent, nor [would] it reveal whether the respondent discharged its functions and statutory obligations placed upon it in relation to the policy development and management of clearways.

1. It continued that the documents in question reflected Government decision making 'at a very high level on a sensitive issue'. It said there was a:

Real potential for the impairment of the consultative process of Government decision-making. Public officers and Ministers may be reluctant to seek and canvass a range of views on sensitive subjects such as this one in future, if they are aware that the views they expressed may be publicly released.

Disclose possibilities rather than [the] final position of the Government. ... and [would] only provide an incomplete picture of the discussions. That would cause confusion and unnecessary debate and would generally 'prejudice the integrity of the decision-making process'.

1. Mr Young who appeared on behalf of the respondent submitted that the criticisms of the decision making process here were incorrect. He said there were two distinct decisions, the first made by Government and announced by the Premier on 29 April being a decision in principle to extend clearway arrangements across the inner metropolis. The second being a decision made by Vicroads on 29 August relative to implementation of the decision in principle.
2. He submitted that since Vicroads according to Section 31 of the Transport Act 1992 operated under the general direction of the Minister, there was nothing inappropriate in the Government making the first decision. He referred to the remarks of Woodward Northrop and Sheppard JJ constituting the Full Court of the General Division of the Federal Court of Australia in the Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust [1990] FCA 163; (1990) 22 FCR 495, 521 where their Honours said that when an agency is operating under the general direction and control of the Minister:

It may mean the unfettered or unrestricted direction and control or it may mean direction and control on policy questions as distinct from detailed matters.

1. He submitted that whichever was the correct interpretation of the relevant phrase in Section 31 of the Transport Act this process was in conformity with it.
2. He noted that Mr Brown's evidence was that Vicroads considered employing the Code of Practice as the basis for consultation on the implementation of Government's decision relative to the clearway but concluded that it was impracticable for two reasons. First, because it was too onerous a task to attempt to give notice to all abutting landowners and occupiers which would cover literally thousands of properties in the inner metropolis and secondly that since there was an element of diligency from Government in implementation of the 60 day period the consultation should be abridged. In Mr Young's submission, Vicroads had turned its mind to the Code of Practice and had rejected its employment in the present case for rational and defensible reason. He submitted that the process of having regard to, merely entailed consider in the relevant subject matter, not necessarily adopting it or giving effect to its requirements. He referred to the remarks of Sackville J as a primary judge in the Federal Court of Australia in Singh v Minister for Immigration and Multi-cultural Affairs [2001] FCA 389; (2001) 109 FCR 152, 164 [58]. He noted in particular that at [57]:

In my view, s.54(1) does not require the Minister (or his or her delegate) to take into account the information in the application [which the Minister is obliged to have regard to] is a fundamental element in the decision-making process.

1. Finally, he referred to the remarks of King CJ of the Supreme Court of South Australia as a member of the Full Court in Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161, 186 where speaking of the words 'have regard to' His Honour said:

Those words have generally been construed, in a context such as this [this was a planning appeal], as requiring the authority concerned to take the state of matters into account and consider them and give due weight to them, but without being bound to comply with them. Ultimately the authority's discretion remains unfettered.

1. The present proceeding is one brought under the Freedom of Information Act. These matters as to the nature of Vicroads' and the Minister's decision making processes are brought before me for the purposes of considering the public interest criterion in the exemption claimed. I am not in the role of, say, the Ombudsman considering the appropriateness of the Government's actions nor in the role of a Royal Commission or Parliamentary Committee of Inquiry.
2. Here Mr Landes says that the decision making process has broken down in a number of respects. Interested parties have been called to some sort of consultation only after the major decision has been made. The 'script' was written by the Vicroads' consultants. The group convened for the consultation omitted key persons such as the actual landowners and occupiers affected and the Councils affected. He contended that Vicroads' action in seeking quotations for signs pre-empted the consultation process. He said that rather than being able to identify particular Ministerial directives or a particular decision taken by the Government, the Minister or Vicroads, one was left merely to infer what had been decided from the actions taken. None of this he said was in accordance with the Road Management Act.
3. I am not called upon in the context of a freedom of information proceeding to pronounce on whether Mr Landes' criticisms of the process or Mr Young's defence of them are correct. It is sufficient to note them as matters of public debate. I am prepared to infer that there is widespread dissent amongst interested parties from the Government's decision in principle. This may be judged by:

