For the Respondent: Mr J G Santamaria QC with Mr K Mueller

1. This is an application to review a decision of the respondent refusing the applicant access to certain documents sought pursuant to the Freedom of Information Act 1982 ("the Act").

2. The disputed documents are described by the respondent as follows:

3. The respondent asserts that the documents are exempt for two reasons: first, because they were prepared on behalf of the Premier for the purpose of submission for consideration by the Cabinet [s.28(1)(b)]; secondly, that disclosure of the documents would involve the disclosure of a deliberation or decision of the Cabinet [s.28(1)(d)].

4. Evidence in support of the asserted exemptions was given by Benjamin David Hubbard, Group Director, Policy and Preparation, Office of the Premier.

5. In his written statement, Mr Hubbard asserts as follows, inter alia:

(i) It was his responsibility to prepare submissions on behalf of the Premier which related to subjects which the Premier wished to have discussed in Cabinet.

(ii) In about February 2000, he became responsible for the preparation of such a submission on behalf of the Premier "upon a particular subject", which submission was to be considered by the Cabinet under the agenda item "Current Political Matters".

(iii) In late February 2000 he made contact with Mr Bill Shannon of Shannon's Way and asked him to prepare two reports for inclusion in the submission.

(iv) The two reports (the disputed documents) were delivered on or about 12 April 2000.

(v) On or about 14 April 2000 he provided to the Premier a Cabinet submission which he had prepared on the Premier's behalf on the "particular subject" which was to be considered by Cabinet under the agenda item "Current Political Matters". The disputed documents were part of the submission.

(vi) On 17 April 2000, the disputed documents were considered by Cabinet.

6. In his viva voce evidence Mr Hubbard qualified the assertions in the last paragraph by saying that immediately prior to the Cabinet meeting he placed in the Cabinet room sufficient copies of the disputed documents for each Cabinet member. He was not present during the Cabinet meeting, but when the meeting ended he entered the Cabinet room and observed that all the copies had been taken. From that fact, and the fact that the disputed documents were part of the submission which was to be considered by Cabinet that day, he assumed that the disputed documents had in fact been considered by Cabinet.

7. I will refer in due course to other evidence given by Mr Hubbard under cross-examination.

8. The respondent bears the onus of satisfying the Tribunal on the balance of probabilities that at least one of the exemptions asserted is made out. In this regard the respondent relies on the direct evidence of Mr Hubbard that the disputed documents were, indeed, prepared on behalf of the Premier for submission for consideration by the Cabinet. Unless the evidence is inherently improbably and/or the witnesses demonstrably unreliable, the Tribunal will usually accept the assertions made.

9. For the purpose of the exemption asserted pursuant to s.28(1)(b) it is unnecessary for the respondent to prove that the Cabinet actually considered the disputed document: re Pullen and Alpine Resorts Commission (unreported) AAT of Vic, Macnamara DP, 23 August 1996; re Wilson and Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455.

10. Mr Scott, on behalf of the applicant, applied pursuant to s.56(3) for confidential access to the disputed documents to enable him to consider the validity of the exemptions asserted. The Tribunal declined to give such access, but the documents were placed in Mr Hubbard's hands to enable him to be questioned about the circumstances in which they came into existence, the dates they bore and other features and characteristics which, without disclosing the information sought to be protected, enabled Mr Scott to test the reliability of Mr Hubbard's evidence.

11. It is certainly true to say that when the facts and circumstances were examined under the microscope, some blemishes appeared, but not to a degree which caused me to doubt the underlying reliability of Mr Hubbard's central assertion. In forming this view I had the opportunity to inspect the disputed documents. I did so, inter alia, for the purpose of enabling me to consider whether there was anything about their character which bears, one way or the other, on the probability that they came into existence in the circumstances and for the purpose asserted by Mr Hubbard. In this regard I was informed that it was, and is, the practice of this Government and previous Governments to include in the agenda for each Cabinet meeting an item "Current Political Matters". Having examined the disputed documents I am not at all surprised that their contents would be discussed by Cabinet under an agenda item "Current Political Matters". Were I to elaborate, the protection sought would be compromised. It is sufficient to conclude that the contents of the document support, rather than detract from, the assertion made by Mr Hubbard that they were prepared on behalf of the Premier for submission to Cabinet.

12. In all these circumstances I am satisfied on the balance of probabilities that the exemption asserted under s.28(1)(b) is made out. In those circumstances it is unnecessary for me to consider the exemption asserted under s.28(1)(d). The decision of the respondent to refuse access to the disputed documents is therefore affirmed.