SECTION 30(1)(B) - PUBLIC INTEREST - CONCLUSION

1. Mr Young made some more detailed submissions as to how the public interest should be judged. I find it unnecessary to go to the detail of those submissions. In particular as has famously been said, the categories of negligence are never closed. Similarly, I believe the categories of public interest which may arise relative to the decision making process are never closed and any formulation which seeks in a single paragraph or set of paragraphs exhaustively to describe the matters which may arise for consideration is inappropriate.
2. In the present case I accept the submission that if the Minister has sought opinion, recommendation and advice from Vicroads through its Chief Executive on a highly sensitive and highly contentious issue this is significant as to where the 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 support for some of the criticisms made in the advice which the Minister received, the ability of Ministers to obtain that sort of advice would be prejudiced. Either Ministers would be deterred from seeking it at all or they would seek it in some unwritten form so that it could not thereafter be canvassed following release under freedom of information legislation. The public interest rationale here is to some degree along the same lines as the rationale for the high value which the law attaches to client legal advice privilege.
3. In my view the public interest criterion required by the second limb of the Section 30(1) exemption has been made out.

1. The Tribunal has a residual discretion under the so called 'public interest override' under Section 50(4) of the Freedom of Information Act to release an exempt document where the public interest 'requires it'. This override power does not extend to Cabinet exemptions under Section 28 of the Act or to the personal affairs exemption created by Section 33 of the Act. The application of this 'override' is problematic where the exemption which one might consider overriding itself contains a public interest criterion. In Newnham v Victoria Police Force (1997) 12 VAR 387, MacDonald J considered that where under Section 30(1)(b) a Tribunal was required to consider the incidence of the public interest and determined that the public interest held against release of a document logically there was no scope for the Section 50(4) override. His Honour said:

The Tribunal, having reached its conclusion on the question of public interest as was necessary for it to decide under s.30(1)(b) in order to determine whether the document was an exempt document, there was no need to address effectively the same issue in exercise of its power under s.50(4) of the Act.

(1997) 12 VAR 387, 394

1. In His Honour's opinion the consideration of public interest in those circumstances was a single stage balancing process. In Pullen v Alpine Resorts Commission (unreported Administrative Appeals Tribunal or Victoria 23 August 1996) I had considered that the public interest criterion under Section 30(1)(b) of the Act focussed upon public interest issues peculiar to the deliberative process and that it was possible and appropriate in given circumstances to consider a wider range of public interest matters under Section 50(4). Hence a two stage process may be appropriate. In Osland v Secretary Department of Justice [2007] VSCA 96, the Court of Appeal appeared to adopt a two stage process though they did not refer to Newnham's case. I respectfully favour the two stage process which I described in Pullens case.
2. Do the public interest considerations raised by Mr Landes outweigh or countervail the public interest considerations advanced by Vicroads which I have accepted? In my view they do not. Mr Landes contended that the passage that has been withheld constitutes 'the last piece of the jigsaw'. This is an interesting analogy. People sometimes use it to refer to some final piece of information which 'makes sense' of a set of circumstances which otherwise cannot be fathomed. A consideration of the metaphor however points in another direction. The last piece of a jigsaw may simply be a small area of the sky. It is necessary to make the picture created by the puzzle complete; but if it is never added, it is obvious enough to any person viewing the picture with the gap in it what the missing piece depicts. It does not represent the 'key' to understanding the picture. That is the situation in this present proceeding. Both in the evidence which he advanced and in his cross-examination of the respondent's witness Mr Landes who is not so far as I can make out a qualified lawyer showed great skill in describing and fully ventilating his grievances against Vicroads and the Government's decision making processes. These matters can be fully debated without access to the disputed document hence there is no requirement of the public interest whether one gives it the imperative quality that it has been held to possess for the purposes of Section 50(4) or some meaning based upon a mere balance favouring (to use a more neutral term) the release of the disputed passage.